ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FA-019184
DATE: 20140728

BETWEEN:

C.V.W.
Applicant

– and –

M.W.M.P.
Respondent

Alex Finlayson, for the Applicant
W. Douglas R. Beamish, for the Respondent

HEARD at Toronto: July 15, 2014

Reasons for judgment
C. Horkins J.

introduction

[1] The parties were married on July 10, 1993 and are now divorced. They have two children: SP born in […] 1997 and OP born in […] 2008. Each party has brought a motion. The relief they seek relates to the children. The eldest child is now 17 years old. The younger child is now 6 years old and is the main focus of these motions.

[2] In summary, the applicant mother seeks an order directing that OP and the other family members attend counselling with Dr. Rex Collins and that the parents share the cost of this counselling equally. She also seeks an order authorizing her to have OP undergo various educational testing and a psycho-educational assessment without the consent of the respondent father. Lastly, mother also asks that the Office of The Children’s Lawyer be requested to appoint a lawyer to act for SP.

[3] The respondent father brings a motion for access to OP on alternating weekends. He also seeks an order directing that OP attend Lambton Kingsway Junior School in September 2014 and that the child’s primary residence be changed to the respondent’s home when school starts this fall.

[4] The children were 12 and 1 years of age when the parties separated in July 2009. The family lived in downtown Toronto. All issues were settled and documented in two Separation Agreements dated December 16, 2009 and March 16, 2010. The second Separation Agreement dealt with the children. It was agreed that the children would live primarily with mother and that the parties would have joint custody. Father’s parenting time with the children was set out in a schedule in the Separation Agreement. OP was to reside with father Mondays at 6 p.m. to Tuesdays at 6 p.m., Thursdays from 10 a.m. to 6 p.m. and Fridays from 6 p.m. to Saturday at 11 a.m. Obviously this was a schedule that would have to be changed once OP started school.

[5] Pursuant to the Separation Agreement, no child support is paid but the parties acknowledge it might be appropriate to impute income to the respondent in the future.

[6] Soon after the Separation Agreement was signed, parenting disputes started. These disputes continue with no end in sight. The record shows that the parenting relationship is filled with conflict and an inability to cooperate. Absent a significant change in conduct, these parents are not capable of jointly parenting the children.

[7] Mother is employed full time as a lawyer. Father has remarried and has two new children. He is described in the Separation Agreement as a self-employed writer and musician who earns nominal income. Mother’s affidavit states that he runs a recreational soccer club.

[8] In father’s Form 35.1 affidavit he states that he works part-time and is generally home and available to care for the children. His new wife is named as a person who will assist him in caring for the children. Assuming OP’s primary residence is moved to father’s home, father provides no plan for how the children will have regular contact with mother and other family members. Lastly, he states that the children do not have any special medical, educational, mental health or developmental needs.

[9] Mother’s Form 35.1 proposes a plan for OP. He will continue to live primarily with mother and father’s access will be dependent on ensuring that OP is not subjected to emotional harm. Mother identifies OP’s need for therapy and possible special educational needs.

[10] The applicant commenced this application in January 2014. She seeks an order for sole custody of the children with access to the father. She also seeks an order for therapy. In his Answer the respondent also seeks sole custody of the children.

The Conflict

[11] The following is a review of the conflict that has occurred and the concerns that have developed about OP’s well-being. While both parents have participated in this conflict to various degrees, it is apparent that father’ conduct is far more significant and troublesome. The following reveals that the applicant has tried on many occasions to minimize the growing conflict and act in the best interests of the children.

[12] After separation, the applicant retained the matrimonial home in downtown Toronto and the respondent lived close by. The applicant now lives in Leaside and the respondent lives in Etobicoke with his new wife and children from his second marriage.

[13] Problems arose when it was time for the older child, SP, to attend high school. The child wanted to attend the Etobicoke School for the Arts. She applied and was not accepted. In 2011, the respondent decided to move to Leaside where she bought a home and enrolled her daughter at Leaside High School. The child attended Leaside High School for Grade 9. Unbeknownst to mother, the daughter continued to try and apply to the Etobicoke school and was accepted. While mother alleges that father assisted the child behind mother’s back, it is not necessary to decide this point on these motions.

[14] SP lived primarily with her mother until the fall of 2012 when she moved to Etobicoke to live with her father and attend the Etobicoke School for the Arts. Sadly, mother and daughter have had virtually no contact since June 2013. There is conflicting evidence about why their relationship has suffered. SP is now 17 years old.

[15] In 2011, while SP was still living her mother, father and daughter often communicated by text. A series of text messages are included in the evidence and they reveal that father involved his daughter in the parental conflict. For example, in the text messages father told his then 14 year old daughter the following:

Your mum is baiting me into conflict. I can’t allow that.

She doesn’t have the legal right baby. This is an opportunity to stand up to a bully. If she wins, it will continue. It’s up to you, maybe now’s not the right time. At least she’s finally shown her true colours.

Your mum wants to provoke conflict. Hoping I will do something stupid. I cannot allow her to bully me into a situation that could adversely affect all of our lives

Don’t you see what she’s doing baby? She’s holding you guys ransom. So it seems like it’s my fault that you can’t. It’s all about control. If I let her get away with this, it will never end. I want a life with you guys. Not just a weekend on her terms. This manipulation is unforgiveable.

You are not your mum’s prisoner. If you want to come you can. Keeping you away from us is spiteful. Speak your truth love. Be brave

[16] Involving the children in a family law dispute is concerning parental behaviour. Children should never be placed in the middle of parental conflict. Nothing is to be gained and harm may result.

