ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-04-1396-01
DATE: 2012/JULY/11
BETWEE N:
Gerald Fraser
Self-represented
Applicant
- and -
Tracy Logan
Cheryl Lean, for the Respondent
Respondent
Roderick Rolston, Office of the Children’s Lawyer
HEARD: March 26, 2012
The Honourable Mr. Justice J. M. Johnston
RULING ON MOTION
[ 1 ] This is a ruling in relation to two motions argued before me March 26, 2012. Pursuant to the Order of Justice MacLeod-Beliveau dated March 8, 2011, the Motion of Contempt initiated by the Applicant, Gerald Fraser (hereinafter referred to as “Father”) and the Motion to Change of the Respondent, Tracy Logan (hereinafter referred to as “Mother”) are to be heard together.
[ 2 ] I will outline the background facts, as they apply to both motions and then deal with the Motion for Contempt and finally, address the Motion to Change the custodial provisions of the Divorce Order.
Background Facts:
[ 3 ] Gerald Fraser and Tracy Logan are parents of two children, namely, Kaelan James Fraser, born May 14, 1996 (now 16 years of age) and Ryan Blake Fraser, born February 26, 1999 (now 13 years of age). Father is a Major in the Canadian Forces at CFB Trenton. Mother is employed with the Ministry of Community & Social Services in Belleville. The parties were married on October 9, 1993, and separated September, 2004. The parents entered into Minutes of Settlement on February 2, 2006; paragraphs 1 to 4 and 7 of the Minutes of Settlement were incorporated into the Divorce Judgment granted by Justice Byers on February 6, 2006. Pursuant to the Order, Mother and Father were to share joint legal custody of the children, on an alternating weekly basis. All major decisions were to be made jointly, and each parent was to keep each other fully informed of the activities and events in the children’s lives including, but not limited to education, medical and extra-curricular activities, professional appointments and schedules as soon as they became aware of it. Neither parent was to schedule the children for an activity that impinges on the other parent’s time without first having consent of that parent.
[ 4 ] The children’s principal place of residence for purposes of schooling and activities was to be Mr. Fraser’s residence. All holidays were to be shared equally, either alternating annually or divided on the same schedule annually.
[ 5 ] The Respondent Mother initiated a Motion to Change the Order of Justice Byers on December 22, 2009. Mother argued that the joint custody arrangement had not worked and that the children suffered pursuant to the arrangement. Mother alleged that Ryan suffered high anxiety due to the constant change in his residence and feeling that he had no control over his life. Mother further argued that the parties were unable to communicate in issues surrounding extra-curricular expenses and were “fraught with conflict”.
[ 6 ] Father served a Response to Motion to Change on March 3, 2010. In February, 2010, after an agreement between counsels, the parties began mediation efforts with Donalda Simmons. Mediation was terminated September 2, 2010.
[ 7 ] In May, 2010, Father took both Kaelan and Ryan on a vacation to Florida.
[ 8 ] Father planned a trip to Europe with both boys in July of 2010. Mother stated that Kaelan objected to going because of previous plans he had involving a hockey tournament. In his cross-examination upon his Affidavit, Mr. Fraser at page 8, lines 13 – 16, stated that Kaelan gave his reasons for not wanting to go as:
“We were just on vacation in May and – with me, and he’d been on vacation in March with Tracy and he thought this vacation was maybe one too many.”
[ 9 ] On the night of July 11, early morning of July 12, 2010, Kaelan was at his father’s house, the expectation that they would be leaving on July 12. Kaelan left his Father’s house after midnight and called his Mother from a church. According to the transcript of Ms. Logan, in her cross-examination upon Affidavit at page 102, line 19, she explained Kaelan’s state as follows:
“And he was hysterical and he said, ‘Mom you’ve got to come get me. I’m at a church.’ I was sleeping. I just bolted out of my front door and I went to the wrong church. I just – I figured it was the church by his Dad’s. I went bolting out looking for him and then I couldn’t find him, and so I had to calm myself down and I just went home and Gerry – I saw Gerry on my way home and Gerry just followed me in behind and – and accused me of hiding Kaelan in my van, which I didn’t. Then Kaelan came around the corner a couple of minutes later.
