ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-FD-334485 FIS
DATE: 2014-08-19
BETWEEN:
JILL BENDER
Applicant
– and –
PAUL PICCININNI
Respondent
Herschel Fogelman and Kenneth Fishman, for the Applicant
Jacqueline Mills, for the Respondent
HEARD at Toronto: July 10 2014
C. hORKINS J.
Introduction
[1] The parties married on May 19, 1996 and separated on August 24, 2006. They have two daughters: Gabriella Piccininni (“Gaby”) and Marietta (“Mattie”) Piccininni. The children are now 17 and 15 years old and they live with their father even though the court order directs shared parenting. This is a very high conflict family.
[2] The applicant mother’s amended notice of motion dated March 20, 2013, seeks a declaration that the respondent father is in breach of Justice Goodman’s order dated August 19, 2010. The applicant also seeks an order directing that the youngest child receive counselling.
[3] In particular, the applicant alleges that father is in breach of para. 8 of the August 19, 2010 order that directs him to “make all reasonable efforts to support the residential arrangements”. The residential arrangements consist of the shared parenting set out in paras. 1-4 of the order. The relevant paragraphs of Justice Goodman’s order are set out below:
Commencing August 23, 2010, at 5:00 p.m., the children shall reside with their parents on a week on week off schedule. The children shall be with the Applicant in the week starting August 23, 2010 and will then be with the Respondent during the week of August 30, 2010, with the schedule to then alternate weekly thereafter.
On Thursday of the week that the children reside with one parent, they shall have an overnight visit with the other parent, returning to school the next morning, once school starts. If school has not yet begun for the year, then the children are to be returned to the other parent's home when the residential parent goes to work or to the child's activity if activities for the balance of the summer have already been arranged.
If either parent celebrates religious holidays between now and the date of trial and they cannot resolve the issue of shared time with the children for those holidays at the next conference before Justice Czutrin, or if the holidays precede the next conference, and they cannot agree on the time sharing for that religious holiday(s), then Justice Goodman may be spoken to by conference call for that purpose.
A conference shall take place before Justice Czutrin in order to canvass the possibility of settling the issues in this case. If the parties cannot do so, then they shall decide at that time what the next step in the case will be.
On the basis of the material filed, and most particularly in light of the upbeat tone and nature of Gabi 's emails to her mother and the clear ability of the Respondent to gain Gabi's co-operation with plans he supports, I expect the Respondent to make all reasonable efforts to support the residential arrangements I have ordered with the children.
[4] The respondent father brings a motion seeking sole custody of the children.
[5] This application began in December 2007. It has a lengthy and bitter history. Several judges have handled the file hearing motions and many case conferences. As of August 19, 2010, Goodman J. observed that numerous orders had been issued: three in 2008, three in 2009 and at least three in 2010. Case conferences continued to be held after the August 19, 2010 order.
[6] The high conflict nature of this case has been noted by the court on many occasions. In reasons dated August 23, 2010, Goodman J. told the parties that their litigation must move forward because having the case hang over their heads added to the conflict. The antagonism between the parents was impacting their ability to conduct themselves in a manner that was in the children’s best interests.
[7] Mr. Epstein, who arbitrated the issue of spousal support, described the parties’ conduct in an Arbitration award he released on September 6, 2011. In his reasons Mr. Epstein stated:
It is clear to me that these parties have been engaged in a very high conflict divorce for a long period of time. There is absolutely no trust between them and there is an extremely high level of animosity and neither party can accept any statement made by the other party without seriously questioning it.
[8] The attendances before the court have continued. Today, after more than six years of litigation, the conflict continues to rage and a trial has never been held.
[9] Despite court orders directing shared parenting, the children have lived with their father for several years. He has been making all of the parental decisions as if he had sole custody. The conflict between the parents has resulted in what appears to be irreparable harm to the relationship between the children and their mother. In these sad circumstances, mother seeks a declaration that father has not complied with Justice Goodman’s August 19, 2010 order.
[10] If the applicant succeeds on her motion, she appreciates that an order is unlikely to make any difference. She seeks the relief because she wants a court record that will show what has happened. The applicant seeks an objective accounting of the respondent’s alleged failure to follow the August 19, 2010 order and the resulting loss of her relationship with her children.
[11] Given the age of the children and the passage of time since the children last lived with their mother, mother’s counsel concedes that father’s request for sole custody is an inevitable outcome. As mother’s counsel explained, to contest custody would only be an “intellectual exercise”. While the applicant cannot consent to father’s requested custody order, she does not contest it.
