[1] The applicant father moves for temporary access to the parties’ 4 year old son, Ronak. The parties have agreed to a s. 30 assessment with Dr. Butkowsky regarding Ronak and I have made the necessary order. As I understand it, however, Dr. Butkowsky will not be able to begin the process for the assessment for some 10 to 12 weeks. No doubt, he will take significant time to complete the assessment. Until then, the court has little or no independent evidence to assist in determining what access arrangements are in Ronak’s best interests in the interim. There is no question there should be access. The real issue on this motion is whether it should be supervised or not.

[2] The respondent mother says both she and the father agree the father should have unsupervised access, including overnight visits. She frames the dispute as simply centring on when that should happen. She takes, and has consistently taken the position that access should be supervised at present.

[3] There have been two access orders in this case thus far. First, Herman J made an order for access over Christmas. This included gradually increasing times for Ronak to spend with his father, culminating in an overnight visit on January 4. Mother took the position the access should be supervised. Herman J rejected her position. She found: “In my opinion, the mother’s evidence is insufficient to establish safety concerns when the child is in his father’s care.”[1] She also rejected the mother’s suggestion that father was a flight risk. She did, however, order that father not consume alcohol during access visits, and deposit his passport with his counsel. Father did not object to these terms.

[4] The matter came on before Horkins J on January 28, 2014. That date marked the original return date of father’s motion for temporary access. Since mother had recently changed counsel, the motion was adjourned to today’s date, with an ambitious schedule for delivering materials. Horkins J did, however, deal with access in the interim. Again, mother requested supervised access. Horkins J rejected this argument. Her order provided for father to have access to Ronak after school on January 30 and February 4, and overnight February 1 to 2, all unsupervised. She noted that although the CAS had opened a file in late 2013, the file was closed. The society had no safety concerns with Ronak being in his father’s care. She was not convinced that supervision was required.

[5] Even though the court has made these orders, the parties have not been able to agree on temporary access arrangements going forward while the assessment takes place. Mother continues to take the position that access should be supervised.

[6] My task is to craft an appropriate temporary access arrangement that is in Ronak’s best interests. Both parties describe difficulties with Ronak’s behaviour around pick up at mother’s home. Mother attributes these difficulties to the “trauma” Ronak is suffering around access. She essentially suggests it is because access is unsupervised. Father swears that once Ronak is with him, he settles down nicely and they have a marvellous time.

[7] I have no independent credible evidence to support either party’s position. Mother relies on what she calls an “expert report” from Ronak’s paediatrician. Dr. Flanders. Mother first provided a letter from Dr. Flanders dated January 28. In it, the doctor reports what mother has told him about the visits. He says mother described Ronak as “being ever-increasingly physically aggressive and angry with her. Mother expressed concern to me that the access visits were significantly traumatizing for Ronak”.

[8] Dr. Flanders goes on to say “I appreciate the subjective nature of mother’s account. I have never had the opportunity to meet father nor have I heard his side of the story.”

[9] Dr. Flanders reports that he contacted Ronak’s teacher, and learned from her that Ronak had missed school or was late over the previous 3 weeks. The teacher apparently told Dr. Flanders Ronak appeared tired at times. She expressed concern to him about an incident where Ronak threw a chunk of ice at a classmate. Dr. Flanders also reported that he observed Ronak being quite tired.

[10] Dr. Flanders then concludes “there is a possibility that something fairly traumatic happened to Ronak over this past holiday period. Given that the access visits took place during this time period it is possible that it was the visits (or something that happened during the visits) that traumatized Ronak.

[11] Dr. Flanders goes on to make recommendations, including changing access to supervised visits and obtaining a formal psychological assessment.

[12] Dr. Flanders’ initial letter was not in the form of an expert report. Mother has now produced a second letter from Dr. Flanders. It is dated February 3, 2014. It is identical to the first letter he produced, except that it also sets outs his qualifications includes an executed Form 20.1, that is, an Acknowledgement of Expert’s Duty.

