ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 72/08
DATE: 2014/06/11
BETWEEN:
TERESA SUPPLE (CASHMAN)
Applicant
– and –
BRAD CASHMAN
Respondent
Catherine D. Purvis, for the Applicant
Brian Ludmer and Stephen Eaton, for the Respondent
HEARD: May 26-30, and June 2-6, 2014 (at Kingston)
REASONS FOR JUDGMENT
SHEFFIELD J.
[1] Fourteen-year-old Nathan Cashman and his twelve-year-old brother Trevor have been riding an emotional roller coaster ever since their parents separated in August 2007. For several years now, their parents have been embroiled in a bitter dispute, and there is little hope that the mistrust and allegations of lies that have become part of their usual routine will abate. Neither parent recognizes the devastating impact that their warring and refusal to cooperate has had on their sons’ mental, emotional, and social wellbeing.
[2] Consequently, these two teenaged boys have been forced to bear a burden that ought never to have been placed upon them. Each day, they are caught between the desire to love both parents, and the fear that showing this love will offend the other parent. The stress that this balancing act has caused is readily evident and has even led to the eldest boy, Nathan, expressing both homicidal and suicidal ideations. It is not difficult to see that the current situation of conflict is not in the children’s best interests.
[3] I find the children are old enough at this time to have their own voices, which they seek to have heard. They have opted to no longer see their father. It is their way of pulling back from the fire, of reducing the stress and of ending the conflict between their parents. They have voiced their opinion to anyone who will listen, including their parents, their teachers, Children’s Aid Society (CAS) workers, and even Dr. Abe Worenklein, a child psychologist who prepared and filed a s. 30 assessment and report. The children are, in their own way, begging for the conflict to stop. The question before this Court is how to resolve the issues in a manner that ensures the best interests of the children.
History
[4] The parties to this process, Brad Cashman (the father) and Teresa Supple (the mother), have been before the court on a number of occasions, leading to a Final Order dated September 7, 2011. They have also appeared on temporary motions on August 9 and 30, 2013. Each successive temporary order increased the father’s time with the children. The current interim order stipulates that, for each scheduled visit with the father that is unattended by the children, the mother is to make a $500 contribution to the children’s RESP. Due to a number of missed visits, the outstanding amount owed by Ms. Supple was estimated to be $50,000 at the time of trial.
Present Motion
[5] The present motion was brought by Ms. Supple to vary custody and grant her sole custody of the children with specified access to the father on alternate weekends and one half of holidays. She also requests incidental reliefs to which I will refer later. In order to succeed on her motion, the mother must show that the current custody arrangement, as granted in the 2011 Final Order, is contrary to the best interests of the children, and that her request for sole custody and the specified access regime is in their best interests.
[6] Mr. Cashman has submitted a motion seeking a declaration that Ms. Supple has been and continues to be in contempt of the orders of September 2011 and August 2013, as discussed above. In order for him to succeed, he must demonstrate that Ms. Supple has failed to honour the tenor and spirit of the various court orders in that she did not do all she could or should have done to ensure that the children attend access visits with their father.
Evidence and Positions of the Parties
[7] The documentary evidence in this case has been voluminous. There are several hundreds of pages of e-mail and other correspondence exchanged between the parties. There have been allegations of abuse and of poor parenting by both parents, which have led to involvement by the CAS, the police, and school officials. At present, the CAS have a watching brief on this file given the risk of emotional damage to the two boys caused by their parents’ ongoing conflict. It is the responsibility of this Court to extend its best efforts to sift through the evidence and arrive at a decision which will give paramount consideration to the children’s best interests.
[8] I have read the report of Dr. Worenklein, which is filed as part of the trial record, and have heard his oral testimony. Dr. Worenklein was qualified as an expert in child psychology with particular expertise in the area of “parental alienation”. It was made clear to the court, at the outset of Dr. Worenklein’s testimony, that both he and the father’s legal counsel, Mr. Brian Ludmer, had served together on a committee which had, as its principle purpose, a declaration that the issue of parental alienation be recognized as a medical diagnosis under the DSM-V. This request was unsuccessful.