The parenting orders
[12] After the parents separated they agreed to joint parenting. This changed with the order of Justice Backhouse on November 10, 2008, when the court ordered that the children would reside primarily with their mother and spend alternating weekends and Wednesday evenings with their father.
[13] Around April 2010, Gabi decided that she did not want to live with her mother any longer. She was 13 years old at the time. Gabi went to live with her father and the applicant asked the respondent to address the problem. The applicant brought a motion for an order that the respondent was in breach of Justice Backhouse’s order. The respondent moved for joint custody and shared parenting. These motions came before Goodman J. on August 19, 2010 and the order of August 19, 2010 was made.
[14] Justice Goodman’s reasons provide context for the motion before this court. At para. 7 Goodman J. described the situation after Gabi refused to live with her mother as follows:
… Ms. Bender continually asked Dr. Piccininni to address it the appropriate way -by agreement or via the court system. It was clear to Dr. Piccininni that his wife did not consent to the arrangement. An order was in place; it was up to him to change it (by agreement) or to take appropriate steps to deal with it through the court. He did not. There is nothing before me that would suggest that Dr. Piccininni did one thing at all to encourage Gabi to return to her mother's home and to live with the schedule in place under the order while the parents attempted to sort out the issue of Gabi's alleged decision.
… Dr. Piccininni still had an obligation, in light of the order of Backhouse J., to do more than he did, in my view, to restore the arrangements to those in place under the order pending discussion.
[15] Justice Goodman’s reasons review the unacceptable behaviour of both parents. In particular, the respondent unilaterally reduced the court ordered child support after Gabi came to live with him. The applicant reacted negatively and involved the children in this dispute.
[16] It is not necessary to review the specific details of the parents’ behavior. As Goodman J. stated, “Neither parent’s behaviour in this case is commendable”. However, Justice Goodman’s characterization of the respondent’s conduct is worth noting. When he unilaterally decreased child support, Justice Goodman found that he had to “have known that his wife would react in a negative manner”. Justice Goodman found that the respondent “simply did not care”.
[17] Justice Goodman ordered that the parents follow a week on week off schedule. This was what they had been trying to negotiate. As she explained in her reasons, it was “absolutely clear that at one point or another since May 2010, the parties were negotiating an equal time agreement for the children”. While problems existed between Gabi and her mother, the court was not persuaded that the relationship would prevent the week on week off arrangement from being “successful particularly if both parents support it and as well if Mattie is part of it.”
[18] There were doubts about whether Gabi would agree to this schedule. Justice Goodman addressed these doubts at para. 15 of her reasons:
After having heard [father’s counsel’s] concern that Gabi may not agree to it…I have some concern about the father’s good faith in supporting a change from what he says, more or less, is now the status quo of Gabi living with him.
…his notice of motion and affidavit do not clearly indicate that he would be content with a change from what he believes is the new status quo for Gabi and which he says is Gabi’s choice.
Did the respondent make reasonable efforts to support the residential ARRANGEMENTS?
[19] The applicant argues that the respondent continually failed to exercise all reasonable efforts to support the residential arrangements pursuant to the court order. In summary, she says that the respondent made parenting decisions without involving her and essentially allowed the girls to choose where they would live without attempting to abide by the court order. The applicant also says that the report of Dr. Fidler offers further evidence of the respondent’s failure to make reasonable efforts. While the respondent consented to court ordered family treatment and therapy, the applicant says that he did not commit himself and the children to the process.
[20] The respondent argues that he has not “wilfully disobeyed the court order”. He says that he has “tried to implement it, but [he] cannot force the children to see [their mother].
[21] The question is not whether the respondent wilfully disobeyed the court order. This court must decide if he exercised all reasonable efforts to support the residential arrangements in Justice Goodman’s order.
[22] The respondent is extremely critical of the applicant’s behavior. In para. 84 of his September 27, 2011 affidavit, he references numerous examples to explain how her own conduct alienated her from the children. The applicant acknowledges much of this conduct. The respondent implies that the applicant’s conduct has made it impossible for him to support the court order.
[23] What is the relevance of the applicant’s conduct on this motion? According to the respondent, this conduct has been ongoing since separation.
[24] I accept that the applicant’s actions have damaged her relationship with the children. She does not seem to dispute this fact. However, this does not mean that the respondent was allowed to do something less than exercise all reasonable efforts to support the residential arrangements in Justice Goodman’s order. This motion is not a debate about whether there was any hope of restoring the residential arrangements in the court order if the respondent exercised all reasonable efforts. He was required to comply with the order regardless of the odds of a good outcome.