So my initial response was – like it was – it’s not something he ever did before. It freaked me out and he was screaming hysterically on the phone, so – so then when he – he showed up right after Gerry and I got back to the house and Gerry was insistent on speaking to Kaelan privately. So, Ryan was upset because it was dramatic and everybody was worked up and Gerry did not want all of us to talk about getting Kaelan calmed down and go home. He wanted to talk to him on his own. So I did that. I took Ryan inside and calmed him down. They talked for about an hour and they never got anywhere. Kaelan was sobbing with seat and I said, ‘You know Ryan needs to go to bed. Kaelan needs to go to bed. You can get together in the morning and talk.’”
[ 10 ] On the following day, Kaelan proposed his own residential schedule, namely, ten days with Father, ten days with Mother and ten days on his own choice. This proposal was apparently not acceptable to Father.
[ 11 ] Father alleges that further vacation in August, 2010, with the boys did not take place.
[ 12 ] Since August, 2010, Kaelan has not attended to reside with his Father on alternate weeks. Kaelan has stated that he does not wish to live with his Father and does not wish to live with his Father on an alternating week basis.
[ 13 ] Ryan continued to attend to live with his Father on a week about basis, notwithstanding Kaelan refused. Ryan stressed that he did not wish to continue week about residency with his Father. Ryan indicated that he wished to continue his relationship with his Father, just not the split residency.
[ 14 ] This matter came before me on November 24, 2011. Both Motions were adjourned at that time to March 26, 2012, to allow counseling, which had been initiated for Kaelan, to continue. During the period of the adjournment, it was ordered that Ryan shall be in the care of his Father, at minimum, alternate weekends from Friday after school to Monday mornings to be dropped off at school. In the alternate week, Ryan was to spend a mid-week overnight Monday after school to Tuesday morning such other times as agreed to by Ryan. Kaelan was to be in the care of his Father as arranged through the counseling sessions.
[ 15 ] Mr. Rolston has been appointed by the Office of the Children’s Lawyer to act on behalf of both Kaelan and Ryan. Mr. Rolston has received the assistance of a clinical agent with the Office of the Children’s Lawyer, Mr. Steven D ‘Souza. Mr. D’Souza has filed two affidavits in this matter sworn March 20, 2012, and November 18, 2011.
[ 16 ] A parenting/psychological assessment was completed by Susan Beckett, Ph.D; C.Psych. of Beckett Psychological Services dated February 11, 2005. This assessment pre-dates the final Order of Justice Byers. The final recommendations of Dr. Beckett were not followed in the final Order. Dr. Beckett, in the assessment at page 40, stated:
“The amount of stress, turbulence and conflict in this family situation is intense. Although the reality of this couple’s previous marriage is difficult to discern from the vantage point of their current high conflict position, there are few indications of extended periods of happiness, with the exception of a while after Kaelan was born. Much of the marriage seems to have been marked by co-existence rather than intimacy. Ms. Logan has acknowledged that her main focus was the children, while Mr. Fraser stated his perception was that he was “far down the list” of his wife’s priority.”
[ 17 ] Dr. Beckett further stated:
“The psychological function of parents, particularly their personality and emotional function, can be challenging to assess under extreme conditions, such as those in a high conflict separation. A degree of defensiveness, which is not atypical in custody and access assessments, made interpretation of the personality assessment measures difficult for both Ms. Logan and Mr. Fraser. Some aspects of their personality functioning are rather similar; for example, both partners have a tendency to be impulsive. These characteristics may be at the origin of the conflict in this couple.”
[ 18 ] Dr. Becket indicated that it was concerning to her the extent that Ms. Logan has exposed both Kaelan and Ryan to their Mother’s allegation that Father is abusive.