[9] I found Dr. Worenklein to be a helpful witness. He expressed the opinion that Ms. Supple was alienating her children from their father. He based this opinion on his observations of the boys, of their expressed wishes, and of their interactions with either parent. Dr. Worenklein noted that, although the boys expressed in very clear terms that they did not wish to see their father, they were warm and loving with their father while participating in a one and a half hour interview and observation session with Mr. Cashman. He saw no evidence in the children’s interactions with their father that suggested that they either feared him or wanted to end their contact with him. Following this session, Dr. Worenklein saw no indication that Nathan was either homicidal or suicidal. According to Dr. Worenklein, “actions speak louder than words”. The expert opined that it is a sign of parental alienation where children express a desire to end all contact with one parent, but show clear affection towards that parent when alone with him or her. Dr. Worenklein concluded that the best course of action for the children would be to place them in the sole custody of their father while their mother attends specialized therapy to end her alienating behaviours. Only once Ms. Supple had demonstrated that she would not engage in alienating behaviours would contact between her and her boys resume.
[10] Not surprisingly, Ms. Supple took strong exception to these recommendations. She suggested that Dr. Worenklein was biased. She argued that she had done all that she could to foster the boys’ relationship with their father and that she has not engaged in alienating behaviour. In her view, the boys’ relationship with their father has deteriorated because of the father’s own actions and because of his rigid, controlling nature. For instance, the Court heard ample evidence that the children’s father and paternal grandfather take issue with the children’s decisions regarding such things as hairstyles and shoe sizes. While the father and paternal grandfather deny that they have made disparaging remarks with respect to Trevor’s long hair and possible sexual orientation, I do not accept their evidence on this point. Additionally, the father has repeatedly failed to return the children to their mother’s home in a timely fashion, which further exacerbates the children’s stress when they are with him.
[11] According to the mother, while the children love their father and while it is in their best interests to maintain contact and a relationship with their father, they do not know how to cope with their father’s demanding nature. Furthermore, the children have shown improvements since they have limited their contact with their father. For instance, the eldest boy, Nathan, is earning A’s and B’s at school and is becoming better socially adjusted. Trevor feels better when he is able to express his individualism by letting his hair grow long.
Analysis
Custody and Access
[12] While I respect Dr. Worenklein’s expertise and find that he was a highly intelligent and able witness, I remind myself that I must not usurp my decision-making role by deferring blindly to the recommendations of an expert witness: Johnson v. Cleroux (2002), 2002 37304 (ON CA), 23 R.F.L. (5th) 176 (Ont. C.A.), at para. 11, and Baillie v. Middleton, 2012 ONSC 3728, 26 R.F.L. (7th) 130, at para. 37. It is for the Court, and the Court alone, to weigh all of the evidence and to arrive at a conclusion which is in the children’s best interests. In so doing, I keep in mind the following principles with respect to custody and access.
[13] First, I keep in mind the principle that the Court should order the maximum amount of contact between the children and both parents as is in the children’s best interest: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27. However, at para. 24, McLachlin J. (as she was then), warned:
The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact…
[14] Second, while parental alienation was a central issue in this case, it is not the only factor which the Court must consider in arriving at its decision: see, for example, Hart v. Hart, [1996] B.C.W.L.D. 2425 (S.C.) and D. (I.) v. D. (P.R.A.), 2012 SKQB 281, 401 Sask. R. 114, at para. 17.
[15] Third, even where the Court finds that one parent has been alienating the children from the other, it is by no means the usual or expected course that the alienated parent receives full custody with limited or no access to the alienating parent: McAlister v. Jenkins (2008), 2008 35923 (ON SC), 54 R.F.L. (6th) 126 (Ont. S.C.J.). The guiding consideration must always be the best interests of the child. In M. (J.E.) v. M. (S.), for instance, where it was evident that the mother had alienated the children from their father, Noble J. refused to award sole custody to the father. He found, first, that it was not beneficial to transfer custody of the children to their father due to inadequate housing arrangements. Moreover, Noble J. was of the opinion that “severing the bonds between mother and children without seeking some alternative arrangement could do immeasurably more harm than good”: at para. 161.