[25] The evidence before this court is voluminous. There are multiple competing affidavits. The applicant swore two affidavits and filed three affidavits from other deponents. The respondent filed four affidavits. These affidavits span a time frame of activity that chronicles their lengthy and bitter process of litigation that started in 2008. It is beyond the scope of a motion to assess this evidence and find facts.
[26] It is important to note what this motion is not about. It is not about deciding why this family failed to function and why the children are estranged from their mother. It is quite clear that both parents are to blame.
[27] The motion is not about whether therapy with Dr. Fidler was unlikely to succeed regardless of the respondent’s level of effort and commitment. The respondent states that Dr. Fidler “stressed at the outset that the therapy may not work”. That may be so but both parents agreed to participate and a consent order was issued. The parents signed Dr. Fidler’s “Family Treatment and Intervention Agreement”. This agreement lists the “goals of the treatment/intervention”. One of the goals is “to facilitate the implementation” of the “previously agreed to or court-ordered parenting time schedule” (Justice Goodman’s August 19, 2011 order).
[28] This motion is about whether the respondent complied with Justice Goodman’s order. Specifically did he make all reasonable efforts to support the residential arrangements in the order? There is some evidence that is not in dispute and this evidence supports my conclusion that the respondent did not “make all reasonable efforts to support the residential arrangements” [emphasis added]. It is not enough for the respondent to say that he made some reasonable efforts. He was obliged to make all reasonable efforts and there are some glaring examples of his failure to do so as set out below.
The Trip to Zambia
[29] The respondent followed Justice Goodman’s order for the first few months. In the fall of 2010, Gabi’s school contacted the parents about their daughter’s behaviour. The problems were serious enough to require Gabi to change schools at the end of October 2010. Both parents appreciated the seriousness of the situation.
[30] Shortly after Gabi moved to a new school, the respondent had the opportunity to travel to Zambia and he wanted to take Gabi. The evidence about how the applicant learned about this trip is conflicting. However, there is no dispute that the respondent did not discuss it with the applicant first before telling Gabi about the trip.
[31] According to the respondent, he delivered a letter to the applicant advising her of the trip details. He says that the children watched their mother open the letter, that they talked about it and that the applicant said she was 99% sure that she was in agreement with the trip.
[32] The applicant says that Gabi told her that the respondent was taking her on a trip to Zambia. The applicant also learned that the respondent had already taken Gabi to the doctor for the necessary vaccinations and medications needed for the Zambia trip.
[33] It was the respondent’s idea to take Gabi on the Zambia trip. He should have discussed the proposal with the applicant before telling Gabi. It is clear on the evidence that the respondent did not do so. Since Gabi had just changed schools, he ought to have appreciated that it might not be advisable to allow her to take time off school. His failure to discuss the trip with the applicant before telling Gabi was a failure on his part to co-parent. The applicant had legitimate concerns about allowing Gabi to take time off school having just transferred to a new school. Whether or not Gabi should go on the trip should have been jointly decided by the parents before the possibility of the trip was ever raised with their daughter.
[34] The applicant was concerned about the trip to Zambia and had to bring a motion to prevent the respondent from taking Gabi on the trip. On November 30, 2010, Justice Mesbur granted the mother’s motion. In reasons the court explained that the trip was not in Gabi’s best interests having just started a new school. In addition, Justice Mesbur expressed concern with the failure of the “parents to consult and communicate with one another”. She was particularly concerned with father’s decision to involve Gabi in the decision making process rather than engaging mother first.
[35] The respondent acted as if he had sole custody when he did not. He wrongfully excluded the applicant from the decision making process. The respondent had to know that the applicant would have serious concerns about the Zambia trip. His actions drove a further wedge between mother and daughter and did not support the residential arrangements in Justice Goodman’s order. After this court order, Gabi refused to see her mother.
[36] The respondent’s actions concerning the Zambia trip is a clear example of his utter failure to exercise all reasonable efforts to support the residential arrangements in the court order.
Mattie’s Decision to Live with her Father Full Time
[37] The parents continued to follow the alternating week schedule for Mattie until the summer of 2011. At the end of July, the children travelled to North Carolina with the respondent for a one week vacation. The applicant asked the respondent to confirm the departure and return dates, but he did not reply.
[38] When they returned, Mattie told her mother that she was moving to her father’s home to live. She followed through with her plan and since then has been living with her father. The applicant blames the respondent for Mattie’s decision to live with her father full time.
