SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-12-547
DATE: 20140904
RE: GEOFFREY STONE, Applicant
AND
LAURI WILLIAMS, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Jane Thompson, for the Applicant
Rodolphe A. Vanier, for the Respondent
HEARD: August 28, 2014
ENDORSEMENT
[1] The Applicant, Geoffrey Stone, (“Stone”) brings this motion for the primary purpose of obtaining an order for an update of the court ordered s. 30 Custody and Access Assessment completed by Ron Stewart, MSW, RSW.
[2] Stone also sought a temporary joint custody order which order I am not prepared to grant at this time. The Applicant sought further relief on issues of joint decision-making which issues were largely resolved on consent. Apart from the updated Custody and Access Assessment, two other matters required a decision by this Court. Both parties agree that Athan would benefit from counselling and therapy at this time. The Respondent, Lauri Williams, had already commenced counselling with a counsellor of her own choosing. I have ordered that Athan attend counselling and therapy with a mutually agreed upon mental health specialist or one that is recommended by Mr. Stewart.
[3] Given the problems that have occurred with respect to transition as outlined below, I have agreed that Athan’s time with his father should commence on Friday afternoons after daycare/school until Sunday evening at 7 PM. Pick-ups and drop-offs at the daycare centre have been much less stressful for Athan and this is consistent with the recommendations in Mr. Stewart’s report.
Background
[4] On March 12, 2014, the parties were able to negotiate a final order concerning their parenting time with their four-year-old son, Athan Williams Stone. There is no actual custody order. Pursuant to the terms of that order, Athan is to reside with the Applicant father every Wednesday overnight beginning from after daycare/school, ending Thursday morning with drop off at daycare/school. Athan is to also reside with his father every other weekend from Saturday morning at 10 AM until Monday morning drop-off at daycare/school. Justice Kershman’s order further provided for future changes in access.
[5] The parties were involved in a relationship for several years and they lived together for several months, off and on. Their son was born on January 28, 2010. When Athan was born, all the parties were cohabiting but their relationship broke down completely three months later. From that point on, the parties have been unable to agree on the amount of time that the father should be spending with Athan.
[6] In January 2013, the parties consented to an order for a Custody and Access Assessment pursuant to s. 30 of the Children’s Law Reform Act. The Applicant agreed to pay for the initial upfront costs of this assessment, on a without prejudice basis. The assessment was done by Ron Stewart MSW, RSW, an experienced custody and access assessor. The results of his assessment were released on November 7, 2013. Mr. Stewart recommended that the parties have joint custody of Athan and provided for three different parenting time schedules based on three different periods of Athan’s life. These would ultimately result in a 50-50 parenting time schedule by the time Athan was to begin grade three of Elementary School.
[7] Lauri questioned the recommendations by Mr. Stewart; consequently, two settlement conferences took place. The first resulted in a negotiated regular parenting time schedule that was made into an interim order of Justice Kershman dated January 31, 2014. The second conference resulted in the final order of March 12, 2014.
[8] According to the Applicant, Lauri continues to resist his efforts to spend time with his son. Both parties have observed serious adverse effects on Athan. While the Applicant clearly blames the Respondent’s conduct, the Respondent indicates that she has no idea as to the cause of the deterioration in Athan’s behaviour. She suggests that it could be the increase in access.
[9] In the affidavits filed before the courts, the Applicant has set out what he describes as alienating behaviour on the part of the Respondent. He has broken this down into two parts, Lauri’s behaviour during Athan’s transition between the parties’ homes and Lauri’s behaviour while Athan is in her care. Examples of the behaviour occurring during transition include:
• Lauri doing nothing to assist with Athan’s transitions to Geoff’s home;
• Lauri, when asked by Athan if she supports the transition, responding with:
nothing;
with “I don’t know what to tell you” ( to Athan)
responding with a shake of her head and indicating that no, she does not;
• Lauri telling Athan that Geoff will get upset with Athan if he does not go with him;
• Lauri physically clinging to Athan during the drop off exchanges and forcing Geoff to pry Athan out of her arms;
• Lauri allowing Athan to wet his pants in her vehicle rather than encouraging him to go inside with his father to use the bathroom.
[10] In her responding materials, Lauri denies deliberately trying to interfere with Athan’s time with Geoff; but she fails to address some of the most troubling examples given by Geoff in his evidence. Lauri maintains that she has “no idea” why Athan is having trouble transitioning, and cites her “Getting Athan up and dressed” and her willingness to drive him to Geoff’s home as examples of her efforts to facilitate access.