[13] Mother relies on Dr. Flanders’ letter as an expert report. I have difficulty in accepting it. First, Dr. Flanders does not provide any real opinion. He says:

Given the information above, I can say there is a possibility that something fairly traumatic happened to Ronak over this past holiday period. Given that the access visits took place during this time period, it is possible that it was the visits (or something that happened during the visits) that traumatized Ronak. And given this possibility (especially in light of the information obtained from Ronak’s teacher), in the interest of preventing further harm, I would caution against continuing with unsupervised access until we can get a better understanding of whether Ronak’s visits with his father were, indeed, difficult, upsetting or outright traumatic for him

[14] It seems to me Dr. Flanders’ conclusion, such as it is, it based on limited and incomplete information. Dr. Flanders recognizes that mother’s account is “subjective”. He says he has “never had the opportunity to meet father” nor has he “heard his side of the story”. It seems he did not bother to try to contact father. I am left to wonder what Dr. Flanders would make of father’s reports concerning Ronak’s behavior and mood once he leaves mother’s house. I am left to wonder whether Dr. Flanders would change his view of the “possible” cause of the so-called trauma.

[15] Dr. Flanders seems to accept that Ronak has been “traumatized”, although he seems to soften that word somewhat when he says the visits might have been difficult or upsetting. A difficult or upsetting event in a child’s life is quite different than something that causes trauma to a child. Dr. Flanders seems to use the term “trauma” indiscriminately. That is unhelpful.

[16] What Dr. Flanders does not seem to consider is whether it is “possible” that something other than the visits might have “traumatized” Ronak over the holiday period. He does not seem to consider that it might be something else that occurred outside of the visits that has upset Ronak. I note that mother says at paragraph 21 of her affidavit sworn February 4, 2014 : “I have tried to keep Ronak out of our conflict and have always told Ronak that his father loves him regardless of how Anik’s behaviour has negatively affected me or Ronak.” I wonder what Dr. Flanders would make of mother discussing with a 4 year old how his father’s behavior has “negatively affected” her.

[17] I cannot see Dr. Flanders’ letter as balanced or helpful. I give it no weight.

[18] I have no idea where the truth lies. Mother attacks father’s credibility in his affidavit. The affidavits are so diametrically opposed to one another the parties might as well be living on different planets. Neither affidavit has been tested by cross-examination. They should be.

[19] Accordingly an order will issue permitting questioning (in the nature of cross-examination on the affidavits delivered in relation to this motion). It is to be completed within 30 days. This motion may be returned after questioning if warranted, although I strongly discourage the parties from doing so.

[20] I now turn to the fundamental issue of access in the interim.

[21] I am not persuaded this is a case for supervision. There is no real evidence of any safety issues. Father undertakes not to consume alcohol during access. His passport is with his lawyers, thus negating any “flight risk”. The real problem, as I see it, is conflict between the parents, that seems to be exacerbated by the fairly negative view the mother has of her inlaws as well as of her husband. I would encourage the inlaws to withdraw from the fray.

[22] Mother relies heavily on her own notes of difficulties with Ronak since father has started to have access. She reports Ronak telling her he does not want to go with his father. She says he does not like the father. She reports Ronak screams and hides when father comes to pick him up. She seems to think supervision will end these problems. I doubt it.

[23] Father confirms difficulties picking up Ronak. He, too, describes Ronak locking himself in his bedroom and appearing anxious, and throwing shoes. Father reports, however, that once Ronak comes with him, Ronak settles down and has a good time, and is relaxed and happy during the visits.

[24] But father also reports that on February 4 when he picked up Ronak from school, there were no transition difficulties. He says Ronak was happy to see him, hugged him, and was excited for the visit.

[25] Father says that when he picked up Ronak from school he spoke to the teacher, Ms. Tyl, who advised Ronak had been late for school about 8 times since the beginning of January. I have no idea why this would be the case, if in fact it is. Father also confirms Ms. Tyl told him about Ronak’s throwing a piece of snow or ice at another child. Father’s account of what he was told is much less alarming than what Dr. Flanders reports Ms. Tyl told him. This difference, of course, points out the significant frailties of hearsay evidence. Since I have no direct affidavit evidence from Ms. Tyl, I cannot attach any weight to what she may have told either the father or Dr. Flanders.