[39] Mattie’s decision to live with her father full time was discussed in Mr. Epstein’s Arbitration Award dated September 6, 2011. The parties had resolved their financial issues through mediation and signed a Separation Agreement in April 2011. Shortly after the agreement was signed, the applicant lost her job and a dispute arose regarding her need for spousal support. The issue was arbitrated and Mr. Epstein awarded the applicant spousal support. The spousal support issue triggered the need to review s. 7 expenses and in this context the arbitrator made the following findings at pp. 4-5 regarding Mattie’s recent decision to live with her father full time:
The father says in paragraph 15 of his Affidavit sworn August 18, 2011, as follows:
Both children are now living with me full time. Mattie was at camp for the month of July and then we went to North Carolina for a week. Upon our return, Mattie asked if she could live with me full time. I told her that she would have to discuss that with her mother. Apparently she did so and Jill had no objections. She told Mattie that she was going on vacation and that she would see her in September.
The father’s statements about Mattie’s change of residence and her coming to live with him full time is disingenuous at best. The father is well aware of the high conflict nature of the parenting dispute and is well aware of a court order setting out the residential arrangements for the children. The proper response to Mattie, if she asked whether she could live with her father full time, was to advise her that there is a court order in place that the parents and Mattie must respect until it is changed by the court. His proper response to Mattie was that she must continue to live under the status quo until there has been an opportunity for the court to deal with the matter. It was not open to the father to unilaterally allow the change in residence, then argue that the change in residence of Mattie should somehow affect the quantum of spousal support.
[40] Based on the affidavit evidence that I have reviewed, I agree with Mr. Epstien. There is no evidence that the respondent took any meaningful steps to address Mattie’s sudden decision to live with her father full time. The respondent states that Mattie wanted to live with him and she was always fighting with her mother. It was not open to the respondent to simply let this change in residence happen, even if Mattie was fighting with her mother. He made no reasonable effort to support the court ordered residential arrangements.
[41] In September 2011, Mattie was starting a new school. The parents did not work together to ease the transition. Mother sent the new school an email asking that proper support be in place for Mattie because she had experienced issues in the previous school year. Mother copied father with her email and father shared the email with Mattie. His decision to show Mattie the email is another example of his failure to support the court ordered residential arrangements. According to the evidence, Mattie became enraged.
[42] In September 2011, the applicant brought a motion seeking to hold the respondent in contempt. She took the position that the respondent was not complying with parenting schedule in Goodman J’s August 19, 2010 order. By this point in time, the children were living with their father full time.
The Order to Attend Counselling with Dr. Fidler
[43] The applicant’s contempt motion came before Goodman J. and was adjourned at the request of the respondent’s counsel due to other commitments. The motion came back before the court on September 28, 2011. Goodman J. made an order on consent that reflects the parties’ agreement to attend and cooperate in counselling with Dr. Barbara Jo Fidler. The parties signed the Family Treatment and Intervention Agreement on September 28, 2011, and the original is attached to the court’s endorsement.
[44] Paragraph 1 of the Family Treatment and Intervention Agreement states as follows:
The parents agree that the objective of this counselling is not to determine IF it is on the child(rens) best interests to have contact with one of the parents. Rather, the parents agree that it is in the children’s best interests to have meaningful relationships with both parents.
[45] The Family Treatment and Intervention Agreement sets out the goals of the treatment and intervention. The second goal listed is “to facilitate the implementation of the previously agreed to or court ordered parenting time schedule”. The key court order is Justice Goodman’s August 19, 2010 order that required the respondent to “make all reasonable efforts to support the residential arrangements”.
[46] Dr. Fidler commenced treatment in the fall of 2011. Her extensive report is dated April 9, 2012. Counselling did not assist the family in reuniting mother and her daughters. The children continue to live with their father and have minimal contact with their mother.
[47] After receipt of Dr. Fidler’s report, the applicant renewed her motion with an amended notice of motion. She withdrew the contempt issue and focused on her request for a finding that the respondent is in breach of Justice Goodman’s 2011 order. This is the motion that eventually came before this court on July 10, 2014.
[48] Dr. Fidler’s detailed report offers further evidence of the respondent’s failure to “make all reasonable efforts to support the residential arrangements”.
[49] Excerpts from Dr. Fidler’s report are set out below. These excerpts explain the difficulty that Dr. Fidler encountered in the process of her treatment. While the parents and children participated in the process, the report shows that the respondent did not make “all reasonable efforts to support the residential arrangements”. The numerous excerpts from the report support this conclusion.
