Sheldrick v. Bates, 2015 ONSC 2337

Sheldrick v. Bates, 2015 ONSC 2337

COURT FILE NO.: FC-11-1017-1

DATE: 20150213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kim Sheldrick, Applicant

AND

Glen Bates, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Ron Loder, Counsel, for the Applicant

Zachary Gaulin, Counsel, for the Respondent

HEARD: February 13, 2015

ENDORSEMENT

1This is a motion to change a final order made on consent on September 20, 2011 allowing primary residence of the children to the mother, and alternating weekend access to the father. The motion is brought by the mother, Ms. Sheldrick, to ask the court to terminate or suspend the father’s access, and to restrict it to times when the children choose to go to see him. The father asks the court to dismiss the motion, saying there has not been a material change in circumstances since the final order was made. Alternative he has suggested the court may wish to order some form of investigation into the issue of parental alienation which he believes is at play.

2The motion was scheduled for today on an urgent basis prior to case conference. On January 22, 2015 Master MacLeod ordered the release and production of hospital, medical, police and CAS records, set a timetable for the exchange of affidavits and factums, and on a temporary basis and without prejudice to the rights of the father, ordered that he not exercise any access to the children pending the return of this motion except in accordance with the wishes of the children.

3The father has not seen his children since December 28, 2014. Nor has he been able to speak to them by telephone.

Introduction

4The parents were together for 15 years, separated in January 2009, and divorced in October, 2011. They have two sons. Michael is now 15 years old and Matthew is 13 years old. The father issued an application in this court in April 2011. He says the mother denied him any access to his sons from that date until a settlement was reached in September, in the form of the order the mother now seeks to vary.

5Prior to and following the settlement in 2011, the mother contacted the Ottawa Police Services and the Ottawa Children’s Aid Society a number of times. No charges were laid and no interventions taken by the CAS. More recently, on January 1, 2015, events transpired such that the mother called the OPS to her house and Michael was taken by ambulance to the Children’s Hospital of Eastern Ontario. Matthew followed by car. CHEO contact the CAS. Some interviews were conducted and the CAS again decided not to open a file or intervene in the family. The January 1 incident precipitated this motion to change.

6In summary form, it appears that Michael and Matthew argued. Michael became enraged, ran upstairs and locked himself in the bathroom, and would not come out. He punched his fist into the wall. It also appears that he had done this once before. The mother became alarmed. She called the OPS for help. When the police arrived Michael did come out of the bathroom at the officer’s request.

7The paramedic service also responded. When they arrived Michael was sitting on his bed. The paramedic’s note states that Michael has a “temper tantrum”. He seemed anxious and upset but was very cooperative. He told the paramedics he had an argument with his brother and got very upset. He said he is also very upset about having to go to his father’s house. Michael told the paramedic that he gets upset because his father does not say nice things about his Mother’s family to whom he is close. Michael also stated he had not tried to hurt himself and had not sustained any trauma. He said he felt safe at both parent’s houses. The decision was made to transport Michael to CHEO and he was described as appearing more calm and comfortable en route.

8On arrival at hospital Michael was given a mental health assessment. These notes describe issues with his father as a stressor. No symptoms of anxiety were noted. Under oppositional/conduct behavior, verbal and physical aggression were checked off, and the note added, “getting increasingly [anger].” No safety issues to self or others were noted. Under family psychiatric history, drug or alcohol use in relation to his rather was checked off. His mental status examination was all normal, good, and appropriate, except for impulse control and judgment which were noted as fair.

9The diagnosis was situational anxiety. No medications were prescribed. A referral was made to the CAS and to the Youth Services Bureau for counselling. Michael was also advised to exercise to deal with anger. The mother also took Michael to the family doctor on January 5. His note says “? anxiety, ? problem with father, advised legal advice and counselling.” No medications were prescribed. Michael was asked to return in 4 to5 weeks. I am advised he has not yet been back, but his mother is planning to take him in soon.

10Matthew had also gone to CHEO by car with his grandparents. He told the crisis worker he did not want to visit his father anymore. He was described as under stress for issues with parents, he had guilt feelings and sadness, and excessive worrying. The description was given of “situational anxiety when seeing father.” Drug and alcohol abuse pertaining to his father was noted. The recommendation for Matthew was family counselling.

11Neither boy was admitted.

12Michael subsequently stated he found the trip to hospital to have been a waste of time. He said he was there for 5 hours and spoke to someone for 5 minutes.

13The family was referred to the CAS by CHEO. The CAS note of the telephone intake states on information from CHEO that the mother reported the boys do not want to visit their father but there is a court order saying they must; this was the cause of Michael’s outburst because he does not want to go but his mother tells him she will be arrested if she does not obey the court order. The after hour’s worker called the mother who explained that during the last access visit the father had been drinking, and had been drunk when he drove the boys home. The mother reported that Michael was very angry at his father, and said this has been escalating for the past year or so.