[17] The applicant was concerned about these text messages and the growing problem with scheduling parenting time. On April 26, 2011, her lawyer sent a letter to the respondent expressing the applicant’s concerns with the respondent’s continued involvement of their daughter in the scheduling changes and the derogatory comments he was making about mother to the daughter. Counsel suggested that a parenting coordinator would be extremely helpful to quickly and efficiently resolve the scheduling problems. The applicant offered to consider paying 70% of the cost of a parenting coordinator. The letter addressed some of the scheduling problems (the drop off location, the fact that mother was doing all drop offs and pickups and father’s unilateral changes to the schedule). The respondent sent a lengthy reply setting out his complaints about the applicant. He did not agree to consider using a parenting coordinator.

[18] The applicant states that OP’s residential schedule has been a “perpetual problem” since the parties signed the Separation Agreement. I agree. Although the Separation Agreement sets out specific times when OP will reside with his father, the respondent has not followed the schedule. Further, the need to revise the schedule now that OP is in school is always a source of conflict. The applicant has accommodated many of the respondent’s requests for changes in the schedule. She offers specific examples in paras. 45-56 of her affidavit.

[19] The respondent blames the applicant for the scheduling problems. He states in his affidavit that “he has numerous emails” from the applicant “where, at the last minute, she would change the schedule and times that I was to have OP. It got to the point where, to avoid conflict with [the applicant], I stopped my efforts to have access to OP”. None of the “numerous emails” are attached to the respondent’s affidavit.

[20] The applicant denies that she has tried to make it difficult for the respondent to see OP and explains that she has “bent over backwards to facilitate his access”.

[21] In June 2012, the respondent told the applicant he wanted to enroll OP at Lambton Kingsway School and keep OP with him during the week. The applicant refused. Father’s request was contrary to the Separation Agreement that stated the children would live primarily with the applicant.

[22] During the 2012-2013 school year, the parties agreed that OP would remain in the Leaside daycare. This daycare offered a full Junior Kindergarten program. The access was changed so that OP was with the respondent from Saturday at 6 p.m. until Tuesday morning when the respondent dropped OP at daycare. Under this schedule, OP stayed at home with the respondent on Mondays and went to daycare Tuesdays through Fridays.

[23] In February 2013, the respondent asked the applicant to change the schedule again. He said he could no longer watch OP on Mondays because he was busy at work and could not drop OP at daycare on Monday mornings. He wanted the applicant to drop OP at his house at lunch on Saturday and proposed that he would return him to the applicant Sunday night. This request gave the applicant little time with OP on the weekends. It also meant that OP and SP were on opposite schedules (for their time with father). The respondent insisted on this change. The applicant agreed to avoid conflict.

[24] In June 2013, SP stopped spending weekends with her mother. The respondent stopped returning OP to the applicant on Sunday night and instead required the respondent to come and pick up OP.

[25] On July 14, 2013, the respondent asked to change the schedule again. He sent the applicant a text message telling her that he would take OP to daycare on Tuesdays and that she should cancel the Monday daycare. There were further changes to the schedule in the fall of 2013.

[26] In the spring of 2013, OP finished Junior Kindergarten at the daycare. The applicant enrolled OP to start senior kindergarten at Northlea Public School in September 2013. School ran for half days, from 8:50 a.m. until 11:20 a.m. The applicant enrolled OP at Bizzy Beez daycare for the afternoons to ensure he had after school care. She selected the Bizzy Beez daycare because the daycare staff pick the children up from Northlea school and take them to the daycare after school.

[27] Before the start of the 2013 school year, the respondent tried to unilaterally enroll OP in the Lambton Kingsway School. The applicant refused to agree. Her counsel told the respondent that he would have to follow the dispute resolution process in the Separation Agreement to resolve the school issue. Alternatively, the applicant offered to discuss the school issue with a parenting coordinator.

[28] The applicant proposed that a mediator/arbitrator be appointed to help resolve the parenting issues on a long term basis. In the interim, she proposed an interim parenting schedule on the basis of a two week rotation. In week one from Fridays after school or daycare until Sundays at noon. In week two from Saturdays at 6 p.m. to Sunday at 6 p.m.

[29] The respondent did not agree with the mediation/arbitration suggestion. Instead, the respondent agreed that OP could attend Northlea Public School in September 2013 if OP was moved to Lambton Kingsway for Grade 1. The applicant rejected this condition. She attempted to initiate a discussion about the parenting schedule for the 2013-2014 school year. The schedule remained unresolved.

[30] After several letters back and forth between counsel, the respondent agreed with the applicant’s proposed interim two week rotation schedule. This agreement was set out in counsel’s letter dated September 9, 2013. The letter does not mention the respondent’s previous condition that OP attend the Lambton Kingsway School the following year.

[31] The respondent created more problems in the September 9 letter. In the letter his counsel stated that the applicant must limit all communications with the respondent. She was told to “[a]void all personal contact with [the respondent] including texts and emails” and the applicant “is not permitted on [the respondent’s] property at any time.” All communication was to go through counsel. With respect to the respondent picking up OP from daycare, if any communication was required, the respondent wanted to use the daycare operator as the messenger. The letter states that “the daycare coordinator can contact him directly or vice versa”.