[50] Dr. Fidler sets out the parents’ positions at p. 2 as follows:
Stated extremely briefly, Mother alleges the children have been alienated from her by their father. He denies this and alleges that the children’s strong wishes not to have contact with their mother are justified given her compromised parenting.
[51] The report summarizes the consent order of Justice Goodman that referred the parties to counselling. At p. 2 the report states:
The Endorsement of September 28, 2011 indicates that: (a) the children attended at court as per Her Honour’s order and she advised them about the therapy their parents had agreed to; (b) the parents “shall cooperate immediately” with the process…so that they can begin “as soon as possible. (The matter, in my view, is urgent.)”; (c) that Dr. Piccininni “shall pay for the therapy, subject to reallocation of fees by the court once the process has been completed.” The matter is returnable in no less than 7 days, except if urgent.
The Agreement further indicates that the therapy shall continue for at least 6 months, unless an extension is agreed to otherwise by the parents or by order of the court, thus indicating an end-date of March 28, 2012.
[52] Dr. Fidler confirms at pp. 2-3 that she gathered information from the following sources:
… information obtained from each parent’s intake questionnaires, telephone calls and e-mails with the parents, the children’s first term, November 2011 report cards, and the therapy sessions. There were 34 separate sessions or telephone contacts amounting to approximately 33 ¼ hours (see Appendix “A”). Additional time was spent speaking with counsel and with the parents and counsel by e-mail; these contacts are itemized in the statements previously provided to the parents and their lawyers.
[53] Problems with the process arose at the outset of the counselling. The respondent “expressed concern that he did not agree with some of the goals listed in the Agreement. Specifically, he did not agree with 3b), which states: ‘to facilitate the implementation of the previously agreed to or court-ordered parenting time schedule’ ” (p. 3). The respondent had just signed the Family Treatment and Intervention Agreement. The goals of the counselling were clearly set out in this agreement. He consented to the order requiring him to cooperate immediately in the counselling. The respondent did not have the option of amending the scope of his cooperation.
[54] Scheduling appointments with the respondent was challenging and the respondent was not committed to the process as Dr. Fidler explains (at pp. 6 to 9):
After the single intake meeting in October, Dr. Piccininni participated in individual sessions, more regularly in November, trailing off in December, with his participation in January limited to two individual telephone contacts one hour in total and one joint parent session.
The sessions, however, did not always proceed frequently enough, thus impacting the process and in all likelihood the effectiveness of the therapy to some extent. For example, there was a 2-week lapse between the first and second meetings with the children. A previously booked appointment was cancelled due to their hockey schedule. Alternative times that week were offered, but were not acceptable.
In addition, there were opportunities to see the children on non-school (no hockey either) or work days that were not taken advantage of (i.e., days during the Christmas or March school breaks, each 2 weeks). One important instance occurred over the 4-day November mid-term break. Precisely because these were non-school days, appointments were booked well in advance for both the Friday and the Monday for Dr. Piccininni and the girls (together and separately). Closer to the time, Father cancelled the Friday appointments stating that he and the girls would not be around. He chose not to respond to queries about what their plans involved, asked in an effort to perhaps be able to accommodate them so that they could attend an appointment and also do whatever it was that were going to do that day. I suggested moving the appointment from Noon to 8am or 9am that morning. Dr. Piccininni declined this and several alternatives for appointments offered for earlier that week as these conflicted with his and the girls’ schedules. The girls did attend on the Monday. They stated that they had gone outlet mall shopping on that Friday, leaving mid-morning. Dr. Piccininni later advised that the girls deserved a day off, he was concerned about the impact of therapy occurring too frequently in the context of all of the other demands on them (school and sports), and in his view, since they were being seen on the following Monday, he concluded they need not come on the Friday. Unfortunately, by cancelling the Friday, an infrequent opportunity was lost to see Dr. Piccininni as well.
Although Father did participate and facilitate the girls getting to therapy, he exhibited ambivalence and both his and the girls participation fell short of what was requested and required. The difficulties with scheduling have been noted. I fully appreciate his demanding work schedule and that he is the parent exclusively responsible for children, who have an extremely demanding school and athletics schedule. Given that Dr. Piccininni was not available during the day (with the exception of some Fridays as noted), evenings or on weekends, it left little time for his individual therapy sessions to occur.