[ 19 ] The report is dated and, in my view, is of limited use in the present circumstance. It unfortunately does underline this case was at the time and, continues to be, a high conflict case. These two parents do not trust one another and their conflict has negatively impacted upon their children. Notwithstanding the conflict, it is evident there are many redeeming qualities in both parents. Both love their children and want what is best for them. Mother and Father clearly have different styles of parenting. Father has more structure, rules and discipline. This is not a criticism, rather a statement, particularly as perceived by the children. At the time of the assessment, both children indicated the preference to remain with their Mother. I now turn to the first motion.
Motion for Contempt:
[ 20 ] Mr. Fraser commenced a Motion for Contempt dated September 28, 2010, first returnable in Court on October 5, 2010, alleging Ms. Logan was in breach on the following grounds:
(1) Fail to comply, and continues to fail to comply with paragraph 2 of the Divorce Order of Honourable Mr. Justice Byers dated February 6, 2006, by refusing to allow Kaelan to reside with the applicant on an alternating weekly basis.
(2) Fail to comply, and continues to fail to comply with paragraph 3 of the Divorce Order of The Honourable Mr. Justice Byers, dated February 6, 2006, by refusing to allow Kaelan’s principal residence to be that of the applicant.
[ 21 ] In support of his Motion, Father states that he has exercised a week about shared parenting schedule since the separation, 2004. He states that the Respondent’s action in the summer of 2010 prevented Kaelan, Ryan and he from experiencing “quality family time together that I had planned with our boys over two separate summer vacations this summer. The first incident occurred at the commencement of our two-week ‘uninterrupted summer vacation’ which was to occur from July 11 to 25. It is my firm belief, based on the Respondent’s history and what was discussed at mediation with Donalda Simmons, that the respondent empowered Kaelan to choose not to go on vacation with me by telling him that he had the right to choose whether or not to go and advising Kaelan that he could stay with her while Ryan and I went on vacation. I believe this is what led to Kaelan’s suddenly refusing on the day of our scheduled departure to come over to my place, claiming that it was his right to decide where he wanted to live. As a result, our flight to Europe and planned vacation to see family and to tour Europe had to be cancelled.”
[ 22 ] Father states the second vacation to a friend’s cottage in August, 2010, had to be cancelled.
[ 23 ] At paragraph 13 of his Affidavit dated September 29, 2010, Mr. Fraser states, “It is my firm belief that the respondent is encouraging Kaelan to not spend time with me. Amongst my many reasons for believing this is the history of the respondent’s attempts to turn the children against me and discourage our relationship, and her effort to sabotage any mediation involving the children.” In support of this, Mr. Fraser relies upon the aforesaid assessment from Dr. Beckett, a letter from the mediator, Ms. Simmons and the failed mediation with Ms. Vicki Visca in early 2007, which was terminated by Mother.
[ 24 ] Mr. Fraser states that, as a result of Mother’s actions in 2010, he only had Kaelan for one night in August and two nights in September.
[ 25 ] At paragraph 9 of Tracy Logan’s Affidavit dated December 3, 2010, she states:
“Kaelan refused to go to Europe from the beginning. He even sent emails to his Dad to this effect that were not answered. I advised Kaelan to tell his Dad how he was feeling. Kaelan told me Dad ignores anything he says. The Applicant and I met with Kaelan before the trip but he continued to adamantly refuse to go. I kept re-iterating how important it was. Kaelan told his Dad to go ahead and to go with Ryan. During one conversation, the Applicant abruptly got up and left saying, ‘It’s too late to make our military flight now’. I did not know of this time constraint and understood that there were still many hours before the flight. In fact, Kaelan did return to his Father’s the night before, but ran away after a confrontation with the Applicant.”
[ 26 ] At paragraph 17 of the same Affidavit, Ms. Logan states:
“There is a long history of the Applicant accusing me of being uncooperative whenever I don’t do things 100% his way. I have done everything in my power to work with him in the interests of our children; however, the Applicant discounts any input I make and always thinks the worst of me. His continued controlling and abusive behavior is the reason for our inability to work together.”
