ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: Janjic v. Janjic, 2015 ONSC 2880

COURT FILE NO.: 1764/10

DATE: 2015 05 11

BETWEEN:

DUSKO JANJIC
Applicant

– and –

JELENA JANJIC
Respondent

Self-represented

Self-represented
Mark N. Demeda for the Office of the Children’s Lawyer

HEARD: March 24, 25, 26, 27 & 31, April 1, 2, 7,8, 10, 2015

REASONS FOR JUDGMENT

LEMAY J.

[1] This is an unfortunate and challenging case of custody and access relating to two children, Anica Janjic (“Anica”), age eleven, and Radovan Janjic (“Radovan”), age nine. They are the children of Dusko Janjic (“Mr.Janjic”) and Jelena Janjic (“Ms. Janjic”).

[2] The parties have been separated for some considerable time, and this case was the subject of a final consent order issued by Coats J. on March 11, 2011. Mr. Janjic is the Applicant in this case, and he brought a motion to change the final Order of Coats J. on March 26, 2012.

[3] It has been some considerable time since that Motion was filed, and this case has been the subject of numerous interim Motions before this Court. In light of that fact I advised the parties at the conclusion of the trial that I would provide a decision as quickly as possible, likely within six weeks. I am doing so.

[4] At trial, the relief being sought by Mr. Janjic is as follows:

a) Mr. Janjic to have sole custody of Anica. Anica will then agree to visits with her mother, but only in public and with no overnight visits.

b) Mr. Janjic to have shared custody of Radovan, and a 50/50 split in the amount of time that Radovan spends with each parent.

c) Mr. Janjic is seeking an adjustment to the child support ordered in this case, both retroactively and going forward.

[5] Ms. Janjic’s position is that Anica’s current de facto custody with Mr. Janjic in Anica’s case should be reversed, and that she should continue to have sole custody of Radovan.

[6] I will outline the facts as I have found them, and then address each of these issues. In coming to my conclusions on these issues, I must address the manner in which the parties have conducted themselves since Coats J. issued the final Order in this matter as it informs what is in the best interests of the children. In addition, there are specific facts relating to each of the children that must be considered before custody can be determined.

[7] It is only once custody has been determined that a final determination can be made about the quantum of child support and any retroactivity issues that may arise.

[8] In reaching my conclusions, I have considered all of the oral evidence, and read all of the documents that the parties filed as exhibits. I will outline the most relevant evidence in these reasons.

Background Facts

[9] Mr. Janjic and Ms. Janjic were married on May 17, 2003. They separated on December 12, 2007. The reasons for the separation do not concern me, as they are prior to the Final Order of Coats J.

[10] There were two children of the marriage: Anica, born January 4, 2004 and Radovan, born August 25, 2005. Anica is now eleven and is in Grade 5. Radovan is now nine, and in Grade 4.

a) The Final Order of Coats J.

[11] This was a consent Order signed on March 11, 2011. It outlined, inter alia, the following terms:

a) Ms. Janjic would have day-to-day care and primary residency of the children.

b) Mr. Janjic would have access on alternating weekends, commencing on Friday after school until Monday at 9 a.m.

c) Mr. Janjic would have custody one further day every alternating week overnight. The day of the week would move from time to time.

d) There was to be consecutive time during the summer and during the school breaks, and equal sharing of statutory holidays.

e) Minor day-to-day decisions were to be made by the parent having care of the children at the time the issue arose.

f) Child support was payable to Ms. Janjic starting April 1, 2011, even in light of the custody Order.

g) There were various additional Orders relating to arrears, spousal support and s. 7 expenses.

[12] This was an Order of the Court and it was expected that all parties would adhere to that Order. A more detailed summary of this Order, along with a summary of all of the other Orders made in this matter since the Order of Coats J. is set out in Appendix A to this decision.

b) Events Since the Final Order

[13] On March 19, 2012, Mr. Janjic commenced an Application to Change the final Order. There have been a number of interim orders since that time. I want to highlight a couple of the most relevant ones.

[14] On June 6, 2013, Mr. Janjic asked Donohue J. to reduce his child support obligations on the basis that the children were with him more than 47 per cent of the time. She declined to make this Order, and she stated:

I find it most inappropriate to decide to reduce child support (for arrears and for the on-going support) based on increased custody when this is the issue for trial.

[15] On July 4, 2013 Miller J. considered whether Mr. Janjic could travel to Europe with the children in July-August of 2013. Miller J. found that Mr. Janjic had acted arbitrarily in booking the flights without consulting Ms. Janjic, but the travel was allowed with conditions. The evidence before me discloses that Mr. Janjic did not adhere to those conditions. This is addressed more fully below.

[16] An Order of March 20, 2014, made by Skarica J., directs that:

a) Ms. Janjic will have sole custody of Radovan as he has ADHD and needs to take his medication.

b) Anica will continue to reside with Mr. Janjic, but the access for Ms. Janjic is to be increased during the remainder of the school year.

c) By the summer, the parties were to return to the custody and access arrangements ordered by Coats J. in March of 2011.

d) Counselling for both Anica and Radovan was recommended.

e) The Office of the Children’s Lawyer (“OCL”) was appointed, and a report requested. This trial was postponed until that report was received.

[17] The parties had difficulties following this Order. Ms. Janjic kept Radovan from seeing Mr. Janjic for a period of approximately three months in 2014, but has since returned access to approximately the level envisioned by the Order of Coats J. I will have more to say about that below.

[18] Mr. Janjic took the position (which he maintained at trial) that Anica was afraid of Ms. Janjic and did not want to see her. As a result, Anica has not spent any overnight visits with her mother since approximately November of 2013. This is contrary to the Orders of Coats J., Skarica J., and a subsequent Order of Trimble J. I will also have more to say about this below.

[19] Finally, there were two Orders of Coats J. dealing with counselling. Both of these Orders were on consent. However, on the record before me, it is doubtful whether Mr. Janjic followed the letter of these Orders. He certainly did not follow their spirit.

c) The Current Situation

[20] Currently, Ms. Janjic has sole custody of Radovan. He is in Grade 4 at Garthwood Public School. His access to Mr. Janjic is generally in accordance with the Court Orders.

[21] Currently, Anica is living exclusively with Mr. Janjic. She has had occasional visits with Ms. Janjic in the last year. All of these visits have either been supervised by the OCL, or in public places, including at a police station on a couple of occasions. This is contrary to all of the Orders in this case. Given the facts I outline below, I find that Ms. Janjic’s access to Anica has been deliberately limited by Mr. Janjic over a period of the last two years contrary to both Court orders and Anica’s best interests.

Credibility Issues

[22] Some of my findings have required me to make credibility assessments. In doing so, I have considered all of the evidence from the various witnesses that I heard testimony from over 10 days of trial. Those witnesses included Mr. Janjic and Ms. Janjic, as well as two daycare directors, Ms. Joyce Kalaw (Mr. Janjic’s witness) and Ms. Kristine Barron (Ms. Janjic’s witness). Ms. Barron is the current supervisor of the children’s daycare, and Ms. Kalaw was the previous supervisor.

[23] Mr. Janjic also called Mr. Ilija Static, the lead instructor for Serbian in the Halton District School Board; Mr. Ken Thompson, one of Mr. Janjic’s neighbours; Ms. Julia Favaro, one of Anica’s teachers; Ms. Leanne Rathbone, a Principal in the Halton District School Board system and Mr. John Barry Eakins, a lawyer who acted for Mr. Janjic.

[24] Ms. Janjic called Mr. Paul Bonham, Radovan’s current teacher, Ms. Shari Nickle, the Principal of Garthwood Public School and Ms. Kiruthika Shanmugaratnam from the Peel Region Children’s Aid Society.

[25] The Office of the Children’s Lawyer called Ms. Clairelise Folch, a psychologist who had worked with Anica and Ms. Isolina Varano, the clinical assist who worked with Mr. Demeda to present the views and preferences of the children to me.

[26] I ruled Mr. Eakins’ evidence inadmissible during trial because, inter alia, he was going to testify about a telephone conversation he had with Anica, and I would not have been able to make any reasonable assessment of the probative value of this evidence, as there was no way to explore where Anica was and who she was with when she had this telephone conversation.

[27] The testimony from the remainder of the witnesses was considered together with all of the documents in assessing what evidence I accepted and what was rejected. Generally, the witnesses testified as to the best of their recollections. In most cases, however, the professional witnesses (the Principals, the clinical assist, Ms. Folch and the witness from the CAS) had their notes to rely on, which assisted in assessing the evidence.

[28] The one place where I do have to make credibility findings is between Mr. Janjic and Ms. Janjic. While both of them attempted to tell me the truth as they recall it, memories can often be a difficult thing. Sometimes, witnesses will remember things a different way than they happened for a myriad of reasons, including their motivations and desires.