It was made clear to Dr. Piccininni on several occasions that while he may not agree that he contributed in any significant way to the state of the girls’ relationship with their mother, he was fundamental to the resolution of these problems and without his active role with the girls and in the therapy, the objectives noted in the Agreement would not be realized. [Emphasis added]
[55] The above passage from Dr. Fidler’s report clearly demonstrates that on many occasions the respondent was not committed to the counselling. One example is particularly shocking. He allowed the girls to go on a trip to an outlet mall rather than requiring them to attend counselling. If he was “making all reasonable efforts to support the residential arrangements” in the court order he would have prioritized the counselling and not a trip to an outlet mall.
[56] During the 2011 Christmas holidays, the respondent made unilateral plans to travel with the children. As Dr. Fidler notes at p. 11, the applicant “was shocked, hurt and angry that Dr. Piccininni made unilateral plans to travel and moreover, that his proposal did not include her having any time with their daughters on either Christmas Eve or Day, even though the hockey games they were attending out west did not start until the 26th.”
[57] As the report explains, the respondent’s attempt to schedule time for the applicant and the children to see each other was an utter failure. The respondent suggested that the applicant could see the children the week before Christmas. Parental animosity and conflict escalated quickly and the children were exposed to it. It is not necessary to repeat the details in this judgment.
[58] While Dr. Fidler acknowledges that the respondent made some effort to encourage the children to see their mother over the holidays, he did not make “all reasonable efforts to support the residential arrangements”. The following excerpt at p.14 clearly explains this point:
Dr. Piccininni did encourage both girls to spend time with their mother and the extended family, including their first cousins. He chose, though, not to require the children to attend, preferring instead to get their buy-in and in doing so accede to their wishes. He advised that he was not able to convince Gabi, and consequently, she would not be attending. While he was able to convince Mattie, at least initially, there is a question as to how far he was willing to go to ensure the contact occurred. Even without Dr. Piccininni having to abandon his own personal plans, which of course was an option, the fact that none of the other logical and viable options were either considered by him or implemented raises concerns. It is entirely understandable that Dr. Piccininni deserves his own leisure time, of which he may have little given his demanding work schedule and full time childcare responsibilities. As parents though, we make sacrifices for our children all the time. Dr. Piccininni has made sacrifices for his girls when he considers it important enough to do so. However, in this very important instance, and notably in the context of the court-ordered therapy, he chose not to. Of particular concern is that he reportedly believes that he did whatever he could possibly do to make the contact happen. Based on the information he provided, he accepts no responsibility for the debacle and externalizes all responsibility onto others. [Emphasis added.]
[59] Dr. Fidler describes the respondent’s ambivalent attitude towards the court ordered therapy at p. 33:
Father reported that while it has not always been easy, he has required the children to attend therapy. Notwithstanding these efforts, based on the events that have occurred from the onset, beginning with the terms of the Agreement and order and have continued throughout the therapy as elaborated, Dr. Piccininni remains ambivalent. Unfortunately, some of his priorities and choices for what he has done and not done have mitigated against the stated objectives, objectives that he is not entirely convinced are good ones for the children. If he truly believed in the stated objectives and in the possibility that these could have been achieved in therapy, Dr. Piccininni would have taken more initiative to make the children available for therapy, at the very least, during non-school times. This would not have had to interfere with their vacations during both Christmas break to Alberta and during March Break to Club Med in Florida, as they were in town for one week during each of these periods. He believed the girls needed a break and for him this was the greater priority than efforts to resolve their relationship with their mother. Dr. Piccininni is a very organized man and is fully capable of setting priorities and juggling an extremely busy professional and home/personal schedule. His reply, “It never came up”, to the question about Mattie taking a taxi on December 23rd is noteworthy. If Mattie seeing her mother, aunt, uncle and first cousins for a Christmas dinner was a priority to Dr. Piccininni, there is no question it would have happened. He would have required Mattie to let her mother drive her the 10 minutes, suggested a cab, got a friend or relative to get her, or if all else failed, relinquished his own personal plans, but even that was not necessary. The fact Mattie did not see her mother and relatives for the Christmas get-together, and particularly in the context of court ordered therapy, raises serious concerns, including the extent to which Dr. Piccininni accepts and supports the children’s need for a good relationship with their mother and the need to work on the problems. [Emphasis added.]