[ 27 ] In support of his Motion for Contempt, Mr. Fraser filed a further Affidavit dated July 10, 2011. At paragraph 3, he states:
“On our weekly changeover, Ms. Logan continues to not pack Kaelan’s belongings, which of significance, includes his hockey bag. She then leaves the decision to Kaelan for access, but her actions have made it clearly evident to Kaelan that he is not going anywhere.”
[ 28 ] At paragraph 4 of the same Affidavit, he states:
“Kaelan made one attempt to remain with me even without his belongings. On the eve of our European vacation, Kaelan was delivered to me without any of his belongings and Kaelan chose to stay with me despite Ms. Logan’s efforts to coerce Kaelan to return with her to her home. Her efforts over the next several hours resulted in the catalyst to this whole situation occurring. While I slept, a pickup of Kaelan by Ms. Logan somewhere in between my house and Ms. Logan’s house was coordinated. Not once prior to, or during, this ordeal did Ms. Logan contact or communicate with me.”
[ 29 ] Father in support of his allegation of contempt states that the Respondent Mother has made no attempts to follow the access provisions of the Divorce Order as it relates to Kaelan. He argues that she has always opposed the residency of the children with Father, has consistently opposed week about residence and that she has subverted and hindered access between both boys, but, in particular, Kaelan, with their Father.
[ 30 ] Father argues that the Respondent Mother’s refusal to follow Court Orders and Agreements, specifically to undermine the Applicant’s access is the root cause of conflict. He states, “Once the element of access denial is removed then so too is any ‘conflict’.”
[ 31 ] At paragraph 28 of his Factum, Mr. Fraser states:
“The O.C.L., for the children’s emotional well-being, had an opportunity to support the end of the root and repetitive cause of ‘conflict’, but for some inexplicable, and unstated reason, has supported the Respondent’s on-going access denial and promotion of litigation to resolve this issue. Thus, the Respondent Mother will continue to violate Court Orders as long as the O.C.L. supports such and facilitates new terms that the Respondent may have a better chance of abiding by.”
[ 32 ] Father’s evidence of contempt is as follows:
(a) Mother never did attempt to follow the week about schedule with regard to Kaelan;
(b) the Applicant Father is forced to negotiate access with Kaelan;
(c) on weekends and holidays, the Applicant Father is forced to “negotiate” with Kaelan when, if and how, he might spend some time with him;
(d) the Respondent Mother refuses to parent, and refuses to offer strong incentives or impose consequences to obtain appropriate behavior from Kaelan and
(e) Kaelan’s rationalizations for why he does not stay with his Father are weak and unjustified.
[ 33 ] In his Affidavit dated November 18, 2011, Mr. D’Souza states at paragraph 10:
“Kaelan has consistently expressed a need to change the terms of access with his Father and, in fact, stopped attending access with his Father.”
[ 34 ] Mr. D’Souza stated that Ryan also wishes a change. At paragraph 11 he stated:
“Ryan has consistently expressed a need to change the terms of access. Unlike Kaelan, Ryan has not refused to attend access but has struggled to define the terms of access that he felt comfortable with. The general nature of his wishes around access was to continue to have access with Father but on a more flexible schedule.”
[ 35 ] Mr. D ‘Souza stated that both children have been exposed to conflict between their parents for a lengthy period of time, Ryan for the majority of his life. Both children are at ages where they are asserting their independence from their parents. He states that, in his view, Ryan is particularly emotionally affected by the conflict between his parents.
[ 36 ] In his Affidavit dated March 20, 2010, Mr. D ‘Souza stated that counseling had been taking place during the period of adjournment with Mr. Michael Manthorpe. Mr. Manthorpe advised Mr. Rolston that Father, Ryan and Kaelan had been attending for counseling. It was the opinion of Mr. Manthorpe that significant progress was being made in counseling. He stated:
“Further counseling of this type between Father, Kaelan and Ryan is not indicated at this time as, in the opinion of Michael Manthorpe, the necessary tools to continue the progress have been made available and it’s up to Father, Kaelan and Ryan to build on the tools that they had been given.”