14On January 7, the CAS worker attended the mother’s home and interviewed each child separately. Michael advised he did not want to go to see his father anymore. He gave two primary reasons. First, he has no friends at his Dad’s and gets bored there because they don’t really do anything. Second, his Dad drinks and Michael doesn’t like that. Michael was unable to say how much his father drinks. He did say he was not afraid of anyone nor did he report any physical punishment in either household.

15Matthew told the social worker he likes to see his Dad, but doesn’t want to go every second weekend. His reasons were he misses out on events at home; his Dad doesn’t plan anything for when they are there. He also said his Dad drinks if his aunt comes over. They have two beers each. He said his Dad does not act differently when drinking and does not drive intoxicated.

16Feedback about the children’s concerns was provided to both parents. The CAS closed its file on February 9, stating no protection concerns were identified and it would not be intervening in the access schedule.

Historical Considerations

17The mother has contacted the CAS several times. In March 2011 she called to say the father had been emotionally abusive to the children and they no longer wanted to see him. When the CAS worker attended at her home, she was presented with a lengthy typed list prepared by then 11 year old Michael outlining his concerns about his father. Michael told the worker his mother had told him to make this list. After speaking with both parents the worker cautioned them both not to involve the children in adult disputes especially in relation to the custody and access issues. Both were advised to take the Parenting After Separation course offered at Family Services Ottawa. (Neither parent followed this advice).

18As it turns out the CAS worker was prescient when she wrote: “Although there are concerns that the children are being impacted by the negative feelings between the parents and this may be starting to impact on them emotionally, there are not sufficient grounds to verify risk of serious anxiety, depression withdrawal etc. at this time. However, should the parents not take steps to change their interactions with one another, there is a risk that this could escalate and result in harm to the children.”

19It was also noted in the course of this brief investigation that the children told the CAS worker that their mother told them that the mediator had called them liars. The mother denied having said this.

20The mother contacted the CAS again in October 2011. She complained that the father had consumed two alcoholic drinks during the children’s most recent visit with him, and this was upsetting the children because he was a recovering alcoholic. The boys were interviewed privately at their mother’s home. They reported their father had 2 drinks at their grandparents’ home at Thanksgiving. They said this was the first time they had seen him drink alcohol in 3 or 4 years. They had never seen him intoxicated. They said they would be fine to go on the next visit if he would agree not to drink in their presence. However when their mother re-entered the room and asked them if they were comfortable with that plan, they said they were not. Michael in particular became animated shook his head and said, no, he completely disagreed with visiting his father that weekend. The worker subsequently met with the father who agreed to put it in writing, which satisfied the mother and the children.

21On this occasion the worker noted: “It should be noted that the children’s anxiety around their father’s use of alcohol seemed influenced by Kim’s anxiety around this issue. The children initially expressed minimal concern, but became anxious when their mother expressed her concerns in their presence. Worker cautioned Kim against influencing the children in this way and creating anxiety for them unnecessarily”.

22The mother was quite upset with the CAS for not stopping the father’s access on this occasion. She called the worker’s supervisor and also said she would contact her MPP about it.

23The mother again called the CAS about the father’s drinking during access in July 2012. This time, Michael said his father had one beer. Matthew had not seen his father drink but said he felt, “his father could drink or have them, but not both”. The CAS note states: “It appeared from what the boys were saying, that the mother may have coached them as Matthew stated his mother had helped him with his words around his statement to this worker. The mother was asked about coaching the boys but denied doing so.”

24The file was closed with the observation that there is no evidence to indicate that the father was an alcoholic nor has any history of abusing alcohol or any other substances.

25Against this background it is noteworthy that the complaint about alcohol or drug abuse was repeated to CHEO in January 2015.

26The OPS were called on a few occasions by the mother, but only once in relation to custody and access issues. This was on April 5, 2013. The father arrived to pick up Matthew for access and he did not want to go. The mother called the police to intervene. When Matthew came out and told his father he didn’t want to go, the father said he wouldn’t force him to come. He and his son came to an agreement that he would pick Matthew up the next morning instead.

27The record before me does not establish that the father has used the police to enforce access or threatened to do so.

School Social Worker

28Both of the children have spoken to the school social worker. Unfortunately his involvement was presaged by the mother telling him what she thought the problem was: the children did not want to visit their father, that both were anxious and worked up about having to go, and that Michael is having anger issues because of it. It would have been more helpful for the social worker to find out for himself directly from the children. However when asked, Michael said it is sometimes true he does not want to go to see his father. He gave the specific reason that sometimes his Dad speaks badly about his Mom and her family which he does not like. He said this only happens when his aunt is there. On another occasion Michael complained there wasn’t much to do at his father’s. He also said it bothers him that he has no say in the access schedule.

29Michael did report to the school social worker that someone had suggested he just call his Dad and tell him he didn’t want to go on a visit. He did this, and his father had respected that decision.

30Matthew only said he doesn’t always like to go and sometimes he hears his Dad bad mouthing his Mother, which he does not appreciate.