[29] In this particular case, where there is a dispute between Mr. Janjic’s evidence and Ms. Janjic’s evidence, I have preferred Ms. Janjic’s evidence. Many of the reasons for that conclusion will be set out in the sections that follow. However, I would highlight the following points

a. Ms. Janjic believes that she needs to improve as a parent. She is right, but the fact that she recognizes a need for improvement demonstrates an awareness of herself and of her circumstances that makes it more likely that she is remembering facts correctly.

b. Mr. Janjic, on the other hand, does not believe that he has any issues as a parent. Specifically, he fails to recognize that his conduct respecting Radovan delayed necessary medical treatment and disadvantaged his son. Indeed, he believes that his son has suffered for the last year because Mr. Janjic has not been able to work one-on-one with him.

c. Ms. Janjic recognizes that her relationship with Anica deteriorated in part because of Mr. Janjic’s conduct. Mr. Janjic, on the other hand, refuses to acknowledge that he has contributed to the deterioration in the relationship between Ms. Janjic and Anica in any way. Given the facts that I have found, this is troubling.

[30] There are other reasons for my credibility determinations that will be explained on each issue, but these general points assist in explaining the reasons for my findings of fact.

Facts Relating to Both Children

[31] There are a number of facts that relate to both children, which I will set out here.

[32] First, there was the issue of daycare pick-ups and drop-offs in 2012. While this is a relatively long time ago, the events relating to these pick-ups and drop offs are of assistance in understanding the dynamics at play in this case.

[33] Between January and June of 2012, Mr. Janjic was unemployed. He stated in an Affidavit dated May 20th, 2013 that, “since I was laid off at the time, I felt it was an appropriate opportunity to spend greater time with the children rather than sending them to daycare.” At the time, the final Order of Coats J. was in place, and the parent who had custody of the children that day had the responsibility for making day to day decisions. This would include whether they should go to daycare or stay at home on a particular day.

[34] In cross-examination, Mr. Demeda put to Mr. Janjic the fact that he had decided to take the children out of daycare on days when Ms. Janjic was supposed to make the decisions. After evading the question, Mr. Janjic finally conceded that he unilaterally took them out of daycare on days when Ms. Janjic was supposed to be making the decisions. This was a violation of the Order in place at the time. Given Mr. Janjic’s evasiveness when testifying on this point, I find that he knew that his conduct was a violation of the Court Order and he decided to do it anyway.

[35] Second, there is the communication between the parents. I see two issues in this area. First, there is the fact that the tone of communications between the two parents leaves something to be desired. Second, there is the fact that communications about the childrens’ needs is taking place between the children and one of the parents, rather than directly between the parents.

[36] Mr. Janjic’s position is that he would have no difficulty communicating with Ms. Janjic, as long as she stops making accusations. He withdrew from communications with her because he did not want to be the “punching bag”. He also stated, in closing argument, that he let the children talk to her about issues because he did not want to be the “bad guy”. Given this, he believes that communications between the two of them should be minimized.

[37] Ms. Janjic’s position is that she is not really sure what to do about the communications between the parties. She is concerned with the communications between the parties, however, and acknowledges that they could be better.

[38] In his argument, Mr. Demeda quite rightly observed that Mr. Janjic would have the Court believe that, on this issue, he was the injured party. Mr. Demeda also observed that, in reality, it was Mr. Janjic who could not communicate effectively with Ms. Janjic. With the evidence I have heard and read, Mr. Demeda has correctly identified Mr. Janjic as the source of the problem, but has vastly understated the extent of the problem. Three examples will suffice to illustrate the reasons for my conclusion.

[39] First, at one of the visits at the police station (which I will explain in more detail shortly), Ms. Janjic alleged that Mr. Janjic called her a horrible name in front of the children. It was so horrible that she was not prepared to say it in chief. Mr. Demeda, on cross examination had Ms. Janjic confirm that the words, said in Serbian, were “dirty whore”. While Mr. Janjic denies uttering these precise words, he did acknowledge being upset with Ms. Janjic, and he did not challenge Ms. Janjic’s evidence on cross examination. In the circumstances of this case, I find as a fact that Mr. Janjic uttered these words in front of the children. Mr. Demeda observed that this was a pretty horrific thing to do. I agree.

[40] The other two examples come from e-mails. There are a number of e-mails throughout the evidence. However, in his final argument Mr. Demeda pointed to two separate e-mails. One at the beginning of this process, and one approximately a week before the trial started.

[41] The first e-mail is from July of 2011, and there are a series of them over a short period of time that say essentially the same thing. The one dated July 4th, 2011 from Mr. Janjic to Ms. Janjic states “this inappropriate behaviour is a clear demonstration of your flagrant inability/negligence when it comes to children’s care.” This statement is repeated elsewhere in the e-mail thread, and relates to Mr. Janjic’s allegation that Ms. Janjic has not given the children proper clothing. On reviewing the e-mails, it is also clear that Ms. Janjic had put a change of clothing into the children’s knapsacks, and was prepared to bring other items to Mr. Janjic if necessary. Mr. Janjic’s comments in the e-mail were neither necessary nor justified.

[42] Then there is an e-mail dated March 13th, 2015 from Mr. Janjic to Ms. Janjic. The first sentence states “as I mentioned numerous times before, I do not want to argue with you or communicate with you when you have one of those moment [sic] where your sanity is not well tuned.” When cross-examined about this e-mail by Ms. Janjic, Mr. Janjic stated that “this is a polite approach from my side to bring it to your attention”.

[43] There was nothing polite, or appropriate, about either of these e-mails. Having reviewed the totality of the communications, there were occasions where Ms. Janjic could have improved her choice of words, although her communications were generally about the children. However, Mr. Janjic’s communications with Ms. Janjic were (and are) abusive, and should not be tolerated. When it comes to communication between these parties, Mr. Janjic is the source of the problem, and it is significant.

[44] Third, there was Mr. Janjic’s issue that the children did not have sufficient, or appropriate, clothes. It is not significant, but I will comment briefly on it, as it is another example of Mr. Janjic’s tendency to overemphasise problems with Ms. Janjic’s parenting skills.

[45] Mr. Janjic stated that the children were regularly dressed in clothing that was age inappropriate. It was not completely clear to me what the issues were from his evidence. However, we had evidence that Ms. Janjic was providing the children with used clothes, and with clothes that she had received from a friend.

[46] In considering this issue, I view the evidence of Ms. Kalaw as being particularly helpful. She noted that there had been a couple of incidents where Anica had not been dressed in appropriate clothing, and may have had body odour issues. Once these were discussed with her parents (and particularly Mr. Janjic) the issues were resolved. On the evidence that I received, I do not view this as a significant issue. I also view this as an example of Mr. Janjic overstating the issue, in part because he believes it will assist him in convincing the Court that Ms. Janjic is a bad parent.

[47] There was some time spent on the issue of the scheduling of activities for the children. One of the assertions that Mr. Janjic made was that he scheduled activities such as skiing, tennis, dancing and Serbian language education and that these activities were important to the development of Radovan and Anica.

[48] Ms. Janjic testified that these activities were scheduled during her access time, and the scheduling was done without consulting her. She also testified that she would have been prepared to take the children to these activities when they fell on her days for access, but Mr. Janjic would not let her take them.

[49] Mr. Janjic seems to dispute Ms. Janjic’s assertion that he insisted on taking the children for activities that he had funded even when it was Ms. Janjic’s time with the children. However, one of the e-mails filed as an exhibit by Mr. Janjic was dated December 3rd, 2011 and was from him to Ms. Janjic. It is about skiing lessons, and it states “when it is your Saturday I’d come to your place pick them up and after the classes bring them back to your place. I hope this is not disturbing your routine.” There is a subsequent e-mail in which Mr. Janjic suggests that Ms. Janjic should take them to one of the activities that Mr. Janjic scheduled, but Mr. Janjic’s general view was that he should take the children to activities that he had paid for, even if it was during Ms. Janjic’s time with the children.

[50] Later in his testimony, Mr. Janjic made much of the fact that the children, and particularly Radovan, had failed at these activities because Ms. Janjic had refused to take them.

[51] I reject Mr. Janjic’s evidence on this point. It is clear to me that Mr. Janjic was scheduling activities during Ms. Janjic’s parenting time without consulting her, and then generally insisting that he take the children to the activities, even though it was Ms. Janjic’s parenting time. I also find that Mr. Janjic was scheduling these activities in part to interfere with Ms. Janjic’s parenting time.

[52] Finally, there is the relationship between the two children. One of the key findings of fact is that Radovan and Anica have a good sibling relationship. This was evident from the report of the counsellor who saw them, Kelly Thorarinson, as well as from Ms. Janjic’s evidence.