[ 37 ] At paragraph 6, Mr. D ‘Souza states:
“Kaelan presently indicates that he feels more positive about the time he has with his Father. Kaelan is having more access with Father but continues to want to do this on a flexible schedule that he negotiates directly with his Father.”
[ 38 ] Kaelan indicated that he would not be in favour of an Order directing his access as he feels his relationship with his Father has progressed to the point where they can negotiate the time spent together.
[ 39 ] Mr. D ‘Souza indicated that Ryan has indicated he likes the present schedule of every other weekend and one day through the week with his Father. Mr. D ‘Souza said he discussed the possibility of changing access by expanding or changing the start and end days for access, but Ryan indicated that he did not wish to vary from the present schedule.
[ 40 ] Further, Mr. D ‘Souza stated that Ryan indicated he felt good about his relationship with his parents and, in particular, felt that he could talk to his Dad about problems as they arose.
The Law:
[ 41 ] It is clear from the case law that in relation to each of the alleged breaches, before a finding of contempt may be made, the Court must find the following:
(1) that the relevant Order was clear and unambiguous;
(2) the fact of the Order’s existence was within the knowledge of the Respondent (on the Motion) at the time of the alleged breach;
(3) that the Respondent intentionally did, or failed to do, anything that was in contravention of the Order, findings must be beyond a reasonable doubt;
(4) that the Respondent was given proper notice of the terms of the Order.
[ 42 ] There is no doubt that Justice Byers’ Order requiring the children to live one week with Mother and one week with Father was clear and unambiguous. It was also known to both Mother and Father and both had notice of the Order. The real issue is whether the Court is satisfied beyond a reasonable doubt that Mother “intentionally did, or failed to do, anything that was in contravention of the Order”.
[ 43 ] In Gerenia v Harb 2007 1893 (ON SC) , [2007] O.J. No. 305 (SCJ) , Quinn, J. discussed the issue about what steps a custodial parent should be expected to take to ensure the provisions of an access order take place:
“Undoubtedly, there are many tasks that a child, when asked may find unpleasant to perform, but ask we must and perform they must. A child who refused to go on a access visit should be treated by the custodial parent the same as a child who refused to go to school or otherwise misbehaves. The job of a parent is to parent.”
I agree with the general proposition that parent’s have an obligation to ensure that their children comply with Court Orders. I further take into consideration that there has been a long history between Mother and Father. Immediately after the separation, Mother expressed concerns regarding Father and, according to Dr. Beckett, shared those concerns with her children. However, before I can find Mother guilty of contempt, I must be satisfied on these facts in this set of circumstances that she willfully was in contempt and that it has proven beyond a reasonable doubt.
[ 44 ] Kaelan consistently indicated, starting with the Beckett assessment in 2005 that he wished to be with his Mother. Kaelan participated in week about residency with his Father until the summer of 2010. Kaelan expressed on a number of occasions prior to the summer vacation in July, 2010, that he did not wish to go. Kaelan went on a visit with his Father to Florida several months before. It is impossible for this Court to determine whether Kaelan’s long held views, in fact, are as a result of what Dr. Beckett suspected in 2005, namely, that Mother has subverted Kaelan’s relationship with his Father.
[ 45 ] I find as a fact that Kaelan in the summer of 2010 was adamant that he did not want to go on the vacation with his Father to Europe. He made his views clear to both his Mother and to his Father. Father argues that the fact that Mother brought Kaelan to Father’s house the night before the trip without his belongings is evidence that Mother was passively approving Kaelan’s opposition to going on the trip. I am not satisfied of this fact beyond a reasonable doubt. Father acknowledged on his cross-examination that Kaelan stated he did not wish to go. More generally, Kaelan has consistently stated that he is opposed to the week about access arrangements. He advised his counsel, Mr. Rolston, and the Social Worker, Mr. D’Souza of this fact. I find Kaelan has been consistent throughout the years in his view.