Conclusions

31There has been a material change in the circumstances since the September 2011 order, impacting upon the best interests of the children. It is found in the prolongation of the conflict between the parents, the extended exposure of the children to parental conflict, and the increasing implications this is having for their wellbeing. In addition both children are now of an age where they have views and preferences which they are entitled to express and which the court and the parents need to consider and take into account.

32There is a real question here as to the independence of the children’s views about their ongoing contact with their father.

33In some aspects I am satisfied their views are independent. Both children have expressed on more than one occasion and to more than one person that there are few activities at their father’s, that on weekends with him they miss out on their regularly scheduled activities which take place in their mother’s neighbourhood, and that he sometimes badmouths their mother and her relatives, apparently when their aunt is present.

34I would expect that these complaints can be readily addressed by the father. He has advised court that he will take the children back to the mother’s neighbourhood for their weekend activities. I am confident he can refrain from talking about the children’s mother and her family during times the children are with him. No doubt he can even arrange for their aunt not to visit when the children are with him if she is unable to control herself in this regard.

35The father has also demonstrated on the two occasions noted above that he can hear the children’s views about access and respect them. It seems to me that he and the children need some assistance to find a non-confrontational way to achieve this outcome that is comfortable for all of them and that does not put a wedge between them. This will become of increasing importance as time goes on.

36In some respects I have absolutely no doubt that the children’s views have been seriously influenced by the mother in a way negative to their views towards their father. Her complaints to the CAS about his drinking are one clear example. These are sufficiently detailed above that no more needs to be said, except that the mother has to stop discussing this with the children. Indeed she should tell them that there is nothing wrong if their father has a drink or two over the course of a holiday weekend.

37There are other examples of negative influence in the record. One is telling the children she will be arrested if they do not go with their father. Another is, with his knowledge, attributing Michael’s misconduct at school and home to his being forced to see his father. Another is, to the knowledge of both children, launching this motion to terminate or suspend the father’s access as a response to the January 1 episode at her home. These steps given the children a clear message that their mother believes their father is the root of all of these problems.

38Indeed, having regard to her overblown complaints of alcohol abuse, I do question whether her reaction on January 1 may also have been excessive. I note that neither CHEO nor the family doctor prescribed any medication for either child or any type of medical follow up other than to return in 4 or 5 weeks to the family doctor. And while she says Michael’s problems have been escalating over the past year or two, there is no evidence that she took him to the family doctor or contacted the school social worker or any other agency for assistance for him, until shortly before January 1, 2015.

39It is trite to say that children need to be free to love both of their parents and to develop and maintain their relationship with both parents without negative influence from the other. It is also trite to note that children do not respond well to criticism by one parent of the other. The way they respond may be to resist going to the father’s home as a method to avoid hearing criticisms of their mother. Or it may be echoing and adopting their primary parent’s negative attitude to their father, in order to be sure of her ongoing love, support and happiness, all of which is of such central importance to them.

The Order

40I decline to dispose of the motion to change on a final basis. Instead I make a temporary order as follows:

1. The parents shall forthwith enroll in the parenting after separation program at Family Services Ottawa. Counsel advise the program started last week so I ask that the FSO accept the parents as late comers into the program and assist them as best they can to catch up on the content they have missed.

2. I require written proof of attendance and course completion from both parents.

3. I direct the parents to forthwith retain Sally Bleecker for the purpose of obtaining a Voice of the Children report. The initial retainer shall be paid by the father. Each parent shall provide me with a sworn financial statement within two weeks so that I can determine their abilities to contribute to the ultimate cost of the service. However, I do not intend that they incur more than $3,000 in this regard, based on what I now know about their financial circumstances. As part of her report I ask Ms. Bleecker to comment on the issue of independence of the children’s views and to recommend any further services for the family that she views as appropriate and affordable by them.

4. The father’s access to the children is reinstated on the basis that he shall have a day visit with them next weekend, followed by an overnight visit with them the following Saturday and thereafter return to the regular alternating weekend access. He shall take the children back to the mother’s neighbourhood for their weekend activities, during all of his access periods with them, refrain from talking about the children’s mother and her family during times the children are with him, and arrange for their aunt not to visit when the children are with him until further order of this court.

5. The mother shall only advise the children of the terms of my order and that she and they shall willingly abide by it. She shall encourage the children to participate with Ms. Bleecker with no further commentary from herself, except that the purpose is ot inform the judge of their views. She shall advise the children that she supports their return to regular visits with their father and that she would like them to go and enjoy themselves with him.

6. A copy of my reasons shall be provided to the course leader at FSO and to Ms. Bleecker.

7. The FSO is also asked to suggest any counselling service these parents and children might avail themselves of that are affordable to them. If they have a suggestion I would ask that it be forwarded to me and to counsel.

8. After receipt of Ms. Bleecker’s report I shall arrange to reconvene the case through the Trial Office.

J. Mackinnon J.