[11] The Applicant has provided further examples of Lauri’s behaviour while Athan is in her care. This evidence comes from things Athan has allegedly told his father such “me and mom went to a doctor today to talk about you. We all decided I shouldn’t have sleepovers anymore”. There are disturbing allegations that Lauri is involving Athan in the litigation process.
[12] Lauri has made allegations by way of a letter from her counsel that Athan has been suffering from physical and emotional distress due to his visits with Geoff. This includes an upset stomach and bowel control issues that result in Athan soiling his pants. Geoff says that these incidents have never taken place while Athan was in his care.
In Ron Stewart’s initial assessment, he noted the following:
a. Lauri’s concerns regarding Geoff’s parenting were without base or credibility;
b. Lauri had a potential to increase the level of conflict between her and Geoff through baseless accusations;
c. Lauri’s had difficulty dealing with her own sense of loss concerning the fact that Geoff ended the relationship or the fact that Athan deserves to spend time with his father;
d. Lauri’s did not properly understand that transitioning between homes for young children will usually be difficult at first and that it requires constructive, cooperative behaviour on the part of both parents.
[13] According to the Applicant, Lauri’s behaviour since the release of Mr. Stewart’s report demonstrates that these predictions have come true and that her lack of understanding concerning the facilitation of Athan’s relationship with his father and its vital importance to Athan’s well-being persists and has in fact worsened since the date of Mr. Stewart’s initial observations.
[14] The issues of custody of Athan on a final basis and Athan’s holiday schedule remain unresolved. A trial date has not been set and will likely not take place until the spring of 2015. It is clear that Athan is experiencing difficulty during transition from his mother’s care to his father’s home and the Court requires an updated assessment to understand the cause of these difficulties. Is it the Respondent’s behaviour as alleged? Are the actions of the Applicant involved? Has the increase in access been part of the problem? Trading allegations between the parties is not the answer.
The Law
[15] In Perrier v. Perrier 1996 CarswellOnt 2318, the court ordered an updated assessment where the conclusions reached in the initial assessment would only provide the court with recommendations based “part of the picture”.
[16] In Perrier, the original assessment foreshadowed potential problems with access and custody as one of the parents (in that case the father) did not accept the conclusions of the assessors in their report. In ordering the update, the court held that the original assessors were “in the best position to look again at the circumstances of those involved and to assist the trial judge with an appraisal of the changes, if any, that had taken place on all sides and where the best interests of the children will be assured”.
[17] In this case, the parties do not trust each other to act in Athan’s best interests and this mistrust has increased since the release of Mr. Stewart’s initial report. Geoff believes that Lauri, at best, refuses to make any effort to facilitate Athan’s access with him and, at worst, is engaged in a campaign of alienation and in damaging his relationship with his four-year-old son. Lauri has expressed a complete lack of knowledge as to the source of Athan’s behaviour but implies that if there is someone to blame, it is likely Geoff.
[18] If Athan is truly manifesting behaviour that might be associated with stress caused by the conflict between his parents, an updated assessment is the most appropriate response to these issues as it will help the Court get to the heart of what is causing Athan’s distress.
[19] I have some reservations about ordering an updated report that will take place within a year of the initial report but this should not preclude an update where the circumstance warrant it. The determinative factor is whether the dynamics of the parties’ interaction with the child and each other have changed in a significant way since the initial assessment. I am satisfied that this is what has happened in this case. Indeed, both parties and their materials appear to acknowledge this.
[20] Counsel for the Applicant has cited three decisions where updated assessments were ordered less than a year after the date of an original assessment.[^1] I am satisfied that this is necessary in this case, and an updated assessment by Ron Stewart is ordered. I am advised that he is able to complete this by the end of September. At this point in time, I have no information with respect to the updated costs of this assessment but these are expected to be less than the original cost. Having regard to the fact that the Applicant paid for the full costs of the original assessment (on a without prejudice basis), I direct that the costs of this updated assessment be shared without prejudice to either party claim the full costs of the assessments at a later date.
Mr. Justice Robert N. Beaudoin
Date: September 4, 2014
COURT FILE NO.: FC-12-547
DATE: 20140904
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Geoffrey Stone, Applicant
AND
Lauri Williams, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Jane Thompson, for the Applicant
Rodolphe A. Vanier, for the Respondent
ENDORSEMENT
Beaudoin J.
Released: September 4, 2014
[^1]: Walsworth v w Walsworth, 2000 CarswellOnt 2796; Harkness v. LeBlanc 2006 CarswellOnt 4700 and F. (A.M.) v. W. (J.R.) 211CarswellOnt. 5622.