[16] In McAlister, supra, Harper J. rejected an assessor’s assertion that it was generally accepted by clinical professionals that, in severe cases of alienation, the preferred solution is to sever the ties with the promulgator of the alienation and provide reunification therapy for the alienated child: at para. 175. Harper J. preferred the “systems-based” model, which has been described by Professor Nicholas Bala as the recent approach to parental alienation. This model encourages clinicians to consider a number of different factors when investigating possible cases of alienation, including “the age and developmental level of the child, the psychological vulnerability of the child, the behaviours and personalities of both parents, sibling dynamics, the remarriage situation, and the adversarial nature of the custody-litigation context”: at paras. 155-156.
[17] In making my order, I am also aware that the children in this case are entering adolescence. They are forming and voicing their own opinions and they are gaining the ability to enforce their opinions, as evidenced by their adamant refusal to see their father despite the efforts of several adult relatives. It is a simple reality that, despite a court order, teenagers are likely to seek out residency as it suits their desires and to “let their feet do the talking”: Probe v. Grohs, 2013 SKQB 360, 430 Sask. R. 236, at para. 4, and Aalbers v. Aalbers, 2006 SKQB 530, at para. 14. It is for this reason, among others, that judges often refuse to transfer custody in cases involving older children, even when there is severe alienation: G. (N.) v. E. (R.), 2010 NLTD(F) 18, at para. 110.
[18] In my view, having reviewed all of the evidence, this is not a clear case of extreme parental alienation. Rather, in this case, I find that there are elements of alienation and elements of realistic, or justified, estrangement.
[19] On the other hand, I also see evidence that the children are justified in their desire to limit their interactions with their father.
[20] In short, what I see here is a situation where two children are caught in the middle of their parents’ war and where they do feel the pressure to take sides.
[21] I turn now to the additional factors which have guided my decision on custody and access.
[22] With respect to whom then should be given sole custody, I have been mindful of the following factors.
[23] Of course, Ms. Supple is not a perfect parent either.
[24] Finally, I recognize that the boys themselves have expressed a desire to live with their mother.
[25] I am therefore of the opinion that sole custody should be awarded to Ms. Supple, with alternating weekend access to Mr. Cashman, as well as Tuesday evening access on every alternating week.
[26] I also want to impress upon Ms. Supple that it is incumbent on her, as the primary caregiver and the custodial parent, to ensure that the children attend all access visits with their father.
[27] Finally, with respect to the children’s paternal grandfather and step-grandmother, who have been, in my opinion, far too involved in this litigation, I sincerely hope that they will give the children and the parties some much needed space.
Contempt Motion
[28] As noted above, Mr. Cashman brings a motion for a declaration that Ms. Supple is in contempt of court orders requiring her to ensure that the children attend access visits with their father.
[29] Rule 31 of the Family Law Rules governs contempt motions.
[30] The following elements are necessary for a finding of civil contempt.
[31] With respect to the third requirement, the court in Brookes v. Vander Meulen (1999), 1999 14292 (MB QB), noted that the “standard of intention is knowledge of the reasons for the order and contravention of the order.”
[32] Evidence of contempt in family matters should be “clear and unequivocal”.
[33] In Geremia v. Harb (2007), 2007 1893 (ON SC), Quinn J. discussed the efforts which a custodial parent must exert to honestly attempt to comply with a court order.
[34] In Sickinger, supra, the court noted that a parent does not have to force a child to go with the other parent, but should “require” the child to do so.
[35] Counsel for Mr. Cashman argued that the onus was on Ms. Supple to prove that she had made all reasonable and honest attempts to get the boys to attend access visits with their father. I disagree.
[36] I have no difficulty finding that requirements 1, 2 and 4 are met in this case.