[32] Applicant’s counsel responded in a letter dated September 12, 2013. Once again, the applicant requested that they follow the dispute resolution provisions in the Separation Agreement. The applicant wanted a process in place to deal with any future disputes. She suggested a specific mediator/arbitrator and requested that the respondent propose an alternate mediator if he would not agree to the person proposed. This letter also responded to the respondent’s refusal to communicate except through counsel. The letter describes this proposal as “unworkable and inappropriate” and explains as follows the practical difficulty with the respondent’s demands:

How does your client expect a joint custody arrangement to work given that he is insisting that she not contact him, including via text and email? He says that she cannot go on his property, yet according to the schedule set out in my letter dated September 5, 2013, to which your client agrees, [the applicant] is supposed to pick OP up at his house on Sundays at noon and at 6:00 p.m. on alternating weekends. Your client picks OP up at my client’s home on Saturdays at 6:00 pm on alternating weekends

She needs to be able to go to his property for pick ups. She also needs to be able to text and email him in certain circumstances. He needs to do the same. They also need to speak. While she will keep her communications with him to a minimum and only communicate with him when necessary, a term that there be no communication is not appropriate and is in fact contrary to the Separation Agreement. OP may be sick some day, or someone may be running late, or there may be another unforeseen circumstance or an emergency. It is wholly inappropriate to expect day care staff to coordinate the schedule between the parties as [the respondent] proposes.

Would you please direct your client to communicate when appropriate and please ask him not to cause a scene or involve SP in any conflict when [the applicant] arrives at his property to pick OP up.

In accordance with the schedule in the letter, your client is picking OP up on Friday either at the school or the day care this weekend. The daycare (and frankly [the applicant]) need to be informed as to the pick up time and location so please have him send her a text or email in this regard.

[33] The specific concerns that applicant’s counsel raised in this letter were reasonable and should have been obvious to the respondent. However, there is no evidence that the respondent or his lawyer ever responded. Instead, the respondent inappropriately chose to draw the daycare into his dispute.

[34] On September 12, 2013, the respondent sent an email to Shauna Mann at the daycare attaching his lawyer’s September 9 letter. He told Ms. Mann that he had not received a response. In fact a response had been sent earlier that day. He gave Ms. Mann his telephone number and stated: “please recognize and respect that the ambush methodology employed by [the applicant] is not appreciated, especially coming from your offices.” It is completely unclear what the respondent considered to be an ambush. He told the daycare that they are “unwitting participants in this charade”.

[35] Problems continued during the fall of 2013. It is unclear how the parenting schedule was managed given the respondent’s unreasonable demands concerning no contact. The evidence shows that OP did visit his father on the weekends as agreed. It is unclear how often this occurred.

[36] On Sunday, September 15, 2013, the applicant picked OP up after his weekend with his father. According to the applicant, OP told his mother what his father had said about her. He told OP that she was a “witch” and was “telling me [OP] lots of things that are mean to you.” The applicant’s counsel reported this conversation to respondent’s counsel in a letter dated September 19, 2013 and again asked that the parties agree on a mediator/arbitrator so they could resolve decision making, discuss the need for family therapy and a parenting schedule. There is no evidence that the respondent or his counsel replied to this letter and the respondent does not deny the above in his affidavit.

[37] On September 21 and October 5, 2013, OP refused to go with his father and the visits did not occur. The respondent did not pick up OP for a November visit and gave no warning in advance. The applicant explains that the repeated changes to the schedule that father initiated, were disruptive and difficult for OP.

[38] The respondent does not deny that he asked for the various parenting schedule changes. Instead, he blames the applicant for becoming more “demanding, uncompromising and difficult” about the time he wanted to spend with OP. The respondent states that the applicant often changed the schedule at the last minute. The respondent’s criticism is unfair since he demanded the frequent changes and the applicant agreed to avoid conflict.

[39] In December 2013, the respondent unilaterally decided that he would no longer follow the interim parenting schedule that he had agreed to in writing on September 9, 2013. His response to the scheduling difficulties was extreme and unreasonable. He had several reasonable options available to him and chose none. For example, he could have used the dispute resolution process in the Separation Agreement or involved a parenting coordinator. Instead, he decided to solve the problem by terminating his access to OP. As a result, he has not seen his son for seven months. He states in his affidavit as follows:

It got to the point where, to avoid conflict with [the applicant], I stopped my efforts to have access with OP. At present, I am not exercising any access to OP.

[40] While the respondent says that he terminated access with OP to "avoid conflict with [the applicant]", he has given other explanations for choosing not to see his son. The Children’s Aid Society (“CAS”) case worker, Erin Kerr spoke to the respondent on January 13, 2014. The CAS file has been produced and is referenced below. Ms. Kerr’s notes record her discussion with the respondent as follows: “He explained that he is not exercising his access because he feels that it is too disruptive to [OP] to have to go back and forth all of the time".

[41] On December 12, 2013, the respondent sent an email to Shauna Mann at the Bizzy Beez daycare. In his email he told Ms. Mann that he can “no longer participate in [the applicant’s] dictated schedule" because it “is hard on [OP] and offers him no stability whatsoever. His sleep deprivation added to the arduous journey across the city is disruptive to him, to our household and all the children".

[42] To be clear, the schedule that the respondent refers to in this email is the one he agreed to on September 9, 2013. On an interim basis a two week rotation was set up. In week one, OP was with the respondent from Fridays after school or daycare until Sundays at noon. In week two, from Saturdays at 6 p.m. to Sunday at 6 p.m. There is nothing unusual or arduous about this schedule. It is similar to many parenting schedules that are considered in court. Parents in other families routinely follow similar schedules with success.