[26] I agree with my colleagues there is no need for supervision in this case. What is critical, however, is to reduce the opportunities for the parents to interact with one another. In my view, it is far better for father to pick up or return Ronak to school whenever this is possible.

[27] Accordingly, on a temporary basis, pending the s.30 assessment or further order, father will have access to Ronak as follows, and subject to the following terms:

a) Every Tuesday and Thursday from after school until 7:30 p.m. Father will pick Ronak up from school, and return him to his mother’s home.

b) Commencing February 14, 2014 and on alternate weekends after, from Friday at 3:15 from school, until Saturday at 7:00 p.m., to mother’s home;

c) Commencing April 11, 2014, on alternate weekends from Friday at 3:15 from school, until Sunday at 5:00 p.m., to mother’s home.

d) Overnight access will take place at the father’s parents’ home, where he resides;

e) To the extent possible,[2] father will not involve his parents in returning Ronak to mother’s home;

f) Father will not consume alcohol while Ronak is in his care.

g) Mother will retain Ronak’s passport.

h) Father’s counsel will retain his passport, pending further order or the written agreement of the parties. If the father requires his passport for business travel, he will first seek mother’s written consent, which will not be unreasonably withheld. If consent is not forthcoming, father may apply to the court for an order permitting his counsel to provide him with his passport for the purpose of specific travel. If an order is granted, it will require father to return the passport to his counsel, subject to the continuation of these terms.

i) The parties will not communicate with one another when father returns Ronak to mother’s home, except as necessary in relation to Ronak’s care.

[28] If the parties are unable to agree on the issue of costs of the attendance before me, and the attendance before Horkins J on January 28, 2014, they may make brief written submissions to me. Submissions are to be no longer than 3 pages in length, double spaced. They will include a bill of costs and particulars of each lawyer’s year of call and actual billing rate to his or her client. Father’s submissions are to be delivered within 14 days of the release of these reasons, with mother’s to follow within 14 days of receiving father’s submissions.

[29] I encourage the parties to agree on the costs disposition of these court attendances, rather than incur the further expense involved in preparing costs submissions. This case began roughly four months ago. The continuing record is already in its 3rd volume. There have been three motions since the first case conference at the end of November, 2013. The case gives every indication of spinning entirely out of control, with costs escalating similarly. The parties are of course free to use their resources as they wish. I point out that those resources are unlikely to be unlimited. The parties have many years of financial obligation to their son; it would be a shame if he suffers financially as a result of their high conflict.

[30] I also encourage the parties, as I did in the courtroom, to immediately register for a programme such as Families in Transition, offered by Family Service Toronto, or Picking up the Pieces, offered by Jewish Family and Child Services. While there may be waiting lists for the programmes, the sooner the parents are on the list, the sooner they will be able to participate.

[31] Either of these excellent programmes (or others like them) would provide these young parents with the opportunity to gain some insight into how their behavior affects their son. They can also provide the opportunity to learn techniques of how best to parent their child as separated parents. These programmes are not directed at family therapy for this family; instead, their focus is on each parent (and Ronak) participating individually in a group of other parents or children, to deal with the significant challenges facing families post-separation.

[32] Most importantly, these programmes can provide an environment in which Ronak can also participate with other children of separated parents, and learn how he can begin to navigate the challenges he faces as the child of such highly conflicted parents.

[33] Last I must deal with a housekeeping matter. Neither the mother’s affidavit of February 4, 2014 nor the father’s affidavit of February 5 was in the continuing record. Counsel provided me with loose copies, which I have placed in an orange folder with the rest of the court file. Both affidavits must be filed in the appropriate location in the continuing record. The table of contents must be updated to properly reflect in which volume, and at what tab each can be found. Counsel must ensure that the continuing record is up to date and properly indexed at all times.

MESBUR J.

Released: 20140210

[1] Endorsement of Herman J, December 17, 2013

[2] I was advised on February 10 that father has just been charged with an “over 80” driving offence, and his driving licence has been automatically suspended for 90 days. Accordingly, he may have to enlist his parents’ help in transportation for access. His doing so will not be considered a breach of this order.

Nagpal v. Nagpal, 2014 ONSC 937

Case Summary

ONTARIO

This Proceeding

Judge

Counsel

Parties

Areas of Law