COURT FILE AND PARTIES

COURT FILE NO.: FC-10-0653-00
DATE: 20120917

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

BRADLEY DALE OTTEWELL Applicant – and – CHRISTINE OTTEWELL Defendant

M.A. Cummings, for the Applicant
Self-Represented

HEARD: August 7, 8, 9, 10, 20, 21, 22, 23, 24, 27 and 28, 2012

McCARTHY J.:

[ 1 ] On August 28, I issued an endorsement incorporating a Schedule “A” which largely adopted the Proposed Parenting Plan put forward by the Applicant Father (AF). What follows are the reasons for my decision to award the rights and responsibilities of primary care of the children to the AF.

[ 2 ] The matter proceeded as the first part of a bifurcated trial in which custody and access were the sole issues before the court.

BACKGROUND

[ 3 ] The AF and the Respondent Mother (RM) were married on March 24, 2003. They separated approximately five years later on May 8, 2008.

[ 4 ] They have two children, Shelby Kaitlyn Ottewell (“Shelby”) born […], 2007 and Dalten James Ottewell (“Dalten”) born […], 2004.

[ 5 ] The children attended at Nottawa Public School in the 2011-2012 school year. Dalten is now set to begin Grade 3, while Shelby is about to commence Senior Kindergarten. The AF has operated Dale Ottewell Construction and Logging Ltd. since 1996. The RM has only recently (as of May 2012) obtained part-time employment as a server at Dorrington’s Pub in Nottawa. The AF presently resides in what was referred to as the “matrimonial home” near Feversham, Ontario. The RM resides in a home owned by her mother, Eleanor McKay, in Nottawa.

[ 6 ] There is presently no order for custody and access. The children have been primarily resident with the RM since she left the matrimonial home and moved to Nottawa approximately three years ago. She has maintained the children’s health and educational needs. With the passage of time, following the involvement of and the report generated by the Office of the Children’s Lawyer (OCL) in January 2011, and with the assistance of a parenting co-ordinator (PC), the parenting arrangement evolved into a tenuous status quo whereby the AF exercises some mid-week overnight access, together with weekend access two to three times per month. The access exchanges take place either at Nottawa Public School or the Nottawa General Store.

CUSTODY AND ACCESS – STATUTORY CONSIDERATIONS

[ 7 ] An application is now brought under s. 16 of the Divorce Act R.S.C., 1985, c.3 (2 nd Supp.) “DA”, for a determination of custody and access. By virtue of s. 16(6) the court is granted broad latitude to impose terms, conditions and restrictions in connection with such an order as it sees fit. Subsection 16 (8) mandates the court to consider the best interests of the children as determined by reference to the conditions, means, needs and other circumstances of a child. In making an order under s. 16 , the court is obliged, pursuant to subsection (9), “not to take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of the child ” (emphasis added). Finally, the maximum contact principle is set out at s. 16 (10). A court is directed to give effect to that principle by ensuring that a child should have as much contact with each parent as is consistent with the best interests of the child. For that purpose, the court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[ 8 ] Section 24 of the Children’s Law Reform Act R.S.O 1990, c. 12 (the “CLRA”) directs that the merits of an application in respect of custody and access shall be determined on the basis of the best interests of the child (“BIC”). The court is then mandated to consider all the child’s needs and interests, including the factors set out in subsections (2), (3) and (4).

[ 9 ] It has often been noted in jurisprudence that, there being no definition of BIC in the DA , courts in Ontario should adopt the approach and considerations enumerated in the CLRA. As stated by M.T. Linhares de Sousa J. in Sterling v Sterling (2005), 2005 16590 (ON SC) , 17 R.F.L. (6 th ) 377 at para. 79 :

.....there is no question that all the factors listed in section 24(2) of the Children’s Law Reform Act have been recognized as relevant considerations in the jurisprudence found under the Divorce Act dealing with custody and access of children. It is a good guide to use by any court that is deciding questions of this kind and I rely upon it in coming to my conclusions in this case.

[ 10 ] In accordance with that approach, both sets of factors set out in the DA and the CLRA respectively, will be considered in this case.

DALE OTTEWELL

[ 11 ] The AF gave his evidence in a straight forward and forthright manner. He impressed me as a rational individual, a hard worker, and a dedicated parent. There was nothing in his presentation, demeanour, or attitude that left the court with the slightest doubt that he was not honest and trustworthy. His evidence in court was entirely consistent with that found in the documents filed as exhibits.

[ 12 ] Neither Paula Carter, the Clinical Investigator from the OCL, nor Susan Cook, the parenting co-ordinator (PC), expressed any concern with his parenting abilities.