[53] In assessing the best interests of the children, it is essential to fashion a solution that preserves, as best as possible, this relationship. Given the challenges that these children have faced, and will face in the near future, a good relationship between the two of them is essential.

Facts Relating to Anica

a) The Evolution of Anica’s Custody

[54] Originally, in early 2013, Anica was spending a significant portion of her time with her mother. In early 2013 there was an incident of abuse involving a mouse cable. Shortly after that, Anica started to spend more time with Mr. Janjic. He would pick her up from daycare early, and would not return her to Ms. Janjic for longer and longer stretches.

[55] As noted elsewhere in this decision, Mr. Janjic took Anica and Radovan to Serbia in the summer of 2013 for a vacation with his family. In February of 2013, Mr. Janjic booked tickets to Serbia for him and the children for a four week vacation. He then informed Ms. Janjic of his intention to take the children to Serbia. Ms. Janjic objected, and a motion was necessary to resolve the issue of whether the children would be allowed to travel to Serbia with Mr. Janjic. Ultimately, Miller J. determined that they should be allowed to travel to Serbia, but with conditions, as follows:

Before leaving with the children, Mr. Janjic must provide Mrs. Janjic with a detailed itinerary with respect to flights, means of travel and locations the children will be in during the trip. While absent from Canada, Mr. Janjic shall ensure that the children contact their mother by telephone at least every three days, between the hours of noon – 1 p.m. EDT.

[56] Ms. Janjic points, correctly, to the fact that the entire process that Mr. Janjic adopted in scheduling this trip was contrary to the final Order of Coats J. and, in particular, paragraph 4, which states:

If either party wishes to travel outside of Canada, if they cannot agree, the issue will be decided at mediation/arbitration.

[57] This is one of many examples of Mr. Janjic not following Court Orders, and then taking the position that he was doing the right thing for the children. He attempted to justify this breach, and the decision to take the children to Serbia, on the basis that it was good for the children.

[58] However, the evidence is also clear that Mr. Janjic did not follow the directions imposed by Miller J. about ensuring that Ms. Janjic could have contact with the children while they were away in Serbia. There is no explanation for Mr. Janjic’s failure to follow these directions.

[59] To support his case that he acted appropriately in taking the children to Serbia, Mr. Janjic enlisted Anica’s teacher at the time, Ms. Favaro, who provided an e-mail and gave testimony in this matter. This testimony was not helpful to me in addressing this issue as it was clear that Ms. Favaro did not have a complete picture of the family dynamics or the needs of Anica.

[60] When Mr. Janjic returned from Serbia with the children, access returned to normal for a period of time. However, in that time, Ms. Janjic testified that Anica was becoming more challenging to manage, and more unhappy at her mother’s house. From the evidence I received, this was an evolutionary process that had begun in early 2013 at the same time as the incident with the mouse cord.

[61] Eventually, in November of 2013, Anica refused to return to Ms. Janjic’s house for an overnight visit, and has not had an overnight visit with Ms. Janjic since. This is in the face of Orders of this Court that require access to be shared, with Anica’s primary residence being Ms. Janjic’s house. Indeed, it is contrary to two specific Orders of this Court, one by Skarica J. and one by Trimble J. Both of these Orders envisioned a prompt return to shared access for Anica.

[62] One of the key questions in this case is why has this happened? It involves a number of factors, including some allegations of abuse as well as the conduct of the parties. I turn to those issues now.

b) The Allegations of Abuse

[63] Mr. Janjic pointed to an incident where Ms. Janjic used a mouse cable to hit Anica. As well, he pointed to incidents where Ms. Janjic allegedly used a spatula to hit Anica for disciplinary purposes. The incident that is substantiated occurred with a mouse cable in early 2013.

[64] Ms. Janjic testified in cross-examination about this incident. She confirmed that on one occasion in early 2013 she had hit Anica with a mouse cable. Ms. Janjic further confirmed that the allegation was investigated by the Children’s Aid Society, and that it was verified as an issue of concern. Ms. Janjic acknowledged that this incident was around the time when Anica started to have issues with Ms. Janjic and that the incident caused Anica great emotional upset.

[65] Mr. Demeda suggested in his cross examination (and his closing argument) that he was concerned that Ms. Janjic had not mentioned this incident at all in her examination in chief. In this case, I understand but do not share Mr. Demeda’s concern because Ms. Janjic testified that she was calling a representative from the Peel CAS to speak to the issue and because she was forthright in her answers on cross examination and in her acknowledgement that this issue contributed to the problems between herself and Anica.

[66] The incident also shows Mr. Janjic’s tendency to overstate problems with Ms. Janjic’s parenting. In speaking to Ms. Varano of the OCL, Mr. Janjic described the incident as “Ms. Janjic beat Anica with a mouse cable, leaving bruises.”

[67] However, both Ms. Shanmugaratnam and Ms. Janjic confirmed that Ms. Janjic hit Anica with the mouse cable accidentally, in an attempt to prevent Anica from hitting Radovan. I find that Mr. Janjic has overstated this incident. I also find that part of the reason that this incident has caused Anica great upset is that Mr. Janjic is likely emphasising and exaggerating it in his discussions with Anica.

[68] This brings me to two other issues raised by the testimony of Ms. Shanmugaratnam. First, there was an incident in February of last year where the CAS investigated a claim that Mr. Janjic had hit Radovan with a ski pole. Anica was asked about this incident by the CAS, and refused to speak to them unless her father was present. Radovan was asked about the incident on a number of occasions. At first, he confirmed the incident. Then, he denied the incident, stating that his father had dropped the ski poles on the floor and then hit him three times on the buttocks with his hand. Radovan then stated “that his dad will get angry if he goes home with his mother.”

[69] This incident troubles me a great deal more than the incident with the mouse cable. The facts are not completely clear, and I was not given a complete copy of the CAS notes on this issue. I was given only one case note entry. In the circumstances, however, the evidence I did receive causes me to conclude that this incident likely did happen in that Radovan was likely hit with a ski pole, and that Mr. Janjic and Anica were not being forthright about it.

[70] Second, there is the approach of Ms. Janjic and Mr. Janjic to the involvement of the CAS. Mr. Janjic is opposed to their involvement with his family, and is not interested in assisting them with any investigations. It is interesting to note that Anica is also not prepared to discuss issues with the investigators from the CAS. In my view, given the remarkable parallels between what Mr. Janjic and Anica have told the OCL, it is likely that Anica gets her reluctance to speak to the CAS from Mr. Janjic.

[71] Ms. Janjic on the other hand has proactively used the services of the CAS in order to improve her parenting skills. As noted by Ms. Shanmugaratnam, she has engaged the services of the OCL in order to assist her with developing strategies for positive parenting so that she does not resort to physical discipline.

c) Efforts to Improve Anica’s Relationship with Ms. Janjic

[72] These efforts divide themselves up into two parts. The first is the efforts, through the OCL and Court Orders, to have Anica spend more time with Ms. Janjic. The second is counselling, which I will deal with separately.

[73] Pursuant to the Order of Skarica J., the OCL became involved in this case in the summer of 2014. At that time, Ms. Janjic had not seen Anica outside of the daycare or school since November of 2013. The OCL scheduled an observation visit at Mr. Demeda’s office on August 7th, 2014. At the start of this visit, Anica would not look at or speak to Ms. Janjic. However, through the efforts of Ms. Verrano, the two of them began to have a conversation, and began to repair their relationship.

[74] By the end of the visit, there was a point when Anica and Ms. Janjic were out in Mr. Demeda’s waiting room. On the uncontradicted evidence I heard, at this point Ms. Janjic and Anica were sitting on the same couch and, Anica was cuddled up beside Ms. Janjic, even though there were other places in the waiting room where Anica could have sat by herself.

[75] After this visit with the OCL, Anica expressed a desire to spend time with Ms. Janjic, and two dinners were scheduled, and took place later in August. One was with Radovan and the other was just the two of them. These dinners went well. Indeed, in his evidence, Mr. Janjic conceded that nothing bad happened during these visits.

[76] However, there were no more visits between Anica and Ms. Janjic in September or October. The next visit was at the end of November. It took place at a police station, and was the occasion when Mr. Janjic referred to Ms. Janjic as a “dirty whore”.

[77] On Mr. Janjic’s evidence, this visit was at a police station because Anica did not want to be alone with Ms. Janjic unless it was in a public place. Because it was Saturday, and they wanted to be somewhere where there was surveillance, they went to the police station. I reject this evidence. The reason for the visit at the police station was that Mr. Janjic did not want any improvements in the relationship between Ms. Janjic and Anica, and Mr. Janjic was concerned by what had happened in the summer.

