NEWMARKET

COURT FILE NO.: FC-14-045008-00

DATE: 20140620

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James William Lang, Applicant/Moving Party

AND:

Allison McCarthy, Respondent/Responding Party

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL:
James William Lang, Self-represented

C. Lauer, Counsel for the Respondent/Responding Party

HEARD: June 11, 2014

ENDORSEMENT

[1] James W. Lang is the father and Allison McCarthy is the mother of Eleanor Stephanie Lang, born May 5, 2005. So Eleanor is now 9 years of age. The father wants to have a regular access plan so that there can be some regularity to his time with his daughter.

[2] The mother prefers the present situation whereby Mr. Lang will request time to visit and the mother asks Eleanor if she would like to visit with him. If she is willing, the mother and father arrange a time.

[3] The problem for the mother with regular visits is complicated by certain conditions that Eleanor has to deal with, and ultimately the mother must also as the custodial parent. Eleanor is part of the Disruptive Behaviour Programme at Southlake Regional Health Centre. She is diagnosed with oppositional defiance disorder and anxiety disorder including both separation and social anxiety. The mother has been participating in the programme of therapy and time with a social worker to come up with strategies to assist with the child’s aggressive behaviour and to ease her anxiety issues. The father attended once but not since then. The programme is under the supervision and care of Dr. Joseph, MD, FRCP (C).

[4] Dr. Joseph’s recent report indicated some improvement due to the strategies the mother is learning. However Dr. Joseph concludes:

The gains so far are still fragile; more substantive lasting change will require on-going commitment and engagement of the parent and Eleanor in the treatment process.

The visits with the father lately have been sporadic. Both parents listed the following:

April 12 - 8 hours (father), 5 hours actual (mother)

April 19 - 2 hours

[5] The mother stated that since then Eleanor has seen her father on May 3, 9, 13, 23, 24 and 29. The father did not file an up-dated list but expressed his unhappiness with the present and especially with the mother asking the child if she wants each visit. This certainly adds a certain pressure, forcing the child to choose to spend time with the other parent at a time when Eleanor is probably well aware that her parents are not agreeing on matters concerning her. On the other hand, I appreciate that given Eleanor’s oppositional stance to her mother as her custodial parent, not forcing the child has made life easier for the mother.

[6] The Office of the Children’s Lawyer has been involved lately and is doing an investigation which has seen both parents interviewed but not yet the child as of the hearing of this motion on June 11. A report must be done within 90 days of June 1, 2014. Unfortunately there will be no input regarding access from that source until the summer has passed and the issue needs some direction now. The parents were directed by the case conference judge to attempt to agree on programme of regular visits. They have been unable to do so.

[7] There have been no overnight visits with the father since last year. The father did indicate to me quite frankly, and I appreciate that he did; he senses the child is not yet comfortable with his new residence. However that can be overcome in time with more regular time with the father.

[8] The child and the mother are involved in a therapy programme with a trained professional. The parties are fortunate this programme is available to them. It is my direction that this is where the father must start in order to begin to work with the mother and their daughter on Eleanor’s relationship with both parents.

[9] I am also not content to leave this situation as it is because it is unfair to Eleanor to place the full burden on her as to whether she can see her father while she remains in her mother’s day to day care and control.

[10] It is ordered that:

(i) Until the father begins to attend regularly the therapy sessions in the Disruptive Behaviour programme, he is to have Eleanor for a visit on each Tuesday and Friday after school until 7:00 p.m. and on the Saturday or Sunday each second weekend from 10:00 a.m. until 7:00 p.m., commencing on the weekend of June 28-9, 2014. The father shall tell the mother at least five days before each access weekend which day he wishes to have Eleanor with him. If there is a conflict with some event important to the child on the day selected, the access shall be exercised on the other day of the weekend, with notice to be provided by the mother by email at least three days before the requested day.

(ii) When or if the father begins to show an interest in trying to come to grips with Eleanor’s issues and how to cope with them by attending the therapy and social strategy sessions of the said programme of Dr. Joseph, the father shall have overnight weekend visits each second weekend corresponding with and continuing in the sequence of the one-day weekend visits in para. 1; he shall have Eleanor with him from Friday at 6:00 p.m. until Sunday at 5:00 p.m.

(iii) The weekend overnight visits shall not commence until Dr. Joseph as the parties’ therapist can recommend that they commence. Both parents shall accept Dr. Joseph’s recommendations with respect and with a view to doing what is best for Eleanor and her relationship with each parent. They shall continue to attend the therapy sessions until Dr. Joseph recommends that they no longer require to attend.

[11] If the father does not commence attending the said therapy programme as recommended by Dr. Joseph, the visits with Eleanor in para. 1 will occur only if Eleanor does not express discomfort with a visit without being prompted or asked for her concurrence.

[12] The parents can blame the court and the judge if Eleanor is not happy with this access order.

[13] This order shall remain in force until further order following receipt of the report from the Office of the Children’s Lawyer. On receipt, the parties should request an immediate case conference to consider and attempt to reach consensus on a regular access programme, if possible within the court schedule in Newmarket.

[14] It is my hope that both parties shall get the assistance they need in dealing with the difficult issues that lie ahead as Eleanor grows older. Each day will bring its own challenges to all of the parties including Eleanor. The presence of therapeutic help in this situation can be of great assistance to both and this order attempts to recognize that, in the best interests of the child.

HOWDEN J.

Date: June 20, 2014