[ 13 ] In the OCL report dated January 18, 2011 addressed to this court and detailing findings made during her investigation, Ms Carter concluded that the AF was a caring and concerned father who was appreciative of the fact that it would be in the children’s best interest to be involved in certain kinds of extra-curricular activities. Ms. Carter had no doubt that the AF would make himself available to the children and support their involvement. Ms. Carter repeated her opinion in open court that the AF had impressed her as a capable and responsible parent.

[ 14 ] Ms. Cook began working with the parties as a parenting co-ordinator in June of 2011. While the bulk of her evidence centred on the problems that she encountered in dealing with the RM, (to be dealt with below), she offered the court what I found to be a reliable, credible, and impartial opinion that the AF was anxious to resolve conflict rather than escalate it, that he was very good at seeking her advice on issues, and that he had consistently sought to work in the interests of the children. Ms. Cook found the AF to be reliable and prepared to commit to a plan of action once implemented. She had absolutely no concerns about his ability to properly parent.

[ 15 ] My own initial impression of the AF was buttressed not only by the witnesses called or filing affidavits on his behalf (Mandy McIntyre, Jacqueline King and Carol Ottewell), all of whom I found to be reliable and credible witnesses, but also by witnesses called by the RM. Loreen “Reenie” Smith, the RM’s neighbour and part time caregiver to the children, conceded without hesitation that the AF had always been courteous and civil with her. Jeffrey Gage, the RM’s current partner, offered that he had no issues with either the AF or his current partner, Mandy McIntyre. He even described the AF as “always polite.”

[ 16 ] In addition, the AF’s messages and notes, as found in the multiple entries he made in the Communication Book, together with the slew of electronically sent messages and texts (“emails”) found in Exhibit “3”, served as further proof of his rational and thoughtful approach, his respect for the RM’s concerns (albeit tinged with some frustration), and his overriding concern for his children’s best interests.

[ 17 ] The sole factor which might weigh negatively on this court’s view of the AF as an individual or as a parent is his past conduct of abuse and violence. Pursuant to section 24(4) of the CLRA, this court is obligated to “consider” whether the AF has at any time committed violence or abuse against the persons listed therein. While the DA does not mandate a consideration of this specific factor, it would be illogical and unrealistic to ignore it in any consideration of past conduct.

[ 18 ] The AF pleaded guilty to a charge of domestic assault arising from the encounter with the RM of May 8, 2008. He admitted to a prior charge of assault involving a woman in British Columbia in 1993. There was no conviction in the case of the latter. There was some suggestion by the RM that, as a result of “booting his son Logan in the ass” back in 2004, that his access to Logan was curtailed by a court order. However, I heard no evidence in support of the latter incident and am therefore not prepared to afford it any weight.

[ 19 ] In respect of the 2008 incident, it is clear to me that the assault in question arose during an altercation with the RM in the matrimonial home over issues of her drunkenness, her plans to leave the matrimonial home, and her removal of significant funds from a safety deposit box. I accept that the AF had grounds upon which he could have asked that charges be laid against the RM for assault arising out of the same altercation. I accept his evidence that he chose not to do so after receiving information from the police that such charges could lead to his children being removed from the home by Children’s Aid Society (CAS). The AF registered in the PARS program, pleaded guilty, and received a discharge. Indeed, the RM wrote two letters to the authorities asking them to drop the charges, citing a stressful domestic situation arising out of Shelby’s illness, and commending the AF for his participation in the PARS program and his improvement as a father and husband.

[ 20 ] In respect of the incident in British Columbia, I heard insufficient details to attach any weight to it. While any assault is serious, 1993 is nearly twenty years ago. There was no conviction. It appears to be an isolated incident that did not involve children.

[ 21 ] While violence and abuse can never be condoned, I am not prepared to find that either the incident of 2008 or the incident of 1993 should impact on any findings of the AF’s ability to properly parent. To the extent I need to accept either version of the incident of May 8, 2008, I accept the version of the AF. The incident was isolated. There was no pattern of behaviour here. The OCL investigator, armed with similar knowledge of these incidents, did not give it much consideration in arriving at her conclusions.

[ 22 ] The RM failed to adduce, or direct the court to, any evidence that would suggest that the AF is not a good parent or is not a good candidate for the role of parent with primary care and control.

[ 23 ] In conclusion, I found the AF to be a reliable and credible witness. I am satisfied that he is a stable individual. He has resided in the matrimonial home, with some initial interruption following the initial period of separation, for both children’s entire lives. He enjoys a close, proximate relationship with his own parents. Together, they have formed part of their local community for many years. He has operated his business since 1996 with apparent success. His relationship with Mandy McIntyre appears to be stable. He has consistently demonstrated both the intention and the commitment to act in the best interests of the children, to minimize conflict, and to promote cooperation with the RM. I have no doubt that he will continue to promote her as an important part of his children’s lives and to ensure maximum contact between she and the children.