[78] At this point, I should note that there was a period in 2007 and 2008 when Mr. Janjic did not have access to the children. This time period is not generally relevant to considering this Motion to Change as it was before the Final Order of Coats J. However, I permitted Mr. Demeda to cross-examine Mr. Janjic on this time period in order to explore Mr. Janjic’s current motivations. Mr. Demeda suggested to Mr. Janjic that the lack of access to Anica currently was “payback” for the fact that he had not been given access in 2007 and 2008.

[79] In support of this assertion, Mr. Demeda pointed to two separate Affidavits sworn by Mr. Janjic on this motion. In both cases, Mr. Janjic was addressing the fact that Ms. Janjic does not currently have access to Anica. In both cases, he references the time period in 2007 and 2008 when he did not have access to the children. His explanation for this on cross examination was that he was not angry, and was just stating the facts.

[80] I reject that explanation. I find that Mr. Janjic remains angry about this time period, and that Mr. Demeda’s suggestion that he is engaged in “payback” by denying Ms. Janjic access to Anica is well founded.

[81] At the end of this visit at the police station, Ms. Janjic advised Mr. Janjic that she would not be visiting at the police station again. However, in his examination in chief, Mr. Janjic relied on two subsequent occasions when he went to the police station with Anica and Ms. Janjic did not attend. Mr. Janjic pointed to this as evidence that Ms. Janjic really did not want to see her daughter, and that Mr. Janjic was doing everything he could to restore access. I reject that evidence as well.

[82] There have been subsequent visits between Anica and Ms. Janjic. All of them have taken place in a public setting, and all of them have been at a time that is convenient to Mr. Janjic. They do demonstrate, however, that the potential for a regeneration of the relationship between mother and daughter exists.

[83] However, Mr. Janjic continues to put up barriers to access for Ms. Janjic. As an example, in January of this year, Mr. Janjic sent Ms. Janjic an e-mail that stated, in part, “please be aware that Anica has her obligations and plans in advances scheduled and she is trying to be organized and disciplined as much as she can.” Similarly, when asked about whether she wanted to see Ms. Janjic, Anica stated that “she would not see Ms. Janjic again until she knows her guitar and basketball schedule. She also needs time to do her homework.”

[84] This brings me to one of the most remarkable, and concerning, features of this case. As Ms. Varano noted in her testimony, Anica does a great deal of parroting of Mr. Janjic. The example above is one of many. Others include:

a. Both of them assured Ms. Varano that, if Mr. Janjic got sole custody, then Anica would see Ms. Janjic. Ms. Varano testified, and I accept, that Mr. Janjic was stating what he believes himself, rather than merely what Anica said.

b. Both of them told Ms. Varano that Ms. Janjic did not eat healthy food. Anica told the OCL that she would see Ms. Janjic in the community if she ate healthier.

c. Anica was not able to relate any positive memories of Ms. Janjic, which Ms. Varano testified was unusual. At the same time, Mr. Janjic did not have anything at all positive to say about Ms. Janjic as a parent, which Ms. Varano testified was also unusual.

d. Mr. Janjic testified that Anica was the one who made the decisions about where she would live, and Anica has affirmed on a number of occasions that she will make the decision about who she lives with.

d) Counselling

[85] I heard testimony from Clairelise Folch, who was a psychotherapist, although no party sought to have her qualified as an expert in this matter. Ms. Folch testified that all of her meetings with Anica had been arranged by Mr. Janjic. She also testified that she had no contact with Ms. Janjic until after she had completed all of her sessions with Anica.

[86] Ms. Folch testified that she had first met with Anica in 2011, when Anica was seven. At that time, Ms. Folch noted that she was asked to see Anica by Mr. Janjic, who was concerned that Anica was not being taken well care of by Ms. Janjic, and was afraid of Ms. Janjic.

[87] Then, Ms. Folch testified that she met with Anica on two occasions in 2014 at Mr. Janjic’s request. On the first occasion, in April of 2014, Ms. Folch met with Anica for an hour for the same reasons as in 2011. In addition, Anica had become aware that she might have to spend nights with her mother, and had become stressed about it. At this point, Ms. Folch recommended that Anica not stay with her mother overnight. However, Ms. Folch also recommended counselling. Ms. Folch also noted that Anica had a very strong knowledge of the Court case, and that both parents had engaged in alienating behaviours. However, Ms. Folch recommends counselling for Anica, and provided this recommendation to Mr. Janjic at the conclusion of the appointment.

[88] In spite of Ms. Folch’s recommendations in April 2014, Mr. Janjic did not take her for counselling. Indeed, it required a consent Order for Mr. Janjic to have Anica attend at counselling. Mr. Janjic made no efforts on his own to send Anica for counselling. Indeed, in a July 4th, 2011 e-mail he stated “As I stated many times before children who are up to 10 have no need for physiologist [sic].”

[89] Then, in a March 7th, 2015 e-mail, Mr. Janjic stated:

You do not work on any transition with Anica, you simply have the same story over and over. Threatening Anica with police, court and therapists and expecting the other people to fix your problem. There is nothing wrong with Anica. Your failure to establish relationship with your daughter does not constitute me not having a life…As a courtesy I took Anica four times for counselling and paid for two of them. Any further actions is up to you.

[90] The “courtesy” that Mr. Janjic refers to is a consent Order that was issued by Coats J. on November 18th, 2014 and a further Order that happened in February of 2015. There was a session scheduled for Anica in January of 2015 that she did not attend (in spite of the Court Order of November 18th, 2014), so a further Order was issued with specific dates in February of 2015.

[91] The counsellor, Kelly Thorarinson, stated that further counselling sessions with Anica would be useful to help her develop a relationship with Ms. Janjic. However, I am not aware of any further counselling being scheduled. Indeed, Mr. Janjic’s March 7th, 2015 e-mail suggests that he is not prepared to have Anica attend at counselling even though it would be useful. Mr. Janjic views counselling as a threat.

[92] During the trial, Mr. Janjic stated that he has done everything from his side to foster the relationship between Ms. Janjic and Anica. This statement ignores the recommendations from both counsellors that more counselling is needed.

[93] Ms. Folch also had a half hour appointment with Anica in June of 2014 because Anica had expressed that, if she was forced to live with her mother, she would commit suicide. She also expressed this thought to Ms. Varano. On the evidence I heard, this is a very unusual thought for an 11 year old girl to have. Both Ms. Varano and Ms. Folch concluded that she was not all that ready to follow up on this statement. Mr. Janjic expressed this as a “huge concern” during the trial. However, Mr. Janjic has also stated that Anica is fine and has no issues.

[94] Based on all of this, I conclude that counselling would likely be helpful to Anica, but that Mr. Janjic is impeding that counselling. The effects of this conclusion on the disposition of this case will be explored below.

e) Breaches of Court Orders

[95] At this point in the narrative, it is obvious that Ms. Janjic is trying to work on her relationship with Anica, and that she is seeking counselling. It is also obvious that Mr. Janjic was (and is) not interested in having Anica participate in counselling. He views the problems in Anica’s relationship with Ms. Janjic as a problem of Ms. Janjic’s making.

[96] However, Mr. Janjic’s conclusion ignores the fact that Mr. Janjic has been (at a minimum) actively assisting Anica in avoiding spending time with Ms. Janjic. That was obvious to me from the evidence. Ms. Janjic testified that, since November of 2013, she would generally ask Anica if she was willing to leave the daycare with Ms. Janjic. Anica’s response was to either have a temper tantrum, or simply refuse to go with her mother. Anica would express to Ms. Janjic, and others, that she knew her father was coming to get her.

[97] Ms. Janjic then testified that she would regularly see Mr. Janjic entering the daycare the moment that she had left with Radovan. As she put it when Mr. Janjic was cross-examining her about the week before the trial, “I look in my rearview mirror and see you entering the daycare.” There were some occasions when the daycare would have to call Mr. Janjic, but he was always able to be there promptly. This conclusion is supported by the information that both Radovan and Anica gave to the OCL.

[98] Mr. Janjic testified that it was not against the Court order to show up at the daycare when it is not his day to spend time with the children. While technically he may be correct about that, the fact that he attends at the daycare on days when he is not supposed to have the children allows the Court to draw inferences. It also demonstrates that Mr. Janjic will use any loophole in the Court’s orders to pursue his own agenda, even if his conduct is contrary to the spirit of the Court Order. This is a very important conclusion when it comes time to determine the remedy in this case.

[99] The only reasonable inference that can be drawn from Mr. Janjic’s testimony is that he was intentionally showing up at the daycare at the end of the day to encourage Anica to come with him rather than to go with her mother.