[43] The respondent’s criticism of this schedule is without merit. He agreed and it was not “dictated” by the applicant. This clear schedule provided stability for OP in contrast to the constantly changing schedule that had been happening. The times were reasonable and could not have caused sleep deprivation.

[44] In the fall of 2013, OP started to exhibit some behavioural concerns. Both parents observed the very concerning behaviour. The applicant tried again to engage the respondent’s cooperation and was met with resistance.

[45] During a parent teacher interview on November 14, 2013, the teacher expressed a concern that OP might be dyslexic. The respondent had refused earlier that year to communicate directly with the applicant and so she could not call him to talk about this concern. She mailed the report card to the respondent and it was retuned as undeliverable.

[46] OP’s temper tantrums increased and he started to hit himself. Even more concerning, the child spoke about wanting to die or “kill himself” and both parents knew this. It is difficult to imagine a more worrisome situation for parents.

[47] The applicant had repeatedly tried to secure the respondent’s consent to use the dispute resolution process, but the respondent would not agree even though it was a term of the Separation Agreement that he signed. The respondent refused to speak to the applicant directly about OP and directed that all communications had to go through counsel. There is no evidence that the respondent tried to reach out to the applicant. His failure to do so in the face of his son’s concerning behavior is simply shocking. The respondent clearly recognized that his son was struggling and yet his solution was to terminate all contact with his son. One can only imagine the confusion in OP’s mind when his father terminated the access. The respondent’s decision to cut off access was irresponsible and demonstrates a lack of insight into the best interests of his son. What follows reinforces this characterization of the respondent’s conduct.

[48] On Thursday, December 12, 2013, the respondent went to OP’s school, picked him and delivered him to the Bizzy Beez daycare. This was contrary to the parenting schedule that the respondent had agreed to and without notice to the applicant. At the daycare, the respondent spoke to Shauna Mann and then sent Ms. Mann an email the same day. Excerpts from this email are set out below:

We can no longer participate in [the applicant’s] dictated schedule. It is hard on OP and offers him no stability whatsoever.

His sleep deprivation added to the arduous journey across the city is disruptive to him, to our household and all the children.

[AS], his teacher at North Lea indicated that he has separation anxiety issues and is developing an aversion to change. Understandable. She also says he internalizes everything and blames himself.

Following his statement on the weekend, saying that he that he wanted "to kill himself" while hitting himself in the head is disturbing.

We consulted with a child psychologist Lee Piepgrass with regards to the latest statement. She is concerned. We have met with Lee on two occasions in an attempt to understand/deal with [the applicant’s] unconscionable behaviour towards her children. She like my lawyer, having read all legal correspondence, have concluded that [the applicant] is mentally unstable. As such Lee advised against meeting with OP for fear it might provoke more inane reactions from [the applicant]. I agree.

OP is on the front line and it is my wish to stop him and his life being used as a weapon. The legal conflict with [the applicant] is pointless, she can out spend me any day. Only the lawyers win.

To avoid a costly court battle, I have now conceded to [the applicant’s] bullying tactics with regards to custody.

Thus I have contacted [DE], Principal of North Lea, and [AS] his teacher to apprise them of this situation.

As we stand, you Shauna and Allison are my son's primary care givers. I ask of you, as I did personally to pay close attention to his physical and emotional state. Should there be any concerns do not hesitate to contact me.

I will contact you when we are coming to visit OP. As we endeavour to be a part of his life and reassure him that he is very much wanted, loved and missed.

[49] Ms. Mann immediately forwarded the respondent’s email to the applicant. She advised the applicant that her conversation with the respondent that day was similar to what he stated in his email. Further, Ms. Mann advised the applicant that they had sent the respondent’s email to their lawyer as “this goes beyond our comfort level”.

[50] Applicant’s counsel immediately sent an email to the respondent’s counsel setting out his client’s concerns with the respondent’s email. The applicant wanted to avoid a crisis over the Christmas holidays. Additional access was offered to the respondent in this email and he was asked to send a proposal. There was no reply.

[51] Instead of offering a proposal for Christmas, the respondent called the applicant’s brother and said the applicant would not let him see OP during Christmas. I pause to note that this is at odds with the respondent’s decision to terminate his access to OP. The applicant tried to set up a schedule that followed what they had done in previous years. Her brother offered to have his house as the drop off location. The respondent refused every suggestion and, as a result, OP did not see his father at Christmas.

[52] The applicant asked the respondent on numerous occasions to use the dispute resolution process to handle their unresolved issues and he continually refused or failed to respond. On January 16, 2014, the applicant commenced this application. In the circumstances she had no choice. All of her efforts to use the dispute resolution process had failed. At a case conference, she agreed to delete the dispute resolution section in the Separation Agreement.

[53] On April 1, 2014, the applicant sent the respondent a text message because OP had asked the applicant if he could call his dad. The text stated: “[OP] would like to call and talk to you on the phone. If you would like to speak with him please advise of a convenient time for him to call.” The respondent did not reply to this text.

[54] After the motion was argued more conflict occurred. After an urgent request from applicant’s counsel, I allowed the applicant to submit a supplemental affidavit and gave the respondent an opportunity to reply. The applicant’s affidavit reported a visit between SP and OP that took place at OP’s daycare on July 16, 2014.