[ 46 ] I further accept Mother’s testimony in her cross-examination that she encouraged Kaelan to go on week about visits and to go on the European vacation. Mother did not physically force Kaelan to go either on the vacation or on week about access visits in the summer of 2010 and thereafter. However, under all of the circumstances, I am not satisfied that she has willfully breached the Order.
[ 47 ] This Court must take into account the reality of the situation “on the ground”. For whatever reason, Kaelan simply did not want to live with his Father in accordance with the existing Order. Given Kaelan’s age, and the period of time that he has consistently held this view, it would be unreasonable for this Court to expect the Respondent Mother to physically force Kaelan to have gone on the European trip or to participate in week about residency arrangements.
[ 48 ] In my view, Mother took the reasonable step of initiating a Motion to Change in advance of the Motion for Contempt. It was Mother’s position that circumstances had changed, largely based on the fact that Kaelan continued to consistently express opposition to the week about access arrangement.
[ 49 ] Access with Ryan continued on the week about basis even after week about access ceased with Kaelan. In my view, this is further evidence corroborating Mother’s position that she did all she could within her powers to encourage both children to exercise access in accordance with the Byer’s Divorce Order.
[ 50 ] In Mr. Fraser’s cross-examination of March 24, 2011, at page 33, line 17 he confirmed that Kaelan did not wish to go with him as follows:
Q: Has Kaelan indicated to you that but for his Mother – Mother’s refusing to allow him to go to your home, he would be there? Has he told you that?
A: We have not discussed that.
Q: Have you any reason, have you any reason to believe that Kaelan would be at your house on – on an alternate weekly basis now, but for what Tracy has done? Has she said she’s refusing to allow him to go?
A: No, he has not said that to me.
Q: In fact, he’s told you that he doesn’t want to go.
A: Yes, he said that.
[ 51 ] Kaelan ran away from his Father’s house late on the evening of July 11, into the morning of July 12, 2010. I accept Ms. Logan’s evidence that the boy was upset and emotional. I accept that Mother cooperated in efforts to attempt to convince Kaelan to stay with his Father. I accept this evidence, even in the light of Mother’s past view that week about access was not working and was not in the best interests of the children.
[ 52 ] For the foregoing reasons, I am left in a state of reasonable doubt and do not find that the Respondent Mother is in contempt of the Divorce Order of Justice Byers either on the grounds of refusing to allow Kaelan to reside with his Father on an alternating weekly basis or on the grounds that she has refused to allow Kaelan’s principal residence to be that of the Applicant. Accordingly, the Contempt Motion is dismissed.
Motion to Change:
[ 53 ] I now turn to deal with the Respondent Mother’s Motion to Change the Divorce Order of Justice Byers’ dated February 6, 2006. Mother seeks to change the joint custody of the children to joint custody with the children maintaining their primary residence with the Respondent Mother, subject to reasonable access to Mr. Gerald Fraser. In my view, there is significant overlap in the evidence between the Motion for Contempt and the Motion to Change. My findings as it relates to the Contempt Motion apply to the Motion to Change, to the extent that they are relevant.
The Law: The Motion to Vary:
[ 54 ] Before a Court makes a variation order in respect of a custody order, the Court shall satisfy itself that there has been change in the condition, means, needs or other circumstance of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, and in making the variation order, the Court shall take into consideration only the best interests of the child as determined by reference to that change.
[ 55 ] In deciding whether a custody and access order should be varied, the Court should first determine whether there has been a material change in circumstance affecting the child. If there has been such a material change in circumstance, what is the best interests of the child, taking into account all of the circumstances including the changed circumstance (Gordon v. Goertz 1996 191 (SCC) , [1996] 2 SCR 27 ).
