SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-11-368607
DATE: 20130614

RE: C.C.R., Plaintiff

AND:

D.F.R., Respondent

BEFORE: Czutrin J.

COUNSEL: Mark Trenholme, for the Applicant

Respondent, In Person

Alawi Mohideen, Ontario Children’s Lawyer

HEARD: June 4, 2013

ENDORSEMENT

[1] On June 4, 2013, I heard the Applicant mother’s motion, supported by the Office of the Children’s Lawyer (“OCL”), seeking an order for custody of J, born[…], 2001, with supervised access to the Respondent father once per week at Access to Parents and Children, and for access to mother at her home of R-M, born, […], 1998, for a minimum of four hours each weekend so that R-M, and her brother J can see each other. While the mother originally also sought custody of R-M, given her age and the position of the OCL, she accepts on a temporary basis R-M being in the custody of the father.

[2] The OCL also seeks an order that the mother and R-M attend for an assessment with a therapist specializing in children resisting post separation contact and that there be follow through of the recommendations of the therapist.

[3] The unfortunate delay in this case has worked against these children’s best interests, and based on the material I have reviewed, allowed the father to interfere with the mother’s relationship with the children and not support the mother’s time with them.

[4] After an 11-year marriage the parents first separated in 2003 and reconciled and then last separated in August 2008.

[5] The children were then 7 and 10.

[6] The mother moved away from the matrimonial home where the father has remained for over four years now.

[7] It was not until May 2011 that the mother commenced her Application for Divorce, “joint custody” of the children, child support, sale of the matrimonial home, and an equalization determination.

[8] The mother sought an equal time share of the children.

[9] In her Application the mother’s alleged facts included that while the parents had an alternate week arrangement but because of “J’s ... educational concerns and upon the recommendations of a psychiatrist from the George Hull Centre has proposed a plan that would have the children rotate between the parents on a shorter time frame.”

[10] She referred to the school’s concerns about J and his special needs.

[11] As of November 2011, the equal time sharing of the children broke down. This breakdown resulted in R-M living with the father full time and as of February 2012 J also lived with the father. The mother’s time with R-M ended in November 2011 and with J as of January 29, 2013.

[12] The breakdown of the time sharing followed mother’s refusal to accept father’s request that they reconcile.

[13] I do not know why the mother delayed seeking a case conference date or why she did not proceed on an uncontested basis as the father failed to file his Answer until April 2012 although he was served with the Application on May 2, 2011.

[14] Even though the father failed to file an Answer the mother attended at a case conference on January 4, 2012 and sought various orders including a referral to the OCL, the sale of the matrimonial home, and that the children attend the Families in Transition.

[15] The mother chose to bring a motion rather than proceed on an uncontested basis and the father attended on the motion brought by the mother on March 22, 2012, but sought and was granted an adjournment to April 17, 2012.

[16] The April 17, 2012 motion was further adjourned to May 8, 2012.

[17] On May 8, 2012, Mesbur J. endorsed:

The OCL has apparently declined to assist this family. In my view it is imperative the children’s views and preferences be put before the court. The situation is very troubling with both children declining to see their mother. I urge the OCL to reconsider its position.

[18] Mesbur J. also ordered the father to serve and file his financial statement and three years of tax returns and set a case conference for June 25, 2012: “It is hoped the OCL will have taken on the case and can provide some assistance to the court.” She required the OCL to be served.

[19] Fortunately the OCL assigned counsel with a clinical assistant and on November 16, 2012 the parties agreed to a consent order providing access to the mother of R-M each Sunday for four hours after the child and mother have at least one session of counseling to start November 26, 2012. The consent order also provided J to live with his mother every Monday and Tuesday and alternate weekends. The mother and R-M were to attend family therapy and the father was apparently attending individual parenting counseling re: parenting adolescents.

[20] I am satisfied that the father has not complied with the order and claims that the mother does not pick up J and that they are not wishing to go. I am satisfied that he is not encouraging them to do so and takes no responsibility for having them go.

[21] The OCL provided evidence of the children’s stated views and preferences. R-M, while stating that she did not wish to spend time with her mother, also said that if ordered by the court she would do so for a few hours.

[22] J, while expressing views against seeing his mother, could not say why.

[23] The OCL submitted that J has been assessed as having possible ADHD as well as weaker memory, processing speed, and weaker fine and visual motor skills. He attends the Home School Programme for support in language and mathematics.

[24] The OCL concluded that J is influenced by his sister’s views about not spending time with his mother.

[25] The OCL clinical investigator has observed a close loving relationship between mother and J and that the mother is more responsive to the professionals and schools concerns for J while father has been more difficult and dismissive.

[26] Rarely have I seen the OCL take a more proactive and strong position on a motion such as this. It is unfortunate that so much time has passed that has contributed to the children not seeing their mother after having a near equal time share.

[27] Father claims that the OCL is biased and that he is not responsible for the children not seeing their mother.

[28] The evidence is consistent with a father who has not supported the mother’s relationship with the children and after nearly three years of equal time share after the mother’s rejection of the father’s overtures at reconciliation the mother’s time with the children began to change to the point where the children have not spent time with her.

[29] In the circumstances, any further delay would continue to undermine the children’s relationship with their mother and would be contrary to the children’s best interests.

[30] Therefore, order to go as requested by the OCL. If the order is prepared I will sign and also provide for police enforcement if necessary.

[31] The parties are to make the necessary arrangements for the supervised access by the father to J and OCL to provide details of the access centre and what each party is required to do.

[32] I will provide a further order once the parties do what the supervised access centre requires and the times they agree on and where, and if there is no agreement, I will entertain proposals with details as to place and times.

[33] The first Sunday following J commencing to live with his mother, the father shall be required to drive R-M to her mother’s home by 10:00 AM each Sunday and pick her up at 2:00 PM.

[34] The OCL to advise the children of my order and my requiring the parents and children to abide by the order.

[35] The father is not to go into mother’s apartment building but is to call mother when he arrives and she is to meet the child in the lobby to meet the child and at the end of the visit the father will confirm that he has arrived and the mother to escort the child to the lobby and watch as the child goes to the father.

[36] I will consider the requested assessment and therapy once there is a proposal and consent from a therapist and how the therapy would be funded.

Czutrin J.

Released: June 14, 2013