CHRISTINE OTTEWELL

[ 24 ] In contrast to the AF, I found the RM to be consistently evasive, woefully inconsistent and wholly unreliable as a witness. Her credibility was undermined, not just by her own confusing, contradictory and unsupported direct testimony, but also by her pattern of evasiveness in answering direct questions put to her in cross-examination by counsel for the AF and questions put to her by the court in an attempt to clarify her evidence.

[ 25 ] It is apparent that the court simply inherited the frustration experienced by, not only the AF and his counsel, but also the PC and the RM’s own previous counsel Deborah Lyons-Batstone (“DLB”). Time and time again during the trial, both as a witness providing direct evidence to the court or under cross-examination, the RM proved unable or unwilling to answer direct questions or she gave answers that were entirely unresponsive or evasive.

[ 26 ] Some striking examples are as follows:

(a) During an exchange with the court about the AF’s consumption of alcohol, she seemed unable or unwilling to commit to whether AF had a drinking problem or a pattern of drinking that should impact on the court’s determination of his ability to parent;

(b) During cross-examination, she characterized the protocol reached with the parenting coordinator regarding respecting the AF’s access days as a “mutual understanding”, refusing to concede that it could be termed an “agreement”;

(c) When faced with the plain and uncontroverted evidence that she had failed to pay the ongoing fees of the PC, causing Ms. Cook to temporarily withdraw from the case, the RM agreed, but stated that she never received an invoice. When faced with the PC’s letters and emails requesting payment, she could not recall receiving the exchanges. Later on, she offered an alternative pair of excuses, namely that she was unable to afford to pay for her share of the services (“I had no money”) and secondly, that she had begun to lose confidence in the PC;

(d) When asked whether she had paid the account of her former lawyer, DLB, she first denied that it remained unpaid. She then admitted that it was unpaid but tried to offer an excuse;

(e) When asked about her failure to make disclosure by June 27, 2011, pursuant to an earlier agreement to do so of September 16, 2010, she answered that she did not know how much disclosure was made. When asked about whether any disclosure was made by the drop dead date of August 15, 2011, set out in the order of Eberhard J. of June 27, she answered that she believed that there was some but she was not “100% sure”;

(f) When confronted with a list of documents requested for disclosure with corresponding notations suggesting that these documents remained outstanding, she could not recall “off the top of my head”, whether particular disclosure had been made;

(g) In explaining why she failed to provide an authorization permitting the AF’s counsel from obtaining her “Facebook” page, she replied, firstly, that she thought that she had to provide the “Facebook” page rather than an authorization. Then, rather meekly, she replied that she thought that she had provided the authorization through her counsel DLB because she recalled signing something;

(h) When asked about the court order for the transfer of the mini-excavator, she recalled the order but denied ever being presented with a bill of sale for execution. She then admitted that she was in possession of documentation for the mini-excavator but did not execute the same;

(i) When confronted in cross-examination about attending in the hockey dressing room during the AF’s parenting time, she at first denied having done this altogether. When pressed, she changed her evidence and admitted to having encroached on the AF’s parenting time.

[ 27 ] When she found herself in difficulty on other occasions or confronted with suggestions that she did not meet deadlines, comply with court orders, provide responses to the PC or AF regarding access and children’s issues, or provide instructions to her solicitor, she continued to fall back on responses like, “I cannot recall”, or “I can’t say 100% that I did or that I didn’t”. Similarly, when faced with letters and emails addressed to her or copied to her, she offered flimsy and meaningless responses like, “there was a flurry of emails”, or “there were a couple of emails” that she did not respond to.

[ 28 ] Moreover, there were times when the RM’s evidence was so blatantly fabricated or so patently lacking in common sense or consistency that the court was left to question whether the oath she swore in advance of her testimony held any meaning for her. When asked about the incident of May 4, 2008, it was put to her that the AF had raised the issue of her removing large sums of money from the safety deposit box. At first, she contended that the fact that she had been seen to be circling advertisements for apartments for rent in the newspaper was the contentious issue that day. She denied that there were discussions about the safety deposit box. Within a matter of seconds, she had changed her story, agreeing that the money from the safety deposit box became a topic only after the conflict began to escalate.

[ 29 ] Ultimately, I find that her evidence was so rife with inconsistencies and inanities that virtually no weight can be attached to it.