[ 56 ] In Wood v. Wood [2005] O.J. No. 3691 (Ont. SCJ) , the expressed preferences of a child as to custody may amount to a material change in circumstance sufficient to vary a custody order. In Kaplanis v. Kaplanis 2005 1625 (ON CA) , [2005] O.J. No. 275 (O.C.A.) , a child’s best interests are not necessarily synonymous with the child’s wishes. However, the older the child, the more an order as to custody requires the cooperation of the child and consideration of the child’s wishes.
[ 57 ] Section 17(9) of the Divorce Act , provides that “in making a variation order varying a custody order, the Court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the Court shall take into consideration the willingness of that person to facilitate such contact.”
[ 58 ] Kaelan is now 16 years of age. Kaelan has the legal right to be in the care of both his Mother and Father. As stated in relation to the Contempt Motion, Kaelan has been consistent through the years with his wish to be in the care of his Mother. It is a positive sign that Kaelan has participated in counseling with Michael Manthorpe involving himself, his Father, and brother, Ryan. Mr. Manthorpe feels that progress has been made. Mr. Rolston, on behalf of Kaelan, indicates that Kaelan would not support a Court Order telling him what to do.
[ 59 ] Conflict has prevailed in this family during most of the period of separation. This conflict has negatively affected the children. Ryan, in particular, has suffered emotionally.
[ 60 ] Kaelan felt so strongly that he did not wish to abide by week about access; he unilaterally stopped attending his Father on an alternating weekly basis in August of 2010. Ryan continued to attend but was feeling stress and upset. It was for that reason and based on the representations made to me by Mr. Rolston at the initial hearing that the week about access with respect to both boys was changed as a condition of the adjournment.
[ 61 ] I find that the stated preference of both Kaelan and Ryan as consistently expressed to independent people, such as Dr. Beckett in 2005 and Mr. Rolston and D ‘Souza in 2011 and 2012, constitutes a material change in circumstance.
[ 62 ] In 2005, the boys were young and, while their wishes were a factor to be considered by the Court, they were not paramount, or even the most significant factor. However, at age 16, Kaelan’s wishes are extremely significant. Ryan is young and not legally entitled at this stage to make his own decisions. However, I accept representations made by Mr. Rolston that he is very mature for his age.
[ 63 ] Father forcefully argues that the children only want to live primarily with their Mother as a result of their Mother’s persistent denigration of Father over the years. Father argues that Mother has alienated the children from him. There is no expert report supporting this accusation.
[ 64 ] The Assessment of Dr. Beckett is dated 2005, over six years ago. I am not satisfied that the Beckett report supports the children’s current view is as a result of “parental alienation”. The position taken by the Office of the Children’s Lawyer is a practical one. Mr. Rolston states that, for whatever reason, the boys hold the view they do, they do not wish to continue exercising access with Father on a week about basis. Mr. Rolston initially stated that perhaps no further order is required, given Mother has stated the boys can go to their fathers’ whenever they want. Given the history of this file, it seems both parties need clear direction from the Court.
[ 65 ] To order the boys to continue to participate in week about access with their Father would be to invite continued violation and breach of the Order. Continued conflict involving the children is not in the children’s best interests. While I cannot find on the evidence there has been parental alienation, even if I was so satisfied; given the ages of the boys it does not change the result.
[ 66 ] In my view, the best way to avoid ongoing conflict is to respect the wishes of Kaelan and Ryan. That is not to say that the Father’s concerns regarding the Mother are without foundation. Mother needs to continue to start\continue to use all of her efforts to foster and encourage a relationship between Father and the boys. I find that it is in the best interests of both boys that they continue to have a meaningful relationship with their Father. Studies on the topic demonstrate that in the absence of a need to curtail contact, meaningful participation by both parents is in the long term best interests of children; not only now but as they move into adulthood. It is crucial in the boys best interests that Mother permit meaningful time with Father. On the other hand, Father must respect the views of his children as they grow into young adults.
