COURT FILE NO.: 36440/14

DATE: 2014-06-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KIMBERLEY ANNE ANTHONY, Applicant

AND:

FREDERICK JOSEPH ANTHONY, Respondent

BEFORE: Gray J.

COUNSEL:
Daryl Gelgoot and Vanessa Amyot, Counsel for the Applicant

David Ashbee, Counsel for the Respondent

HEARD: June 26, 2014

ENDORSEMENT

[1] There are two motions before me, one by the applicant and one by the respondent. They have to do with custody and access issues regarding the parties’ child, Grace Kathleen Elizabeth Anthony, born August 8, 2003.

[2] The parties have agreed on two matters. First, they agree to the appointment of Dr. Irwin Butkowsky to conduct an assessment pursuant to section 30 of the Children’s Law Reform Act. They have agreed that the cost of the assessment shall be divided so that 75 per cent of Dr. Butkowsky’s fees and expenses will be paid by the respondent and 25 per cent by the applicant.

[3] The parties have also agreed that, until further order of the court, there will be no contact between Grace and the daughter of the applicant by a previous marriage, Brittany Anne Beatrice Brown.

[4] For at least the last ten months, Grace has lived with each party on a week on/week off basis. The essence of the current dispute is that the applicant wants to vary that arrangement so that Grace will live with the applicant primarily, and that she visit with the respondent on alternate weekends and one evening each week.

[5] There are many things in dispute between these parties. However, the essence of the custody and access issue stems from the applicant’s allegation that Grace does not want to live with the respondent, and that she is very unhappy during the times that she is with the respondent. Grace has been engaging in counselling with a professional counsellor, Rita Reitsma. Ms. Reitsma has arranged meetings among Grace, Ms. Reitsma and the applicant, and Grace, Ms. Reitsma and the respondent.

[6] There are also allegations by the applicant that the respondent has allowed contact between Grace and Brittany Brown, and that that is not in Grace’s best interests. I hasten to say that I have given that allegation no weight. I am not convinced that there has been any significant contact between Grace and Brittany Brown, and in any event there will be no further contact in the immediate future.

[7] For his part, the respondent categorically denies that Grace is unhappy living with him, and he alleges that any perceived unhappiness has been invented by the applicant, with the assistance of Ms. Reitsma who, he alleges, is simply a mouthpiece for the applicant. He alleges that Ms. Reitsma is a close confidant of the applicant’s current romantic partner, and her involvement in this case is suspect.

[8] I am aware of the prevailing caselaw that suggests that the status quo should not be disturbed, except in special circumstances: see Kimpton v. Kimpton, [2002] O.J. No. 5367 (S.C.J.); and Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J).

[9] However, there are cases in which the status quo should be altered and this is one of them. I am persuaded on the balance of probabilities, even on the basis of a paper record, that Grace is disturbed, and she has difficulties sorting out her own feelings. She needs some breathing space in order to do so.

[10] I do not accept that Ms. Reitsma is biased, or that she is simply a mouthpiece for the applicant. She has two masters degrees, including a Master of Social Work. She has worked as a child and youth worker and as a clinical instructor in in-patient psychiatry at the Hospital for Sick Children. She has worked at Family Service Association of Metro Toronto, and Dufferin Child and Family Services as a child and family therapist. She has been in fulltime private practice for about 12 years.

[11] On June 13, 2014, Ms. Reitsma met with the respondent and Grace. The applicant was not present. She sent the parties a letter summarizing the meeting. It reads as follows:

Thanks for both coming this week with Grace to try to find a mutually satisfying solution. I’ve written notes on all of our sessions. I am comfortable sharing them with you when we have signed consent from each of you.

Grace was clear, caring and vulnerably open with you today Fred. She has expressed the same thing for months to both me and Kim. I have held her back from expressing her feelings on the parenting schedule for a long time in hopes that the 50-50 split would be emotionally okay for Grace. She said clearly today that it is still not significantly changing and not working for her. The events of the past number of weeks have further eroded her confidence and trust in real change. She says she wants to have one home. She wants that to be with her mother. She proposed alternate weekends with an evening during the week. She said that evening could be another one than her music lesson night so that you could have more time together. I believe she expressed what she genuinely, personally feels. I have heard the same consistent message throughout. I know she had been afraid of upsetting you Fred. She loves you and benefits a great deal from your relationship.

In essence today, she asked you to let her have one home and then slowly expand the time with you when she can manage it and she can trust real change. She even said that it might at some point be a 50-50 split again.

Fred you left stating that you would now take it to court. My concern is that if it is pushed to that level it will be a lengthy adversarial process which will be of no benefit to any of you. There will be no winners. Most important it will in all likelihood further close off your relationship with your daughter. She was almost pleading with you to work out a better way. It took a lot of courage for her to be so direct.

I hope that there is still an opportunity to resolve this differently.

[12] In my view, the letter reflects a sensitive and insightful understanding of the emotional turmoil through which Grace is going. Regrettably, it also reflects the lack of understanding of the respondent as to his daughter’s emotional difficulties.

[13] In my view, it is essential to give Grace some breathing space in order that she can come to grips with her own feelings about her relationship with her father. That can only be done, in my view, by requiring that Grace live fulltime with her mother.

[14] The applicant suggests that Grace spend alternate weekends with her father, and one evening each week. I do not think that arrangement would be in Grace’s best interests, at least not now. I do not think Grace should be forced to spend time with her father on any regimented basis for some period of time. I think it is better, at least for now, that Grace be permitted to spend time with her father in accordance with her wishes. That means Grace may spend some weekends with her father, and may, in fact, decide to resume living in alternate weeks with her father. However, I think Grace needs to have time to sort out her own feelings in that regard, with sufficient breathing space to do it at her own pace.

[15] With the assistance of Ms. Reitsma, I assume Grace will be able to decide in her own mind, and in her own time, what relationship she wishes to have with her father and when she wishes to spend time with him. Having regard to Ms. Reitsma’s letter, I do not think there is any danger that Grace will decide to spend no time with her father. If she does, this matter may have to be revisited.

[16] For the foregoing reasons, I order as follows:

(a) effective immediately, Grace shall reside with the applicant, and she shall visit with the respondent in accordance with her wishes;

(b) until further order of the court, there shall be no contact between Grace and Brittany Brown;

(c) pursuant to section 30 of the Children’s Law Reform Act, Dr. Irwin Butkowsky is appointed to assess and report to the court on the needs of Grace Kathleen Elizabeth Anthony, born August 8, 2003, and the ability and willingness of the parties to satisfy her needs;

(d) the parties and the child shall attend for assessment by Dr. Butkowsky at such times as he may require;

(e) the fees and expenses of Dr. Butkowsky shall be paid by the parties, 75 per cent by the respondent and 25 per cent by the applicant, as invoiced by Dr. Butkowsky;

(f) Dr. Butkowsky shall report to the court within 90 days.

[17] I will entertain brief written submissions with respect to costs, not to exceed three pages, together with a costs outline. Mr. Gelgoot will have five days to file submissions and Mr. Ashbee shall have an additional five days to respond. Mr. Gelgoot will have three days to reply.

Gray J.

Date: June 27, 2014