J.L. v. C.L., 2015 ONSC 3650

CITATION: L. v. L., 2015 ONSC 3650

BARRIE COURT FILE NO.: FC-13-292-00

DATE: 20150605

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

J.L. Applicant

– and –

C.L. Respondent

Applicant on his own behalf

Martin J. Prost, for the Respondent

HEARD: May 19-22, June 4, 2015

EBERHARD J.

[1] This is judgment after trial in the family court of the Superior Court of Justice.

[2] In family court, where matters of parenting, child support and division of property are determined, it is axiomatic that people, once a couple for however long, separated. There is always a story. Every couple in this court environment separated somehow and for some combination of reasons. The business of the court is to move on from that reality and assist in, or impose, a resolution to the issues of parenting, child support and division of property. Rarely is it helpful in that effort, to dwell on how the couple separated or for what combination of reasons.

[3] Nevertheless, the parties in the present trial chose to focus on the combination of reasons for their separation and their subsequent conduct arising from the continuation of their sensibilities that resulted from the combination of reasons they separated. Because of their focus, and only because that is where their understanding of the purpose of trial has taken them, I will give judgement on their claims and accusations. The determination of their relative fault for the current continuing dilemma is of almost no value to its resolution except that the assignment of fault has been allowed to infect the innocent children they have parented; and the resistance to a change in focus persuades this court that steps for resolution cannot be left as a matter of good will. There must be structure to require the steps that the parents have proven they will not take unless compelled.

[4] It is also axiomatic, in the administration of justice in our democratic land, that judgment is to be founded on the evidence placed before the court by the parties. Despite my several expressions of the need for evidence to support the proposals put forward as solutions, and despite my intrusion into the evidence gathering by calling a witness on my own motion, the focus of the parties on the fault of the other for the conflict and the present dilemma blinded them to the need to call evidence which would allow me to craft a solution based on information about the tools available.

[5] The lack of evidence also impacted on the nature of the findings they seek. In testimony, the father and his witnesses were quick to assert labels such as mental illness and parental alienation and claim an abusive cruelty in the mother’s actions and motivations. The mother testified about the father’s irresponsible personality, insensitivity and drinking all tinged with innuendo of domestic abuse. I am asked to judge. When I do, observers will protest that I am neither a psychologist nor a psychic. What I am is a mandated third party observer who has, trained in my role, seen a broad continuum of parenting technique, parental conflict and the consequences of technique and conflict on children. After imposition of the wisdom of other judicial officers of this court through a mature conferencing process that is designed to introduce the best practices we can yet know for reducing conflict and improving parenting by separated parents, a Trial Judge is all that remains to provide a resolution that has so far eluded the parents.

[6] The mature conferencing process of the court has included contributions from a host of resources that constitute almost all the tools available to help parents get beyond their conflict and learn to care for their children in separate autonomous households each meeting the needs of the boys while in their care, offering love, security and unstressed family activity. Since the Application was brought in February 2013 these tried and trusted methods, among others, have been put in place:

(a) A fixed schedule for access to reduce the need for negotiation in an atmosphere of conflict;

(b) Terms of bail, terms of probation, court orders to eliminate direct contact that has led to conflict;

(c) Successive orders to clarify who may attend the children’s activities;

(d) Recommendation of Family Wizard as a means of communication, particularly since direct contact has been frequently complicated by orders from successive criminal proceedings;

(e) Third party facilitation of access exchanges;

(f) CAS monitoring as a result of police concerns;

(g) CAS investigation of specific allegations;

(h) CAS discussions about programs to deal with parenting and anger management;

(i) CAS acting as third party to communicate proposals of third parties to facilitate access exchange and reconciliation counselling;

(j) CAS facilitation of access exchanges;

(k) CAS receiving evidence of the children’s wishes as to access after the OCL involvement was completed and no longer available;

(l) OCL interim investigation with recommendations allowing parties to demonstrate improvement if they could;