[55] During the motion, the ability of SP to see her brother was raised. Obviously re-establishing contact with her brother is challenging because SP does not speak to her mother and the respondent unilaterally cut of his access to OP. I observed in court that there is no restriction on SP seeing her brother. Like her father, she has not seen OP since December. After the motion, father communicated to SP that she is free to see her brother. The next day SP went to the daycare to visit her brother. She contacted the daycare before arriving to visit her brother. She did not contact her mother.

[56] While father reports that SP and OP had a good visit, more conflict has arisen because of this visit. Father’s affidavit records what SP observed regarding mother’s care of OP. The report is critical of mother. As well, SP reported back to her father what OP said about not seeing his father: “It’s [dad’s] choice not to see you.” This is another example of SP being placed in the middle of this litigation.

[57] These supplemental affidavits do not alter my decision. The affidavits are yet another example of the family conflict that must end. This court recognizes that OP needs to resume contact with his father and sister. OP’s access to his father and sister must resume with clear structure and certainty. If SP wishes to see her brother on days when OP is not visiting the respondent, then she must contact her mother and make arrangements to see OP.

OCL request for SP

[58] The applicant asks the court to request the OCL to provide representation for SP in this application. I decline this request for the following reasons. SP will be 18 years old next June and her views and preferences regarding her parents and where she wishes to live are already known. No useful purpose would be served by allowing this request.

[59] The anger that SP holds against her mother is not healthy. The court is concerned that SP will unfairly influence her young brother’s relationship with his parents. As explained below, SP would benefit from counselling and, in particular, resuming a mutual relationship of respect with her mother. However, at the age of 17, it is up to SP to pursue this path with the encouragement of the parents.

The Counseling/Therapy Issue

[60] The applicant has tried to seek help for OP from various professionals. She met with Dr. Rex Collins on January 7, 2014 and inquired about therapy for OP. However, this could not take place without the respondent’s consent.

[61] The applicant spoke with the CAS case worker on January 13, 2014 and asked for the worker’s assistance in obtaining the respondent’s consent for OP to see Dr. Collins. The consent was provided and an appointment was scheduled for OP to see Dr. Collins on January 21. After this first appointment, the respondent withdrew his consent for OP to be treated by Dr. Collins.

[62] The respondent recognizes that OP needs help. Instead of discussing it with the applicant, he told Ms. Mann in his December 12, 2013 email that “we consulted with a child psychologist Lee Piepgrass with regards to the latest statement.” I assume that when the respondent says “we” he means himself and his wife. He did not copy the applicant or her counsel with this email. The applicant did not know about this consultation until she received a copy of the respondent’s email. Instead of reaching out to Lee Piepgrass to obtain help with OP, the respondent’s focus was the applicant. He states: “We have met with Lee on two occasions in an attempt to understand/deal with [the applicant’s] unconscionable behaviour towards her children.”

[63] In the respondent’s affidavit he states that he has “engaged Lee Piepgrass, PhD, Child Psychologist” and that she “has worked for at least 30 years as a behavioural consultant and a child’s therapist”.

[64] A copy of Lee Piepgrass’ resume is not attached to the affidavit. The respondent says there is “no good reason” why his access cannot be reinstated and if the applicant is concerned about the fact that he has not seen his son since December then counselling with Lee Piepgrass can address this concern.

[65] The applicant has requested a resume for Lee Piepgrass. The respondent has not provided one. The applicant called the College of Psychologists and was told that Lee Piepgrass is not registered with the College. According to the applicant’s internet search, Lee Piepgrass practices “Energy Psychology”. There is no evidence as to what this involves.

[66] In February 2014, applicant’s counsel notified respondent’s counsel of a cancellation date for a case conference in early April. In this email he states: “In the meantime, your client had consented to OP attending therapy with Dr. Collins and then he revoked his consent. The CAS has sent a letter recommending therapy. Will he please consent so that this doesn’t get delayed?”

[67] Counsel for the respondent confirmed in a letter dated February 24, 2014 that the respondent would not consent to OP attending therapy with Dr. Collins. No explanation was given. Counsel for the respondent suggested that they leave the issue of therapy for discussion at the case conference in April.

[68] Once again, the respondent demonstrated his inability to appreciate the seriousness of his son’s situation. OP’s behaviour and wish to die or kill himself required immediate attention and the cooperation of both parents. The respondent continually fails to cooperate.

[69] The case conference was held on April 25 and no agreement was reached to allow OP to attend counselling or to deal with the potential dyslexia that the teacher had noted. The respondent continued to refuse both requests.

[70] After the case conference applicant’s counsel wrote to the respondent’s counsel to advise that they would be bringing a motion. He asked counsel to send him a copy of Lee Piepgrass’ curriculum vitae. Despite the request and this motion, it has not been provided.

[71] After the case conference, counsel for the respondent approached the applicant’s counsel and asked if the respondent could have access to OP that weekend. Understandably the applicant was concerned with this last minute request. OP had received no counselling and had not seen the respondent for several months. As well, OP had play dates scheduled with friends for the weekend. The applicant wanted to engage the assistance of a professional to assist OP and reintroduce the respondent into OP’s life.

[72] Part of the respondent’s dispute regarding counselling with Dr. Collins focuses on whether the counselling should be for the entire family or just OP. The applicant offered to resume the respondent’s visits with OP, if he agreed in the interim to allow OP to see Dr. Collins. No consent was provided. OP has not seen the respondent since the respondent chose to terminate contact in December 2013.