[60] Tension between the applicant and Mattie escalated after Christmas. It is not necessary to review the details that are set out in Dr. Fidler’s report. Dr. Fidler tried to schedule additional counselling sessions after Christmas, but encountered significant difficulty. The applicant made repeated requests for the counselling to resume. The respondent did not communicate a willingness to schedule any further dates as explained at p. 26:
He replied … on March 8th and said “the girls and I are juggling various travel plans, chalet invites and camps (along with the usual hockey) during the ensuing two weeks”. Unfortunately, he gave no indication of his willingness to continue therapy on other dates, leaving the question as to his and the children’s participation unanswered. I replied immediately and asked for clarification on his and the girls’ availability, specifically, prior to March Break between March 5th and 8th, and after March Break during the last week of March, once again advising of the importance of booking in advance and my willingness to keep times open for them as long as possible. No reply was received.
It is understandable that parents wish to enjoy their holidays and travel. However, like the Christmas Break, particularly the first week of January when the girls were in Toronto and Father was working, the two-week March Break would have been a good opportunity to commit some concerted effort to the family therapy and to the rebuilding the children’s relationship with their mother, by gradually adding in contact outside of the therapy coupled with preparatory and follow-up sessions. It is not clear to me why time was not made available for this, while also permitting the girls some leisure time with friends, family or travel. I am now aware that the girls and their father travelled to Club Med in Florida for the second week of March Break leaving the weeks of March 5th, 12th, and 26th open for therapy sessions.
[61] Dr. Fidler found that the children’s decision to “cut off from their mother is a disproportionate reaction”. The children “idealize their father and demonize their mother” (p.32). Their attitude and behavior toward their mother is concerning. Dr. Fidler discusses this at p. 32 follows:
They have been impolite, rude … Reportedly, they have not acknowledged gifts received from their mother and relatives and have not returned calls or other efforts to contact them. Of significant concern is their apparent lack of remorse; they show no empathy where their mother is concerned.
[62] While the respondent says that he continues to encourage the children to respect their mother and restore their relationship with her, he lets them decide if and when this should happen. Dr. Fidler notes in her report at p. 32:
While he has encouraged and perhaps even cajoled the girls at times, he has not required them to have contact with their mother, in the same way he has required them to do other things that he believes are best for them and that are priorities for him as a parent. In the end, he maintains, its up to them. When a parent extends this message to their children, it communicates to them that the parent doesn’t really think having a relationship with the other parent is that important; it is not a priority. [Emphasis added.]
[63] The hope for reintegrating the applicant into the lives of the children is slim. Dr. Fidler states at p. 35:
The likelihood of a successful reintegration with Mother in the context of the children living with Father is slim in the absence of Father’s unambivalent conviction to support the therapeutic intervention.
[64] Dr. Fidler concludes that both parents have work to do:
Ms. Bender has work to do to improve her parenting and communication skills. So does Dr. Piccininni. There are no perfect parents. Each parent has provoked the other parent, knowingly or unknowingly. Both parents must be accountable for their actions and inactions. Dr. Piccininni’s pattern of avoidance serves to fuel the family dysfunction, just as Ms. Bender’s pattern of pursuing does.
[65] Finally, it is recommended at p. 39 that the children receive individual counselling:
However, if it is decided that there is nothing further to do at this time in terms of an educational, clinical or legal intervention to assist to repair the children’s relationship with their mother and realign their relationship with their father, then individual therapy for each girl is likely to assist them to address that outcome and other issues they may be having with their social and emotional adjustment more generally. The therapy, after some time, may or may not lead to a desire to work further on repairing their respective relationships with their mother in the context of the current relationship they have with their father.
[66] The relationship between the applicant and her daughters has been virtually non-existent since the summer of 2011. Counselling with Dr. Fidler did not assist. Sadly, it appears damaged beyond repair. Mother’s counsel describes the children as “completely estranged from their mother”. Aside from the very infrequent contact that has occurred, there is no active relationship between the applicant and her children.
The Separation Agreement is not a defence
[67] On April 20, 2011, the parties signed a final separation agreement. The respondent argues that as a result of this agreement Justice Goodman’s August 19, 2010 order no longer has any force or effect. Therefore it cannot be said that he has failed to comply with this order. He relies on the following sections of the Separation Agreement:
1.3 This agreement replaces all oral or written agreements made between the parties and all outstanding court orders.
7.1 This agreement is a full and final settlement of all issues (between) Paul and Jill of all rights and obligations arising out of their relationship.
8.4 On execution of this Agreement, Paul will withdraw his Answer in court proceeding in the Superior Court of Justice, being court file number 07-FD-334485 FIS and Jill will forthwith proceed to obtain a divorce judgment. Paul will pay one-half of the court fees for obtaining and processing the divorce and Jill will obtain a second original Certificate of Divorce and deliver it to Paul, through the parties respective solicitors.