[ 30 ] To her credit, the RM was unfailingly polite to the court. She attempted, as best she could, to follow my instructions as they pertained to procedure and rules of evidence. She appeared crestfallen upon hearing some of the rulings of the court but remained focused on telling her side of things and managed to marshal her witnesses effectively. At times, she appeared genuinely overwhelmed with the court process. She was even contrite at times. During cross-examination she conceded that, in hindsight, a lot of problems could have been avoided if she had complied with those things (i.e. the orders and requests for disclosure).

[ 31 ] However, none of this could, or should, repair the damage to her credibility brought on by her own evasiveness and inconsistent testimony.

THE PARENTING PLANS

(i) The Applicant Father

[ 32 ] It was the position of the AF that the RM had proven herself to be unaccountable, ungovernable, and untrustworthy. Moreover, the RM had demonstrated a conscious and deliberate pattern of attempting to alienate and disenfranchise the AF from his children. This parental alienation has taken many forms including the following:

(a) refusing to speak directly with the AF and refusing to come in close proximity to him;

(b) showing no concern for lost the AF’s lost access time;

(c) making derogatory statements about the AF to the children;

(d) tacitly approving the children’s negative behaviour or comments towards the AF or the people in his family;

(e) conducting inquisitions of the children after access visits with the AF;

(f) portraying the AF as dangerous;

(g) exaggerating the negative attributes of the AF while omitting anything positive;

(h) repeating false statements to the children, distorting history and the AF’s participation in the child’s life;

(i) harbouring an unjustified fear of harm;

(j) requiring the children to keep secrets or spy, and report back on the AF; and,

(k) engaging children in activities that have had the effect of impeding or competing with access visits.

[ 33 ] The ongoing conflict engendered by the mother and her unwillingness to claim responsibility for a share of it, taken together with her pattern of alienating and disenfranchising the AF, should be viewed as grave by this court. An order granting primary care to the father, in the context of a defined parenting plan, would be in the BIC and would be the most favourable setting in which the maximum contact principle in the DA would be respected and promoted.

[ 34 ] The proposed parenting plan of the AF was committed to writing and was made an Exhibit 29 to this proceeding.

(ii) The Respondent Mother

[ 35 ] The RM, too, filed a proposed parenting plan. It was made Exhibit 31 to this proceeding. She proposed that the RM be granted sole custody with a firm access schedule around a five week cycle. She set out, in great detail, her proposal for methods of information exchange and communication, an allergy protocol for Shelby, healthcare providers, and extra-curricular activities for the children. She proposed that the RM retain final decision-making authority in respect of any significant decisions involving the children.

[ 36 ] The RM, responding to questions from the bench and in making her submissions, emphasized that the BIC would be best served by a schedule incorporating certainty and routine in order to maximize the stability in their lives. She believes that her proposed plan would minimize contact between the parties and would reduce the attenuate conflict that comes with it.

[ 37 ] In commenting on the RM’s proposed plan, the AF took umbrage with the fact that it was essentially an entrenchment of the status quo that was being sought. The AF cautioned the court not to regard the status quo as having created a measure of stability since that very status quo has been the stage of lamentable conflict, uncertainty, and grief. Moreover, the plan, because of its rigidity, would actually serve to reduce the access currently being enjoyed by the father.

PARENTAL ALIENATION – THE EVIDENCE

[ 38 ] A great deal of evidence adduced by the AF focused on the RM’s objectionable conduct during the period of the status quo. The AF strongly asserted that this was consciously designed and undertaken in order to disenfranchise the AF from the children. The AF identified seven incidents or events which he argued clearly establish a pattern of parental alienation on the part of the RM. Having heard detailed evidence about these events, I am satisfied that they unfolded exactly as recounted by the AF and the other witnesses called to testify on his behalf.

[ 39 ] Without diminishing the seriousness of the incidents cited, it is useful here to label them simply by reference to how they were identified by the players and witnesses involved:

(a) The “dump truck” incident. The RM, without prior warning, cited a safety concern as the reason for denying access to the AF on May 11, 2011. The resultant dispute that arose, as chronicled in the exchange of correspondence between the respective lawyers, resulted in the AF being unable to see his children for over a month. As a result, Dalten missed his Beaver barbeque and presentation with his father. The RM never did provide satisfactory proof that her safety concerns were legitimate. She did not even raise the concerns or seek to address them when the matter returned to court in mid-June 2011. Instead, she attempted to impose certain conditions on the AF (one of which involved a three way meeting between her boyfriend Jeff Gage, Dalten, and the AF to address an issue about Mandy McIntyre). In short, she withheld the children from their father intentionally, arbitrarily, and without justification and then used the situation as an opportunity to extract certain conditions out of the AF. The AF’s frustration with the position he found himself in can only be imagined. His counsel’s letter to opposing counsel of May 18, 2011 described the situation accurately: “ your client has mine over a barrel .” At no time during the suspension of access or following the resumption of access did the RM show the slightest concern for compensating the AF for the lost access time.