[73] Recently, the applicant’s family doctor gave the applicant a referral for OP to see Dr. Till Davy, a pediatrician. Dr. Davy has made referrals for OP to have a hearing test, eye test and to see a psychologist to discuss a pysco-educational assessment. He has also referred OP to Angus Lloyd Associates, a center that works with children that have learning challenges.

[74] When the applicant could not secure the respondent’s consent to send OP to Dr. Collins she pursued other avenues for treatment. OP was enrolled in a social skills program called “Behaviour Matters”. She also contacted Families in Transition and attended an intake program on March 20, 2014, and a program on children’s residential schedules on April 15, 2014. The applicant remains in regular communication with his school and day care and staff have confirmed he is doing better.

[75] The applicant states that since the respondent terminated access to his son, OP’s behavior has settled. He has stopped making comments about wanting to hurt himself and stopped acting aggressively. Outbursts have reduced. OP talks about his father infrequently and says that he misses him.

The CAS Investigation

[76] A copy of the CAS file was produced for the motions. Their file was opened on June 21, 2013 following a report received from the respondent about the applicant’s treatment of the two children. He reported parent-teen conflict between the applicant and their daughter. He told the CAS that he worried that the applicant’s anger would be taken out on OP. The respondent had photographs of marks, bruises and cuts on OP that had happened at different points in time. OP told the CAS that his son had never disclosed being harmed by his mother. The respondent was calling because he worried about his son being exposed to emotional harm.

[77] The CAS conducted an investigation. They met with the parents and interviewed OP alone. OP spoke positively about his parents. He was shown the photographs that the respondent had taken of bruises and cuts. OP denied that his mother hit him and told the CAS that he gets hurt playing sports and while playing with friends. The minor injuries that are depicted in the photographs are consistent with such activity. The CAS concluded that OP was safe and there are no child protection concerns. They closed their file in February 2014. In the closing letter CAS encouraged the parents to work together to meet OP’s needs and, in particular, to speak to a counsellor or a psychologist.

[78] Although the CAS investigated the respondent’s concerns and concluded that there are no child protection concerns, the respondent continues to allege that the same photographs support his position that there are “serious concerns about the treatment of OP in the hands of his mother”. I reject his position and accept the report from the CAS.

analysis

1. Counselling

[79] The applicant seeks relief that is limited to counselling and educational related testing for OP. Her relief includes a request that the entire family attend counselling and that they sign a Family Treatment and Intervention Agreement with Dr. Collins.

[80] It is very concerning to this court that a motion was required to allow the applicant to take OP to counselling with Dr. Collins. While I appreciate the respondent’s reluctance to include the entire family in this process, he was offered the opportunity to start counselling for OP and resolve the issue of the extensive family counselling on the motion.

[81] The respondent has demonstrated a lack of insight regarding the welfare of his son. There is no other way to explain his ongoing refusal to cooperate in arranging counselling. Even if the respondent has some reason to criticize the applicant’s conduct, it does not justify his behaviour.

[82] The relief that the parties request must be considered in the context of what is in the best interests of OP. Clearly, OP requires counselling and it must commence immediately. This leaves the question of who will conduct the counselling and whether the family will be involved.

[83] Counselling for OP with Lee Piepgrass is not an acceptable option. The respondent provided no particulars of her credentials. Further, if the respondent’s evidence is accurate, her involvement to date has been to assist the respondent and his family dealing with the applicant. According to the respondent, Lee Piepgrass has drawn the conclusion “having read all legal correspondence” that the applicant is “mentally unstable”. This is what the respondent told Shauna Mann at OP’s daycare in his email dated December 12, 2013. The parties have attached extensive legal correspondence to their affidavits. There is no basis whatsoever, on any of the evidence before this court, to draw this conclusion about the applicant. If Lee Piepgrass actually did so, then I would have concerns about her counselling OP since it demonstrates a possible bias, having drawn a conclusion based on an incomplete inquiry.

[84] Dr. Collins’ curriculum vitae confirms that he is very qualified to counsel OP. He is a psychologist with extensive experience counselling children. Currently, he is the Clinical Director at The Willow Center that provides psychological services for infants, children and adolescents. Dr. Collins is available to start counselling in August.

[85] The applicant has provided the court with a sample “Family Treatment and Intervention Agreement” form from Dr. Collins. It is unclear based on this sample agreement whether the focus of this counselling will be OP or the family as a group. The respondent resists “family” counselling because they are no longer a “family”. While technically accurate, the parties are still the parents of the two children and this unit is dysfunctional.

[86] Without restricting the role of Dr. Collins, the focus of his counselling is OP. If Dr. Collins is of the professional view that OP’s counselling requires the parents and both children to participate as a group or individually then that should happen as directed by Dr. Collins. If the respondent and/or SP refuse then OP’s counselling should proceed without their participation.

[87] A concern was raised during the motion that Dr. Collins might be used as a witness in the ongoing custody and access dispute. To be clear, Dr. Collins is not conducting a custody and access assessment. His role is to provide OP with the counselling that he requires. Hopefully this counselling will assist OP in reestablishing a safe and healthy relationship with his father and sister.

[88] I recognize that SP is 17 years old. Given her age, this court is not ordering her to attend counselling for herself or to assist with OP’s counselling. However, it is important that she understand the need to avoid conflict for the sake of OP.

[89] SP should be encouraged to attend counselling sessions with Dr. Collins if he requests her participation. Since SP is estranged from her mother, the respondent is the only one that can encourage SP. The respondent has an obligation to do so because it is in the best interests of the children.