[ 67 ] Accordingly, the Order of Justice Byers dated February 6, 2006, is amended to provided the following:
(1) the children shall continue in the joint custody of the Applicant and the Respondent, the children shall maintain primary residence with the Respondent Mother. The children shall, if they desire to do so, continue to reside one week with Mother and one week with Father; however, if they do not wish to do so, they are not required to do so and the police are not empowered to enforce this provision of the Order.
(2) Kaelan shall have access with the Applicant, Mr. Gerald Fraser, in accordance with his wishes.
(3) The child, Ryan Fraser, shall have access with the Applicant, Mr. Gerald Fraser, as set out in paragraph 1; however, if he chooses not to live with his Father on alternating weeks, access to Father shall be as follows:
(a) Alternate week-ends from Fridays after school (during the summer Fridays at 5 p.m.) to Monday morning, the child to be dropped off at school (during the summer Monday at 8 a.m. to be dropped off at Mother’s residence);
(b) one mid-week overnight visit alternating weeks Monday after school to Tuesday morning, the child to be dropped off at school (during the summer months Monday at 5 p.m. to Tuesday at 9 a.m., drop off at Mother’s residence);
(c) such other times as may be agreed upon by Ryan with his Father;
(d) the Applicant to have Christmas Eve each year, return to the Respondent’s residence by 11 p.m., the Respondent to have Christmas Day and the remainder of the school break to be divided equally between the Applicant and Respondent;
(e) the parties share Ryan’s birthdays;
(f) the parties will alternate March school breaks, in March, 2013, Ryan shall be in the care of his Father;
(g) the Applicant Father will have two uninterrupted weeks of vacation during the summer if he chooses, the Applicant will notify the Respondent on or before May 1 of his desired weeks. For the summer of 2012, he shall notify the Mother within ten days of release of the Judgment.
(4) Neither party shall speak negatively about the other parent in the presence of either child.
(5) Both the Applicant and the Respondent shall actively encourage both children to comply with this Order to the best of his or her ability.
[ 68 ] It is the clear intention of the above Order that both children will spend equal periods of time with their Father. While I have found a material change in circumstance, such that the existing Order can and should be varied, I have left open the possibility for either or both of the boys to continue to reside with Father on an alternating weekly basis, if they now or in the further choose to do so. However, I wish to make it clear that neither child shall be forced to participate in alternating weekly residence, if that is contrary to their wishes.
[ 69 ] In light of the current evidence that the children will not likely reside on an alternating weekly basis with the Father, it is appropriate to vary the existing child support to reflect the incomes of the parties and the Federal Child Support Guidelines. The Applicant Father shall pay to the Respondent ongoing child support for Kaelan and Ryan in the amount of $1,510.00 per month commencing January 1, 2012, payable on the first day of each month thereafter, based upon the Applicant’s annual income of $108,780.00. On consent, I make an Order that the Applicant shall pay to the Respondent on account of arrears of Section 7 extraordinary expenses from 2006 to 2011 in the amount of $726.00 payable within three months. The arrears of support that have accumulated in accordance with this Order retroactive to January 1, 2012, to and including June, 2012, shall be repayable within ninety days.
[ 70 ] The Applicant Father shall pay Ryan’s Section 7 extraordinary expenses and the Respondent Mother shall pay Kaelan’s Section 7 extraordinary expenses.
[ 71 ] If costs cannot be agreed upon, the parties shall exchange written submissions, no more than three pages double spaced, in addition to a Bill of Costs. Ms. Logan to serve and file within 3 weeks and Mr. Fraser within two weeks thereafter. Submissions to be filed at the Court in Belleville.
The Honourable Mr. Justice J.M. Johnston
Released: July 11, 2012
COURT FILE NO.: FS-04-1396-01
DATE: 2012/JULY/11
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: GERALD FRASER Applicant - and - TRACEY LOGAN Respondent RULING ON MOTION The Honourable Mr. Justice J. M. Johnston
Released: July 11 , 2012