[100] In addition, Mr. Janjic testified that he could not force Anica to go with Ms. Janjic if Anica did not want to go with her. In Mr. Janjic’s words, Anica made the decision and it was not his choice. The only inference that I can draw from this evidence is that Mr. Janjic was enabling Anica’s behaviour, and providing her with an opportunity to avoid her mother.

[101] Given my findings above, however, the evidence takes me further. On the facts I have before me, I must conclude that Mr. Janjic was actively attempting to sabotage the relationship between Anica and Ms. Janjic, and this was one more way in which he was doing it.

[102] Mr. Janjic asserts that Ms. Janjic has actually been negligent and has left Anica behind on a regular basis since November of 2013. He confirmed this position in his evidence. In addition, in his e-mail of March 13th, 2015, Mr. Janjic states:

“for over 18 months you have been leaving Anica behind in her daycare and disregarding your time with her in accordance with the existing court order. This Thursday I was called by daycare at 18:05 (5 min after daycare was closed, and you were in daycare at that time) to come and pick Anica. You left her behind again…. I do not arrange your time with Anica, so I do not affect your schedule.”

[103] Mr. Janjic’s statement bears no resemblance to the reality in this case. The reality is that Mr. Janjic has been assuring Anica that he will pick her up every day and, indeed, on most days has been waiting at the daycare at the end of the day. He has done this with the intent of ensuring that Anica does not go with Ms. Janjic, and to interfere with any chance of Anica developing a relationship with Ms. Janjic. He has then decided, as a strategy, to blame Ms. Janjic for negligence and for breaching the Court Order.

[104] Mr. Janjic has engaged in a deliberate, planned and intentional course of conduct to subvert the Orders of Coats J., Skarica J., and Trimble J. I do not find contempt, however, as a Notice of Contempt Motion must be brought under Rule 31(2) before the Court can consider a contempt proceeding. No such motion was brought in this case, so I have no jurisdiction to consider whether Mr. Janjic’s conduct amounts to contempt. I also note that the standard for contempt requires proof beyond a reasonable doubt.

Facts Relating to Radovan

a) Radovan’s Medical Condition

[105] Radovan has Attention Deficit and Hyperactivity Disorder (“ADHD”).

[106] I feel it necessary to make that specific finding of fact first, and separately, for a number of reasons. First, Mr. Janjic has denied on numerous occasions that Radovan has any issues even in the face of medical documentation that clearly illustrates that Radovan has ADHD.

[107] At trial, it was not completely clear to me whether Mr. Janjic accepted this diagnosis or not. What was clear to me were the following:

a) Mr. Janjic stated on a number of occasions, both in evidence before me, and in other documents, that he wanted a second opinion on whether Radovan had ADHD.

b) Mr. Janjic was disappointed with the attempts by the school to label Radovan. In Mr. Janjic’s view, Radovan did not act out with him or when he was at Serbian school. Mr. Janjic felt that Radovan had been mislabelled.

c) Mr. Janjic took the view that the doctors who diagnosed Radovan with ADHD did not consider or interview Radovan. They just accepted the views of the school and of Ms. Janjic.

d) Mr. Janjic testified that eight members of his family in Europe were doctors. One was a paediatrician and one was a psychiatrist. He testified that their view was that the medication given to Radovan was very strong.

[108] Mr. Janjic, in his cross examination, suggested that Ms. Janjic had not taken sufficient steps to return to see Dr. Hoffer or to otherwise get Radovan diagnosed and given treatment. He points to the fact that between August of 2012 and March of 2014, Ms. Janjic did not bring a motion to address this issue.

[109] Ms. Janjic’s explanation for not acting earlier was twofold. First, she did not have the financial resources to keep returning to Court to deal with motions. Second, issues with Radovan became much more serious in the fall of 2013 and early 2014 when he was having to stay home from school on a regular basis. Ms. Janjic testified that this was affecting her ability to do her job.

[110] On the facts that I have, Ms. Janjic took all reasonable steps to assist Radovan in obtaining a diagnosis and getting treatment. It was Mr. Janjic who interfered with these efforts.

b) Radovan’s Issues and Progress In School

[111] Radovan started Grade 1 in French Immersion at Sheridan Park Public School in Mississauga. He had significant issues, including the following:

a. He had a tendency to run away from school, or from other places where he was being taught. I heard evidence of a number of occasions when Radovan did this.

b. The logbooks filed indicated that he had significant challenges in paying attention and remaining focused in school. These also included problems in sitting still and not wandering around or climbing on things.

c. Radovan had a number of incidents where he had physical contact with other students. These escalated through the years to the point where he was punching and hitting other students. He was suspended from school on a couple of occasions in 2013 and early 2014.

[112] At the end of Grade 1 (in 2012), the Identification Placement and Review Committee (“IPRC”) determined that Radovan should be placed in a special school for behavioural issues for the following year. Mr. Janjic fought against this determination, and sought assistance from Dr. Meyer Hoffer. Mr. Janjic was also concerned that the school was labelling Radovan as having ADHD. Dr. Hoffer’s conclusions about being in a special school were set out in a letter provided to the Court. It states:

Given it is a new school year, the parents can continue observation of Radovan and wait to see how, with a new teacher Radovan will integrate during the first four to six weeks of school and then gain feedback from the teachers to see how he is progressing and determine if additional steps, including medication, are warranted. (As treatment should result in significant improvement within a few weeks, this should be acceptable to the school.)

A diagnosis of ADHD is no reason to remove a child from the academic stream. With proper follow up, structure and treatment, Radovan can excel in any environment. I hope this assists you moving forward with your son.

[113] Mr. Janjic argued that this demonstrated that this referral to a special classroom was unnecessary. As it turns out, he was right, and Dr. Hoffer’s letter prevented the referral. However, what ultimately solved Radovan’s problems was treatment of his underlying condition, ADHD.

[114] I should also note that there was evidence that demonstrated that Radovan was quoting from movies such as Fast and Furious and other videogames that he was watching while at Ms. Janjic’s house. The evidence I have establishes that this happened, but has stopped since Radovan went onto the medication. I now turn to Radovan’s progress since the Order of Skarica J. was issued.

c) Radovan’s Progress Since Skarica J.’s Order

[115] In March of 2014, Skarica J. Ordered that Ms. Janjic would have sole custody of Radovan and sole decision making authority over him so that treatment could be obtained for ADHD. Promptly afterwards, Ms. Janjic took Radovan to see Dr. Hoffer for medication.

[116] She advised Mr. Janjic of the appointment in advance, and offered him the opportunity to come with her to the appointment. Mr. Janjic declined on the basis that he was unavailable and it was on short notice.

[117] In any event, after this appointment, Radovan was prescribed medication. The effect on his performance in school was remarkable, to say the least. I note the following:

a. The change in Radovan’s report card between February of 2014 and June of 2014 is remarkable. In the evaluation of his six work skills and habits in February of 2014, he had three Needs Improvements and three areas that could not be evaluated, they were so weak. In June of 2014, he had improved so much that he had only one Needs Improvement, four Satisfactory ratings and one Good rating. This is a remarkable improvement for a child over three months.

b. There has been a change in Radovan’s Independent Education Plan (IEP), so that there is no longer a safety plan associated with it.

c. Radovan went to Kelso, a YMCA summer camp, in 2013 and 2014. In 2013 he was unmanageable, while in 2014 (after being put on the medications) he had a great summer.

d. I heard testimony from his teacher, Mr. Bonham, who stated that Radovan was making great progress this year, and that the only days that were challenging with Radovan were the days that he had forgotten to take his medication.

e. Radovan himself understands that the medication helps him, and he knows that he feels different on days when he has not taken it.

f. As Radovan’s Principal, Ms. Dirks, noted in a May 30th, 2014 e-mail, “we have noted great improvement in Radovan.”

[118] Mr. Janjic did not point to anything that would suggest that the medication had not been good for Radovan, other than his assertion that, in Europe, these diagnoses are not made until the child is twelve.

[119] Mr. Janjic, both in his examination in chief, and in his cross-examination of Ms. Janjic, stated that he should have been given the opportunity to help his son by working with him one on one. He asserts that this would have been helpful to Radovan in improving his academic performance.

[120] I reject this assertion. It is the medication that is assisting Radovan with his schooling and his development, and Mr. Janjic did everything possible to prevent Radovan from being placed on medication. I now turn to the issue of whether Radovan has been receiving his medication properly.

d) Radovan’s Medication

[121] Ms. Janjic asserted that Mr. Janjic did not give Radovan his medication properly, this would cause problems at the school, and Radovan would have a more challenging day. This was confirmed by Radovan’s teacher and principal.

[122] Mr. Janjic testified that he would leave the medication out for Radovan to take. As Radovan noted, Mr. Janjic reminds him to take the medication but does not ensure that he takes it. Ms. Janjic on the other hand ensures that Radovan takes his medication every day.