[37] It is clear that whether or not the mother has done everything reasonably within her power to require her children to visit with their father as ordered by the court is a determination highly dependent on the facts of this case. Therefore, the motion is dismissed.
Outstanding Amounts Owed
[38] In his interim order, Tausendfreund J. ordered the mother to pay $500 into an RESP fund for every access visit unattended by the children.
[39] There is also the matter of child support arrears owed by Mr. Cashman.
Order
[40] Therefore the following order will issue:
(a) The order of September 7, 2011, is hereby varied as follows:
(i) Teresa Supple shall have sole and permanent custody of the children Nathan Howard Cashman (d.o.b. November 20, 1999) and Trevor Dylan Cashman (d.o.b. March 19, 2002) effective this date.
(ii) Effective September 5, 2014 and every second weekend thereafter, Brad Cashman shall have access to the two children from Friday at 5pm to Sunday at 7pm.
(iii) Effective September 9, 2014, and on alternating Tuesdays thereafter Brad Cashman shall have access to the two children from the close of school to 8:00 pm.
(iv) Teresa and Brad shall be permitted to speak with the children daily when they are with the other parent.
(v) Neither parent, nor anyone on their behalf, shall tape or video record the children without the express consent and knowledge of the children.
(vi) Brad Cashman shall have access to the children from noon on July 1, 2014, until and including noon on July 26, 2014.
(vii) Teresa Supple shall have the children in her care from their drop-off on July 26, 2014, until and including noon on August 16, 2014.
(viii) Brad Cashman shall have access to the children from noon on August 16, 2014, until and including noon on August 30, 2014.
(ix) For all access visits, Teresa Supple will drive the children for their drop off to Brad Cashman and, at the end of the visit, Brad Cashman will drive the children for their drop off to Teresa Supple.
(x) Regardless of the access schedule, the children shall spend Mother’s Day with their mother and Father’s Day with their father from 10:00 am to 7:00 pm.
(xi) The March/winter break shall be as noted in the order of September 7, 2011.
(xii) Christmas holidays shall be divided equally between the parents.
(xiii) Parents’ birthdays shall be as outlined in paragraph 8(d) of the September 7th, 2011 order.
(xiv) Easter vacations in each year shall be as outlined in paragraph 8 (e) of the September 7th, 2011, order.
(xv) Effective 2015, summer vacations shall be in accordance and on the same terms and conditions as the schedule as outlined in the September 7th, 2011, order.
(xvi) The parents shall be entitled to enrol the children in summer camps on their respective weeks with the children during summer vacation.
(xvii) The non-residential parent shall be entitled to access on the children’s respective birthdays from 5pm to 6pm.
(b) Neither parent shall remove the children from Ontario without the prior written consent of the other.
(c) The parents shall make their best efforts to consult in good faith with respect to the children’s extracurricular and sporting activities.
(d) Brad Cashman shall be entitled to be apprised of the children’s school reports and events in a timely manner.
(e) Similarly, Teresa Supple shall keep Brad fully advised of any and all medical emergencies, regular medical, dental appointments and reports in a timely fashion.
(f) The parties shall consult and extend their best efforts to determine issues concerning the boys’ education, health and general well-being.
(g) Neither parent is to speak ill of the other parent, either directly or indirectly, to either child or in either child’s presence.
(h) Having found that Ms. Supple extended all reasonable efforts to comply with the orders of September 2011 and August 9 and 30, 2013 in regards the access issue … I deem it appropriate to grant an order expunging any and all arrears that may have accumulated to date pursuant to the order of August 30, 2013 and would remove that condition going forward.
[41] I also strongly recommend that the parties arrange for counselling for themselves and for the children.
[42] In the event that the parties are unable to agree on the issue of costs I will receive written submissions of not more than three pages in length within 15 days of this date from the applicant with responses in the same prescribed length within 10 days thereafter.
Sheffield J.
Released: June 11, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TERESA SUPPLE (CASHMAN)
Applicant
– and –
BRAD CASHMAN
Respondent
REASONS FOR JUDGMENT
Sheffield J.
Released: June 11, 2014