[90] The applicant’s notice of motion requests that the parties equally share the cost of OP’s counselling with Dr. Collins. She suggests that this can be subject to reapportionment later if requested by either party. The respondent says that he cannot afford this counselling. However, he states in his affidavit that he is prepared to be “fully responsible” for Lee Piepgrass’s fees.

[91] Pursuant to the Separation Agreement, the respondent pays no child support. He has offered no evidence of his financial circumstances that might explain his refusal to pay for OP’s counselling with Dr. Collins.

[92] I conclude that it is fair and reasonable to require the parents to equally share the cost of OP’s counselling that Dr. Collins provides. OP’s counselling should proceed as soon as Dr. Collins is available. The parties shall forthwith provide Dr. Collins with the money retainer he requires. They will cooperate with Dr. Collins in his counselling of OP and attend at his office as requested for counselling sessions. Cooperation shall include signing any agreement that Dr. Collins requires in order to start OP’s counselling. If the respondent refuses to cooperate with the counselling in any way, the applicant has the authority to proceed without his consent or participation.

2. OP’s School and Residence

[93] The onus is on the respondent to prove on a balance of probabilities why it is in OP’s best interests to change his school and primary residence.

[94] The respondent alleges that the Lambton Kingsway School is superior to Northlea Public School. He offers rating information without explaining the source. If these ratings are accurate, both schools have acceptable ratings and the difference is not significant. Lambton is rated 142 out of 2,714 schools in the Toronto School District School Board and Northlea is rated 356 out of 2,714. School ratings do not determine the motion. It is one factor and, in this case, it is a neutral one given the results.

[95] A new school would require a significant change in the status quo. OP would have to live primarily with his father. He has lived primarily with his mother since the age of one. This is pursuant to the Separation Agreement. OP is settled at Northlea Public School and at his after school daycare.

[96] Courts do not support a change in a child’s status quo on an interim basis absent a compelling reason (see Cropper v. Cropper, [1974] O.J. No. 477 (C.A.).

[97] As Wildamn J. stated in Sider v. Sider, [2004] O.J. No. 3479 at para. 5:

The “safe” decision, from a legal standpoint, is to leave things as they are until the trial. The caselaw overwhelmingly supports the very sensible proposition that temporary orders should not be changed right before a trial. Decisions about a child's residence are so important that they should generally be made by a trial judge with full benefit of hearing all the available evidence. Temporary custody motions should not be used to circumvent the trial process and there must be a pressing need to uproot a child from her present home environment and school. See Steers v. Monk, 1992 7156 (ON CJ), [1992] O.J. No. 2701 (OCJ) citing Dunning v. Dunning and Gallard, [1987] WDFL 2 (Ont. HC).

[98] In this case the need for stability is even more pressing. OP has not seen his father since December 2013. He has exhibited concerning behaviour that requires immediate attention. It would not be in his best interests to uproot his familiar environment by changing schools and his primary home, pending a final determination in this application.

[99] The respondent has not satisfied the court that this change is required. The evidence shows that such a change would not be in OP’s best interests. As a result, the respondent’s request that OP move his primary residence and attend Lambton Kingsway Junior School commencing September 2014 is denied.

3. The Respondent’s Access

[100] Section 16 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) governs. In particular s. 16(10) states that “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”

[101] The respondent wants to resume his access to OP and the applicant agrees that this should occur. The respondent is asking for less time with OP than what the last agreement allowed.

[102] Since OP has not seen his father since December 2013, the applicant wants access to resume with the assistance and direction of Dr. Collins. If counselling is delayed then she asks that access be supervised.

[103] I agree that Dr. Collins will be of assistance to the parents as access is resumed, but I do not agree that resuming access can only occur first in Dr. Collins office and only with his direction. Access should resume immediately. I do not see the need for access to be supervised. However, there is a need for the access schedule to be followed without constant change and conflict.

[104] While I have serious concerns regarding many aspects of the respondent’s conduct, I am satisfied that OP is safe in his care if the respondent abides by the following directions:

(1) The respondent must follow the access schedule to provide OP with the certainty he requires and is entitled to.

(2) The respondent shall not take OP to see Lee Piepgrass (or any other counsellor) for counselling of any kind. All counselling shall be provided by Dr. Collins.

(3) The respondent shall not discuss this litigation with OP.

(4) The respondent shall not denigrate the applicant in OP’s presence or speak about her in derogatory ways.

(5) The respondent shall seek and follow the advice of Dr. Collins for explaining his absence since December 2013, should Dr. Collins decide that an explanation is required.

[105] The respondent seeks access to OP on Fridays from 11 a.m. or at noon “when junior kindergarten is finished for the day” to Sunday afternoon at 3 p.m. on alternating weekends commencing immediately.

[106] The respondent’s request does not deal with summer pick up and does not address this fall. OP is starting Grade 1 in September and he will be in school for a full day.

[107] The respondent proposes that drop off be at his mother’s home or at the applicant’s brother’s home. In my view, the respondent’s mother is not a good option. She has already started to keep a dairy of complaints about the applicant and a copy was attached to the respondent’s affidavit. Using the respondent’s mother home as a drop off location will invite further conflict. While the applicant’s brother offered to have his home used as a drop off point last Christmas, I have no evidence that he is willing to do so on an ongoing basis.

[108] During the remainder of the summer, the respondent shall pick up OP at daycare at noon on Friday and return OP to the applicant’s home on Sunday at 3 p.m. If the daycare has an outing or special event planned for the children on a Friday, the respondent’s pick up time must be moved so that OP does not miss the outing or special event. The applicant shall notify the respondent by email if such a change is required and identify the later pick up time.