[123] In addition, the evidence I have before me discloses that in the fall of 2014, Mr. Janjic was insisting on having a month’s supply of medication for Radovan and making it very difficult for Ms. Janjic to provide him with any of the necessary medication. He was putting conditions on receiving the medication (both when and where), and was raising other extraneous issues. In short, he was not cooperating in ensuring that Radovan got his medication.

e) Breaches of the Court Order

[124] Mr. Janjic has alleged that he was not provided access to Radovan for two separate periods. First, from February until May of 2014. Second, for approximately three weeks between December 20th, 2014 and January 6th, 2015. I will deal with each period in turn.

[125] In the time period between February and May of 2014, I agree with Mr. Janjic that he was not provided with access to Radovan, and that this was contrary to the Court Orders in place. However, I also note Ms. Janjic’s explanation for this, which was the fact that Radovan was newly on his medications and she was seeking to stabilize him. She was also seeking assurances from Mr. Janjic that he would administer the medication to Radovan. She put these requests into e-mails. Mr. Janjic never responded to Ms. Janjic’s requests and, as a result, Ms. Janjic did not know whether Mr. Janjic would adhere to the medication schedule.

[126] In the circumstances, it was inappropriate for Ms. Janjic to breach the Court Order, and she should have provided Mr. Janjic with access during this time period. However, I also note that, once Radovan was stabilized on his medications, Ms. Janjic ensured that access returned to approximately what was envisioned by the various Court Orders.

[127] I now turn to the time period between December 20th, 2014 and January 6th, 2015. I am extremely troubled by what happened in that time period. On the evidence before me, Ms. Janjic and Anica were to have access at the library that day. On Mr. Janjic’s evidence, Ms. Janjic did not spend any time with Anica, and just turned around and left.

[128] On Ms. Janjic’s evidence, Radovan was to go back to Mr. Janjic’s on December 23rd, 2014, and Ms. Janjic and Anica were to have a visit on December 22nd, 2014 at the library. At that time, Ms. Janjic asked Anica if she wanted to come with her for a bit, and Anica said no and walked away.

[129] When Ms. Janjic asked Mr. Janjic when Radovan should be dropped off on December 23rd, 2014, Mr. Janjic told Ms. Janjic that if Radovan wanted to stay with Ms. Janjic, then he could. Then, on December 27th, 2014, Ms. Janjic went to the library to meet up with Anica. When she did not arrive, Ms. Janjic texted Mr. Janjic and was advised that Mr. Janjic had taken Anica skiing and that they would be back in a few days.

[130] It is clear from the evidence and other materials before me that Mr. Janjic took Anica skiing for several days at Mont Tremblant. The only inference I can draw is that this was a pre-planned trip. This is the reason why Mr. Janjic did not have access to Radovan for part of this time.

[131] For the remainder of the time, it is clear that Mr. Janjic let Radovan stay with Ms. Janjic rather than insisting that he come home. That was, on the evidence I have, clearly Mr. Janjic’s decision.

[132] I find that, in this time period, Mr. Janjic took Anica on a pre-planned skiing trip that Radovan was not invited on or to be included in, foisted Radovan off on Ms. Janjic for the Christmas period and then attempted to blame Ms. Janjic for not giving him access during this time period.

[133] While concerning to me, Ms. Janjic’s breach of the Court orders in February to May of 2014 are not nearly as significant as Mr. Janjic’s various breaches of Court Orders during this litigation.

The Applicable Case Law

[134] I provided the parties with the following cases at the conclusion of evidence in order to give them an opportunity to comment on them. The cases were: Reeves v. Reeves, [2001] O.J. No. 308; El-Murr v. Kiameh, [2006] ONCJ 125; F. (A.M.) v. W. (JR.) ,[2011] ONSC 1868; Lazarevic v. Lazarevic, [2014] ONSC 7348; Johnstone v. Locke, [2012] ONSC 719; Harris v. Harris, [1999] CarswellOnt 4099; Fielding v. Fielding, [2013] ONSC 5102; C.S. v. M.S., [2007] 6240; L.(J.K.) v. S (N.C.), [2008] CarswellOnt 2903.

[135] I advised the parties that these cases were arguably relevant and I would be considering them. I also advised the parties that I would be considering the cases in the first two sections of the Family List of cases that applies to Central West Region. Finally, I asked the parties to provide any additional cases they might want to rely on.

[136] I did not receive any cases from the Applicant or from Mr. Dereda. However, I received the following decisions from the Respondent, which I have considered: B.K. v. A.P., [2005] 27602; Tremblay v.Tremblay, [1987] 147; PCP v. LCP, 2013 ONSC 2564; Reeves v. Reeves, [2001] O.J. No. 308, 2001 CarswellOnt 277; L.(J.K.) v. S (N.C.), [2008] CarswellOnt 2903; Pitamber v. Moore, 2015 ONCJ 21; Boukema v. Boukema, [1997] 12247 (ONSC); Divorce Act, R.S.C 1985, (2nd supp.), C.C-3; Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670.

a) Material Change In Circumstance

[137] Section 17 of the Divorce Act sets out the test that must be applied in this case, as follows:

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

A support order or any provision thereof on application by either or both former spouses; or

A custody order or any provision thereof on application by either or both former spouses or by any other person.

Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

[138] That test has been elaborated on in Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 134 D.L.R. (4th) 321, at para. 13, where the Supreme Court stated:

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[139] In assessing whether there has been a material change in circumstances, the party seeking the change bears the burden of proof. Once that burden has been satisfied then the judge hearing the case must consider the case afresh. As noted at para. 47 of Gordon v. Goertz:

The parent seeking the change bears the initial burden of demonstrating a material change of circumstances. Once that burden has been discharged, the judge must embark on a fresh inquiry in light of the change and all other relevant factors to determine the best interests of the child. There is neither need nor place to being this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof.

[140] For both children, I have to determine whether there has been a change in circumstances within the meaning of Gordon v. Goertz. In both cases, I find that there has been a change in circumstances, requiring a reconsideration of the best interests of each child. My reasons for this conclusion are as follows.

[141] For Anica, accepting that there has been a change in circumstances is challenging, given that these changes flow from breaches of Court orders. However, I accept that there has been a change in circumstances. Anica’s poor and deteriorated relationship with her mother is a change in her condition, and has had a material effect on her. Indeed, it is possible that she will live with the psychological scars from the past two years forever. I also find that it was not something that could have been foreseen in March of 2011 when the Order of Coats J. was made.

[142] For Radovan determining that there has been a change in his circumstances is easy. When the final Order of Coats J. was signed, Radovan had not yet started school, and had not been diagnosed with ADHD. The diagnosis of ADHD is clearly a change in both the condition and needs of Radovan, and it materially affected him. As noted above, the ADHD made it difficult for Radovan to progress at school, and receiving treatment for the ADHD has had a profound impact on his academic progress. Finally, this diagnosis was not something that could reasonably have been foreseen when the Order of Coats J. was issued in March of 2011.

[143] In both cases, I must then determine what the best interests of each child are. Given that these two children are in very different circumstances, I will deal with their best interests separately.

b) Joint Custody

[144] In the Order of Coats J., Ms. Janjic and Mr. Janjic were given joint custody of both children. I have to start by determining whether joint custody is something that remains in the best interest of either child at this point.

[145] In Kaplanis v. Kaplanis ((2005) 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 at para 11), the Court of Appeal considered the question of joint custody, and stated:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[146] In this case, I have spent some time reviewing the communications problems that exist between these parties, and they are considerable. Suffice it to say that a father who calls a mother a “dirty whore” in front of the children after having taken his daughter for an access visit in a police station probably has communication problems that preclude joint custody. The tenor and substance of the communications, especially those emanating from Mr. Janjic, are sufficient in and of themselves for me to determine that joint custody is not appropriate, and I so find.

[147] I have made provisions for changing access levels in the remainder of this decision. For clarity, however, the custody Orders I have made herein are final, and are not subject to change unless a material change in circumstances can be demonstrated through a Notice to Change filed pursuant to the Rules.

c) Issues Relating to Radovan

[148] In determining how to address custody of Radovan, his best interests are clear. He has ADHD and it needs to be treated proactively. If it is properly and consistently treated, he has a good chance of success both academically and socially. If it is not properly treated, then Radovan’s chances of a successful life diminish.

[149] This was amply demonstrated by the events that took place after Skarika J.’s decision to grant interim sole custody of Radovan to Ms. Janjic in March of 2014. Radovan’s trajectory in life changed dramatically for the better once his mother was able to properly manage his medical condition.