8.5 The existing court proceeding in the Superior Court of Justice will otherwise be dismissed without costs. If a divorce judgment or order issues, all of the terms of this Agreement will continue.
[68] Based on the above excerpts of the Separation Agreement, the respondent states that he understood that the court proceedings were over when the Separation Agreement was signed. He states that he “assumed that [the applicant] did not want to go to trial over parenting and that she was accepting the then status quo of Gabi living with [him].” If the respondent actually believed that the Separation Agreement was the end of the entire dispute, then on his evidence his assumption only included Gabi.
[69] The Separation Agreement is not a defence to the applicant’s motion. Several points support this conclusion.
[70] In the respondent’s September 27. 2011 affidavit, he describes how the parties “were able to resolve the financial issues with the assistance of Mr. Epstein” and the resolution is set out in the Separation Agreement. This was not a settlement of the custody and parenting issues and the respondent’s affidavit evidence makes this very clear as follows:
At the time of the mediation, Gabi was and had been living with me full time since December 2010. Jill had accepted that Gabi's residence was with me did not raise it. There was no discussion of me being in contempt of court. She stated in her brief that Gabi was living with me on a full time basis. I was under the very clear impression that we would deal with the children in a different way. I had complied fully with Justice Goodman's order with respect to the week on/week off schedule until December when Gabi ran away from Jill and absolutely refused to go back.
I had expected that a trial would proceed on the parenting issues alone or that Jill would accept the status quo. Jill did not proceed with the trial and she did not raise Gabi's residence issues until this motion was brought. Gabi has now been living with me for about 10 months.
[71] The Separation Agreement deals with child and spousal support and property issues. They agreed that no child support would be paid by either party. The Separation Agreement says nothing about custody and parenting issues.
[72] The Separation Agreement states that the respondent will withdraw his Answer and this application will be dismissed. It is not clear on the evidence why the parties agreed to dismiss this proceeding since the agreement does not address custody and parenting issues and these issues based on the record have never been resolved. In any event, the Answer was not withdrawn and this proceeding was not dismissed. In fact the respondent brought a motion for sole custody.
[73] In summary, this Separation Agreement did not deal with custody and parenting issues and cannot be read to replace the order of Justice Goodman.
Misclellaneous relief
[74] The applicant seeks an order that Mattie attend individual counselling with a counsellor recommended by Dr. Fidler. It is agreed given Mattie’s age that she should only be required to attend counselling if she consents.
[75] The respondent served a motion dated November 9, 2012. He seeks various orders. At this point in the litigation, the respondent agrees that the only relief still relevant is his request for sole custody of the children.
[76] The respondent’s motion was confirmed in his form 14C Confirmation. There was some confusion as to whether it was going ahead or not. Counsel for the applicant cannot consent to a sole custody order, but she will not oppose it. Counsel recognize that this litigation needs closure. While the applicant does condone the respondent’s conduct, she did not object to the respondent’s motion being dealt with. As her counsel explained, the children live with the respondent and he makes all decisions concerning the children that are required. He assumed de facto sole custody without a court order. The applicant acknowledges that sadly nothing would be served by contesting the respondent’s request for a final custody order or requiring this motion to be scheduled for some other day.
Conclusion
[77] In summary, I find that the respondent is in breach of para. 8 of the August 19, 2010 order that directs him to “make all reasonable efforts to support the residential arrangements”.
[78] This court has the power under Family Law Rule 14(23) (c) to make any order that is appropriate when a party does not comply with a court order.
[79] I make the following orders:
(1) A declaration is issued that the respondent is in breach of paragraph 8 of the order of Justice Goodman dated August 19, 2010.
(2) The respondent is granted sole custody of the children: Gabriella Piccininni (“Gaby”) born February 9, 1997 and Marietta (“Mattie”) Piccininni born April 29, 1999
(3) Mattie will attend further counselling with a counsellor recommended by Dr. Fidler if Mattie consents to attend such counselling.
(4) If the parties cannot agree on the costs, if any, of the motions, they will exchange brief written submissions and provide them to the court by September 15, 2014.
___________________________ C. Horkins J.
Released: August 19, 2014
COURT FILE NO.: 07-FD-334485 FIS
DATE: 20140819
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JILL BENDER
Applicant
– and –
PAUL PICCININNI
Respondent
REASONS FOR JUDGMENT
C. Horkins J.
Released: August 19, 2014