(b) The “gum ball” incident. The RM’s behaviour regarding the child’s request for a gumball at the arena demonstrated deliberate undermining of the father’s role.

(c) The “McHappy Day” incident.

(d) The “baseball” incident.

(e) The “skating” incident.

(f) The “swimming” incident.

(g) The “reading books” incident.

[ 40 ] I touched briefly on the evidence of the PC under the section dealing with Dale Ottewell. I found her evidence as it pertained to Christine Ottewell equally reliable, consistent, and impartial. In my view, it deserves a great deal of weight.

[ 41 ] Ms. Cook testified regarding her attempts to coordinate parenting arrangements and the RM’s lack of cooperation.

[ 42 ] The PC voiced concerns that allegations of fear were being used as a tool to frustrate arrangements.

[ 43 ] She warned that an atmosphere of fear without cause could harm the children’s development and relationship with their father.

[ 44 ] She noted that no police, court, or OCL material supported the RM’s claims.

[ 45 ] The PC documented repeated non‑payment of fees and obstruction of negotiations.

[ 46 ] She also described the father’s attempts to arrange parenting time and the mother’s vague or non‑responsive replies.

[ 47 ] Ms. Cook concluded that the RM had a pattern of frustrating attempts to resolve issues.

[ 48 ] She also described the RM as evasive and uncooperative in practical arrangements.

[ 49 ] Interviews with the children revealed statements attributed to the mother portraying the father negatively.

[ 50 ] Agreements reached in meetings were later abandoned by the RM.

[ 51 ] The pattern continued during attempts to arrange summer parenting schedules.

[ 52 ] Ms. Cook testified that meaningful parenting requires involvement in daily routines and that equal parenting time can help children adapt to living with two families.

[ 53 ] The AF also relied on the findings of the OCL report.

[ 54 ] Although the OCL recommended sole custody to the mother, it strongly cautioned that she must stop excluding the father and must support his relationship with the children.

[ 55 ] Counsel for the AF argued that the RM had failed to follow these recommendations.

[ 56 ] The AF provided documentary evidence summarizing communications between the parties.

[ 57 ] Overall, the evidence establishes a pattern of denied access, uncooperative behaviour, parental alienation, and disenfranchisement by the RM.

PARENTAL ALIENATION – THE LAW

[ 58 ] In Reeves v. Reeves, (2001) 102 A.C.W.S. (3d) 1116 (SC), the court emphasized that encouraging children not to have a relationship with the other parent demonstrates an inability to act in the children’s best interests.

[ 59 ] In Nixon v. Hunter, (2009) 2009 38785 (ON SC), D.G. Price J. stated that patterns of alienating conduct must be taken seriously and discouraged by the court.

[ 60 ] In Tremblay v. Tremblay (1987), 1987 147 (AB KB), the court observed that depriving a child of a relationship with a parent without justification can itself constitute a form of child abuse.

[ 61 ] Courts must also apply the maximum contact principle under the Divorce Act.

[ 62 ] I find that the RM has chosen a course of conduct injurious to the children’s relationship with their father and has shown no insight into the harm caused.

[ 63 ] The mother’s past conduct, which continues to the present, is relevant to her ability to parent and must be taken into account.

OTHER CONSIDERATIONS: s. 24 (2) of the CLRA and s.16 of the DA

[ 64 ] Both parents love the children and are capable of providing for their needs.

[ 65 ] However, the RM’s efforts to undermine the father’s relationship with the children create instability.

[ 66 ] Entrenching the present status quo would reward the RM for creating a situation characterized by parental alienation.

JOINT CUSTODY/PARALLEL PARENTING

[ 67 ] The evidence does not support joint custody or parallel parenting.

[ 68 ] As stated in Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), courts should not order joint custody where there is no evidence the parties can communicate effectively.

DISPOSITION

[ 69 ] I am satisfied that it would be in the best interests of the children for the father to have the rights and responsibilities of primary care of the children. He has demonstrated willingness to cooperate and to promote the children’s relationship with their mother. His parenting plan provides stability and maximizes contact with both parents.

[ 70 ] If the parties are unable to agree on the issue of costs, either party may contact the trial coordinator at Barrie to schedule an appearance before me to address that issue in open court.

McCARTHY J.

Released: September 17, 2012