[150] Ms. Janjic has demonstrated a continuing ability to recognize Radovan’s condition, to treat it and to manage it. She knows the importance of treating his condition with medication and other steps. Mr. Janjic is, frankly, in denial about Radovan’s condition. A parent who is in denial about a condition as serious as ADHD, and who is not willing to take the positive, proactive steps to treat that condition when they have the resources to do so, should not have custody. That parent will not protect the best interests of the child.

[151] I Order that Ms. Janjic will continue to have sole custody of Radovan, and that this will be a Final Order.

[152] I want to briefly mention a couple of the arguments that Mr. Janjic advanced in supporting a return to joint custody. First, he stated on a number of occasions that Mr. Janjic had not had a chance to work one-on-one with his son, and that this would have been of benefit to him. Based on the evidence I heard, I reject this assertion. Indeed, I am concerned that allowing Mr. Janjic a significant role in managing Radovan’s condition would cause a regression in that condition.

[153] Second, Mr. Janjic stated that the school board and Ms. Janjic wanted to transfer Radovan to a special behavioural school in the summer of 2012, and that Mr. Janjic prevented this transfer and saved Radovan. In retrospect, it is clear that this transfer to a behavioural school was unnecessary. However, it does not demonstrate that Mr. Janjic had the best interests of Radovan in mind. Indeed, the reasons for Mr. Janjic’s insistence that Radovan remain in a regular school were largely based on Mr. Janjic’s view that Radovan had been misdiagnosed and mislabelled, and that there was actually nothing wrong with him. Further, if Radovan had received the treatment in 2012 that Mr. Janjic prevented him from getting until 2014, it is quite possible that the subject of a behavioural school would never have come up. This argument does not assist Mr. Janjic in demonstrating his fitness to have custody of Radovan.

d) Issues Relating to Anica

[154] Addressing which parent should have custody of Anica is a harder issue to deal with, and requires significantly more analysis. Joint custody is, as described above, not an option for Anica. As a result, the starting point is whether the current arrangement, described above, is in Anica’s best interest. I find that it is not for a number of reasons.

[155] First, and most importantly, I have concluded that Mr. Janjic is supporting and encouraging Anica’s belief that she does not have to attend access with Ms. Janjic. The conclusions to be drawn from that conduct were clearly stated by Mossip J. in Reeves v. Reeves at paragraph 38:

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go school or want to go to the dentists or doctors. It is the responsibility of good parents to ensure that children go to school, go to doctors, and go to dentists. Good parents manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.

[156] Mr. Janjic has not acted in accordance with Anica’s best interests. Instead, he is demonstrating “irresponsibility” as defined by Mossip J. in this passage.

[157] Second, Mr. Janjic is not acting in Anica’s best interests by enabling her conduct. It is having a significant negative effect on Anica’s behaviour in other areas. As an example, the report cards I was provided demonstrate that Anica has problems making friends, following instructions and accepting authority. On the evidence, I infer that these problems have their roots in part in the way that Anica has been encouraged by Mr. Janjic to insist on having her way with respect to custody and access.

[158] I draw support for that conclusion from the note that Anica provided to her father to give to the judge. In it, she has stated that it is her choice as to whom she lives with. She prepared this note a couple of months after she had turned 9. In light of these facts, custody remaining with Mr. Janjic is less than ideal. In fact, I have grave concerns about Anica’s long term well-being and success in school if she remains in Mr. Janjic’s custody.

[159] Third, Mr. Janjic does not recognize that Anica’s conduct is an issue. Indeed, in all of the evidence he provided to me, he states that Anica has had no issues since she has come to live with him. A child who expresses a desire to commit suicide rather than spending an overnight with her mother clearly has issues. Again, Mr. Janjic is in denial about the issues that Anica has. This is especially troubling to me as he is the source of some of those issues.

[160] Fourth, Anica has a very poor relationship with her mother. This is of concern to the Court because, as noted in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R.3, contact with both parents is valuable, and the judge should ensure that this contact is maximized to the extent possible considering the best interests of the child.

[161] During the course of this trial, I noted that Ms. Janjic has a genuine desire to try to become a better parent. She has made significant mistakes in parenting both her children, which is part of the reason why we are where we are. However, she has demonstrated a willingness to learn from those mistakes, as is demonstrated by her request for assistance from the CAS. She has also demonstrated an understanding of the fact that a child needs both parents, as is witnessed by the fact that she has not taken steps to alienate Radovan from Mr. Janjic.

[162] When I weigh Anica’s best interests against the conduct of both of her parents it is clear that, in an ideal world Ms. Janjic should have sole custody of Anica as Mr. Janjic appears to have significant problems in understanding what Anica’s best interests are, and he has clearly not taken appropriate steps to ensure that those interests are being met.

[163] However, that does not end the inquiry, as the relationship between Anica and Ms. Janjic is very damaged. There are some cases such as El-Murr v. Kiameh where the Court determined that repairing a relationship between a parent and child was not something that the Courts should (or could) try to do in every case. As Katarynych J. noted at paragraph 18:

This business of addressing the child’s estrangement with his father is not “long overdue”, as the father argues. It is not the task of any clinical intervention to go ripping about in the realm of a child’s emotions with no regard for the consequences to the child. It is apparent from the evidence relating to this child’s therapy that the therapist has not addressed the issue of reunification because the child has displayed no willingness to date to go that route. He has only recently developed enough of comfort zone to be able to speak about his feelings towards his father.

[164] In order to determine my approach to Anica, I have to determine whether the relationship between Ms. Janjic and Anica can be repaired. I have concluded that it can be for the following reasons:

a. The visit with the OCL last summer resulted in Anica and her mother becoming much more comfortable with each other quickly.

b. Anica spontaneously volunteered to have a number of additional visits with her mother after the OCL assessment in early August.

c. Although there have been some setbacks in the development of this relationship, recent events suggest that they are spending time together and the amount of time is increasing.

d. Much of the damage to the relationship between Ms. Janjic and Anica has been caused by Mr. Janjic’s conduct.

e. While Ms. Janjic is responsible for some of the deterioration in her relationship with Anica, she recognizes this and recognizes that she will have to take steps to change things.

[165] As a result, it is feasible for a relationship to develop between Ms. Janjic and Anica, and granting sole custody to Ms. Janjic is an option that is possible here.

[166] I also have to consider the views and preferences expressed by Anica. Both Mr. Demeda and Ms. Varano clearly expressed Anica’s preference to live with her father and for him to have sole custody of her. Mr. Demda cogently and passionately argued for that outcome. I also had the letter from Anica addressed “Dear Judge”. I have read that letter several times.

[167] However, in considering Anica’s views, I am also mindful of the words of E. Macdonald J. in Boukema v. Boukema, where she wrote (at paragraphs 55, 59 and 62):

I do not consider that the status quo is a deciding factor in determining the issue before the court. There are much broader considerations which include the status quo but do not give it a higher consideration than other factors such as Amanda’s stated wishes, the ability of the parents to provide a stable home for Amanda, and the ability of the non-custodial parent to foster a healthy and secure relationship with the access parent.

Amanda’s stated wishes are a factor. I have been cautioned by Mr. Goldberg about placing emphasis on Amanda’s stated wishes to the exclusion of all other considerations. I have also been cautioned by Mr. Goldberg that it is not the function of the Office of the Children’s Lawyer merely to “parrot” the child’s stated wishes. This is particularly so when it is apparent that the child’s stated wishes have been influenced by one or the other parent. I am certain that Amanda would have preferred that she was never in a position so as to be forced to communicate a choice of residence. I have concerns that Amanda has done so out of her long-standing loyalty and concern for her mother’s well being.

Amanda’s views were not arrived at independently and it is for this reason that the Children’s Lawyer declined to advocate Amanda’s views without putting before the court detailed evidence of all of the factors that may have influenced these views.

[168] In these circumstances, I find that Anica’s views have not been arrived at independently. They are the result of significant efforts on the part of Mr. Janjic to alienate Anica from Ms. Janjic.

[169] In order to repair that relationship and to ensure that Anica’s best interests are met, I have two options. First, I could simply grant sole custody to Mr. Janjic and use counselling to repair the relationship with Anica. Alternatively, I could order sole custody to Ms. Janjic, direct counselling for Ms. Janjic and Anica, and implement a no contact order for a period of several months between Mr. Janjic and Anica. Neither choice is particularly attractive, and both are fraught with risk for this young girl who is torn between her parents.

[170] Mr. Demeda argued that I should not transfer custody to Ms. Janjic because that would be punishing Anica. Instead, he argued that counselling should be sufficient to repair the relationship between Anica and Ms. Janjic. I reject this argument and the counselling option for a number of reasons, including the following:

a. Mr. Janjic has been uncooperative with counselling and views it as a “threat” against Anica.

b. Mr. Janjic has put barriers up to Anica’s participating in counselling, such that it took two consent Orders before Anica actually attended at counselling

c. There is no way of controlling what Mr. Janjic says to Anica outside of counselling sessions. Given his conduct to date, I am of the view that it is likely that Mr. Janjic will attempt to subvert the counselling to the extent that he can.