[109] On Sunday the respondent returns OP to the applicant at 3:00 p.m. The drop off should be at the applicant’s home in Leaside. This is what two responsible cooperating parents would do. It is open to the parties to act as two responsible cooperating parents. If this cannot be agreed to in writing, then the drop off will be in a public location as follows. The parents shall meet on Sundays at 3 p.m. at the McDonalds at Eglinton and Bayview Avenue in Toronto. The father shall return OP to the applicant at this public location.

[110] When school starts in September, the respondent shall pick OP up at daycare after school. Assuming school ends at 3:30 pm then pick up at daycare will be at 4 p.m. The parties did not provide the court with details of when the school day ends this fall.

[111] It is assumed that the above times are workable unless the court is advised otherwise. The court does not want OP left alone at school waiting for the respondent in the event he is late. This is why pick up will be at the Bizzy Beez daycare.

[112] Going forward the parties must establish an agreed upon way to communicate regarding OP. The respondent has never responded to the obvious problems with his demand that the applicant never contact him except through counsel. The time has come to find a safe way to communicate and to respect each other.

[113] The parties shall use text and/or email communication to deal with urgent matters relating to OP. They shall keep a copy of all text and email communications. The parties are strongly encouraged to consider using family wizard for non-urgent communications about OP. The website is: http://www.ourfamilywizard.com/ofw/

4. A Litigation Plan

[114] During the hearing of these motions, the court issued an order requesting that the OCL conduct a custody and access investigation pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43. Counsel shall deliver a copy of these reasons to the OCL.

[115] Assuming the OCL accepts this request, the parties shall cooperate with the investigation.

[116] Upon completion of the OCL report, the parties shall attend a settlement conference. A settlement conference is fixed for January 14, 2015. It is expected that the OCL report will be available by then.

[117] The parties shall complete the Trial Scheduling Endorsement Form and submit it to the court for the settlement conference with their conference briefs. If they cannot settle all disputes at this conference they must be prepared to fix a trial date.

conclusion

[118] In summary for the reasons set out above, I make the following orders:

(1) The primary residence for OP born in […] 2008 shall remain with his mother, the applicant, pending further order of this court.

(2) OP shall continue to attend Northlea Public School, pending further order of this court.

(3) The parties shall cooperate and immediately complete the OCL intake forms for the requested custody and access investigation pursuant to s. 112 of the Courts of Justice Act.

(4) OP shall receive counselling from Dr. Collins and the parents shall equally share the cost.

(5) The parties shall participate in OP’s counselling as requested by Dr. Collins.

(6) If requested by Dr. Collins, SP shall be encouraged by the respondent to participate in OP’s counselling.

(7) OP’s counselling shall proceed as soon as Dr. Collins is available.

(8) The parties shall forthwith provide Dr. Collins with the money retainer he requires.

(9) The parties shall cooperate with Dr. Collins in his counselling of OP and attend at his office as requested for counselling sessions. Cooperation shall include signing any agreement that Dr. Collins requires in order to start OP’s counselling.

(10) If the respondent refuses to cooperate with the counselling in any way, the applicant has the authority to proceed without his consent or participation.

(11) The applicant is authorized to arrange any of the following for OP: any educational testing, educational assessment, psycho-educational assessment or any other steps related to educational testing so long as such tests and assessments are recommended by OP’s teacher, doctor or other educational or health care provider. The applicant may do any of the above without the consent of the respondent. The applicant shall keep the respondent informed regarding any tests or assessments that are arranged and the results of same.

(12) Neither party shall denigrate the other or make disparaging comments about the other parent in the presence of the children.

(13) The parties shall communicate by text and/or email to deal with urgent or necessary matters relating to OP. They shall keep a copy of all text and email communications. They parties are strongly encouraged to consider using family wizard for non-urgent communications about OP. The website is: http://www.ourfamilywizard.com/ofw/

(14) The respondent shall have access to OP on alternating weekends. The first weekend will be Friday, August 8, 2014 and will alternate thereafter. If the parties wish to choose another weekend to commence access they may do so provided that there is an agreement that is confirmed by email before July 31, 2014.

(15) During the remainder of the summer, the respondent shall pick up OP at daycare at noon on Friday and return OP to the applicant on Sunday at 3 p.m. If the daycare has an outing or special event planned for the children on a Friday this summer, the respondent’s pick up time must be changed so that OP does not miss the outing. The applicant shall notify the respondent of any required change by email.

(16) The respondent shall return OP to the applicant on Sunday at 3 p.m. The drop off shall be at the applicant’s home in Leaside if this is agreed to by email one week before access commences. If this cannot be agreed to, then the drop off shall be in a public location as follows. The parents shall meet on Sundays at 3 p.m. at the McDonalds at Eglinton and Bayview Avenue in Toronto. The father shall return OP to the applicant at this public location.

(17) When school starts in September, the respondent shall pick OP up at daycare after school. Assuming school ends at 3:30 p.m. then pick at daycare will be at 4 p.m.

(18) If the parties cannot agree on the costs of these motions, they shall exchange brief written submissions and deliver them to the court no later than August 15, 2014.

(19) A settlement conference is fixed for January 14, 2015. The parties shall complete the Trial Scheduling Endorsement Form and submit it to the court for the settlement conference with their conference briefs. If they cannot settle all disputes at this conference they must be prepared to fix a trial date.

C. Horkins J.

Date: July 28, 2014