[171] In the circumstances, the option of sending Anica for counselling while leaving her in Mr. Janjic’s custody is simply unworkable.

[172] Mr. Demeda attempted to distinguish the cases where custody had been reversed from this case on the basis that they all involved a finding of contempt against the parent who had de facto access. I do not accept this submission for three reasons. First, in Reeves, supra, a contempt hearing had not been held yet, so a contempt finding has not been necessary in every case. Second, in reading the cases where a contempt finding was made, it was the underlying facts (rather than any contempt findings) that were important.

[173] Finally, a finding of contempt is not necessary to reverse access for three reasons. First, the question to be determined in reversing custody is whether it is in the best interests of the child to do so. This is different from finding whether a parent is in contempt of Court Orders, although a finding of contempt against the parent who has de facto custody will be relevant to the determination of best interests. Second, contempt proceedings are not always brought, even in cases where the Court finds that the conduct of one of the parents is both inappropriate, and a violation of previous Court Orders. To require a finding of contempt to reverse custody would both put a higher burden on the parent seeking such an order, and complicate proceedings. It is something that should not be encouraged, or required. Finally, a finding of contempt is made on a criminal standard, and access is determined on a civil standard. Requiring a finding of contempt before a Court would reverse custody would mean that a Court would only reverse custody if certain facts were proven beyond a reasonable doubt.

[174] This brings me to my conclusion. Ms. Janjic is to have sole custody of Anica, and Mr. Janjic is to have a no contact order respecting both children in the terms described below for a minimum period of three months.

[175] I should explain why both children. One of Ms. Janjic’s observations in testifying was that her relationship with Anica had deteriorated because, while she was working on Radovan’s ADHD, Mr. Janjic was busy alienating Anica from her. Given Mr. Janjic’s conduct, I am concerned that he would attempt to alienate Radovan if he had significant amounts of access during the time when Ms. Janjic is working on her relationship with Anica.

[176] In the result, I Order as follows:

a. Ms. Janjic will have sole custody of Radovan and Anica on a final basis, subject to a Motion to Change only.

b. On an interim basis, Ms. Janjic, Anica and Radovan will attend counselling with Kelly Thorarinson, or with another counsellor either agreed to between Ms. Janjic and Mr. Demeda, or approved by myself.

c. Mr. Janjic shall be advised of the therapy schedule, and shall be welcome to participate in therapy. I would encourage him to do so in a meaningful way. However, Mr. Janjic shall not have any say in who the therapist is in the first instance.

d. Mr. Janjic is not to have any contact with either of the children outside of counselling in the time between the transfer of Anica as described in paragraph (j) below and the review that I will conduct pursuant to paragraph (g) below. For greater clarity, no contact means no communication by any means whether verbal, electronic or otherwise. It also means that Mr. Janjic shall not attend within 200 meters of any place where the children usually are.

e. Mr. Janjic is to provide Ms. Janjic and Mr. Demeda with a list of all activities that he has enrolled the children in as well as all of the details necessary to ensure that Ms. Janjic knows when and where those activities are taking place. The activities are to continue as scheduled. This information is to be provided in writing within 24 hours of the release of these reasons.

f. The Office of the Children’s lawyer is asked to meet with the children on a bi-weekly basis, or such other time periods as Mr. Demeda and Ms. Varano decide are appropriate in their discretion, for the next three months.

g. After three months have passed, on a date in August to be set at the release of the reasons, the parties will attend before me to review the circumstances of this case and to determine whether further Orders should be made. The parties, including the OCL, will file further Affidavits and documents outlining the steps that have been taken in the past three months and the progress that the children are making. These are to be filed with the Court Office at least a week before the hearing.

h. For clarity, the counselling notes for whatever counseling the parties participate in should be filed as well.

i. I will review the Affidavits and hear argument only from the parties at the set date. At that time, I will determine what access, if any, should be permitted to Mr. Janjic to either children, and whether a further attendance is necessary before me.

j. The OCL is to meet with the children and explain this decision to them at school today, and Anica will be released from school and/or daycare into Ms. Janjic’s custody.

k. Any of Anica’s belongings that are in Mr. Janjic’s possession are to be delivered to the Office of the Children’s lawyer by Friday May 15th, 2014. This is intended to cover small items such as clothes, books, stuffed animals and the like. It is not intended to cover any chattels.

l. Neither parent is to discuss this decision, or any other part of this case, with either of the children outside of counselling. Should the children have questions, the OCL will answer them.

m. A copy of this order will be provided to the Peel Regional Police and Halton Regional Police who will take all reasonable steps to assist in its enforcement if necessary. A copy of this order is also to be provided to the schools and the day care that the children attend.

n. The Respondent and the Office of the Children’s Lawyer do not have to obtain the approval of the Applicant to take this order out and the timelines set out in the Rules are waived.

o. Until I have completed the review in paragraph (g), and/or any other subsequent reviews all motions except urgent motions brought by Ms. Janjic or the OCL are to be returnable before me.

The Child Support Issue

[177] Mr. Janjic also seeks an adjustment of the child support retroactive to 2013 in order to account for the fact that Anica has been living with him since November of 2013 on a full time basis, and that Radovan has been living with him at least 45 per cent of the time.

[178] Mr. Janjic sought to have Donohue J. reduce the amount of child support that he was paying in June of 2013. As noted above this was dismissed as it was the issue for trial.

[179] It was clear from this Order that the child support was to continue until the trial, even though the children were spending more than 40 per cent of the time with Mr. Janjic. It was also clear from Donohue J.’s endorsement that any attempts to change the child support amounts were inappropriate. As a result, I decline to award any change on this basis.

[180] In January of 2015, Mr. Janjic allegedly lost his job. He testified that he was unemployed at the time of trial. However, I received no evidence about the circumstances of his job loss, when he lost his job, whether he resigned from employment, or whether he received a severance package. A calculation that I asked him to file contained a statement that he had severance of approximately $17,000.00 and that he would then be on unemployment until May.

[181] In any event, Mr. Janjic wrote to the Family Responsibility Office in a letter dated January 20th, 2015, and stated:

I am unemployed as of Jan 5th, 2015

My daughter leaves with me since Nov of 2013, and my son is with me over 45% of time.

On top of this I provide everything for both children.

[182] In other words, Mr. Janjic was attempting to have the Family Responsibility Office stop his child support payments and deductions, and stop accumulating his arrears. He made this request in spite of Donohue J.’s Order expressly continuing child support until trial.

[183] As I have noted elsewhere in this decision, it appears that Mr. Janjic has great difficulty in following Court Orders. Instead, he will take any step he can to advance his interests.

[184] Given that I have reversed custody, and am going to deny Mr. Janjic access to either of the children outside of counselling or supervised visits for a period of three months, Mr. Janjic’s obligation to continue to pay support continues.

[185] I turn now to the issue of whether the support should be adjusted to take into account the fact that Mr. Janjic has lost his job. I decline to make any adjustments to the support calculations at this time for the following reasons:

a. I did not have sufficient evidence to establish whether Mr. Janjic’s income has changed as a result of his unemployment. He filed a written document that was argument, but did not speak to this in any significant way in his testimony.

b. Mr. Janjic did not provide me with documentation from his former employer relating to when his employment was terminated, why it was terminated or any other information that would assist me in understanding the financial arrangements.

c. Mr. Janjic is in receipt of severance pay, and as I understand it, employee benefits are continuing until after the release of this decision. Therefore, it is difficult to know whether Mr. Janjic’s income has changed.

d. It is possible that Mr. Janjic will obtain alternate employment shortly.

[186] After a month has passed from the release of this decision, Mr. Janjic is free to seek a variation in the amount of child support being paid. Such variation will like any other non-urgent motion in this matter, come before me. An Affidavit must be filed from Mr. Janjic addressing the points outlined above, detailing his efforts to find work and outlining any work he has found and the income from that work. His severance package and any offer letters must be attached to that document. If such a motion is brought, Ms. Janjic is also directed to file her 2014 Notice of Assessment if she has received it.

[187] Finally, there is the issue of costs. I will consider the question of the costs of this case once I have conducted the three month review described above.

LeMay J.

Released: May 11, 2015

CITATION: Janjic v. Janjic, 2015 ONSC 2880

COURT FILE NO.: 1764/10

DATE: 2015 05 11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DUSKO JANJIC
Applicant

– and –

JELENA JANJIC
Respondent

REASONS FOR JUDGMENT

LEMAY J.

Released: May 11,2015