(m) OCL final investigation reflecting minimally adequate improvement and the mother’s improved ability to verbalize necessary changes;

(n) Support for the mother’s mental health dealing with an August 2012, post separation miscarriage, her ongoing distress upon the breakdown of the marital relationship and criminal proceedings;

(o) An involuntary one night admission of the mother for mental health concerns in 2012;

(p) Psychiatric evaluation, diagnosis and medications support for situational depression 2012 and updated report in 2015;

(q) Counselling for the mother;

(r) Counselling for the father from Paula Carter in lieu of PARS which was unavailable for anger management;

(s) Reconciliation counselling for the boys in relation to the father terminated by Paula Carter as unlikely to succeed until the parents could get their conflict under control

(t) Rainbows for J.T.L..

[7] Such interventions, if needed at all, are often more than adequate to break the cycle of conflict, provide a structure for parenting time to be enjoyed with both parents, and allow a settling in to new patterns of interaction with children spending time in both households and deciding for themselves, based on the own experience and growing maturity, who does right by them. All children do this, even in intact homes. As parents we can only hope that our children judge us to have adequately met their various typical and atypical needs. Ultimately, their judgment is the only one that matters. In the meantime, it is our duty as parents, and as society (represented by the court), insofar as it is safe and minimally adequate, to remove the impediments created by parental conflict to this natural process and provide opportunity for children to know that they are wanted and loved in both households.

[8] This trial has demonstrated colourfully how the impediments came into being for this family. Now must begin the court’s articulation of each parent’s responsibility for the impediments, the changes that must occur, and because of these parents’ demonstrated inability to make changes that have been recommended by intervening professionals, and even court ordered, I must attempt to craft a method of timely response and consequence if either parent fails to comply or cannot navigate the requirements of my order.

[9] Rather than detail in every instance the reasons for my findings on each disputed issue, I will begin by identifying, in a general way, which witnesses and sources of information shaped my judgment.

(a) The Witnesses

[10] Naturally, the testimony of the Applicant Father and the Respondent Mother were of greatest significance. That is not to say I was prepared to accept the testimony of one over the other as they described their versions of events that they both described. Rather, I was able to assess them in the witness box in the context of the whole of the evidence and make findings on where each of them falls in the continuum of parenting skill and parental conflict.

[11] The evidence of the OCL Linda Bleau was of great assistance. Her interim and final report addressed the points of tension between the parties and described observed parenting fairly. She recorded information she collected from family and friends involved with the children or the dispute and those reports accurately reflected evidence I heard from those individuals who also appeared before me. OCL Beau collected the insights of other professionals who have been involved with this family which the parties utterly failed to do but her summaries provided opportunity for the parties to cross-examine the OCL on what she took from these insights. She presented helpful recommendations. Of particular importance for me was the opportunity to assess the response of each parent to the interim recommendations[^2] and where that led the OCL by the time of her final recommendations.[^3] It was apparent that at the time of the updated investigation in 2014, the mother had learned to express the principles of the necessary changes she needed to make for the boys well-being and had acted to put some of these in place.

[12] I was then able to observe the reaction of the OCL when she learned, in the witness stand, that the boys have not had access with their father since November 2014. This witness, who I found insightful and trustworthy, was genuinely shocked and dismayed that the boys had been thus deprived of access. She well knew that J.T.L. oftimes declared he did not want to go for access but she had ample first hand evidence that despite that expression of reluctance, once engaged in an access visit, J.T.L. flourished in the pleasure of it. The authenticity of her response, based on her thorough assessment of this family’s circumstances, demonstrated how naïve it was for the CAS to accept J.T.L.’s reluctance in November 2014 at face value as providing sufficient reason to suspend access; to have encouraged the children, through the Respondent Mother, to put their accusations in writing; to have stopped working with the circumstances then on the basis of a belief that children should not be forced; to have let subsequent months go by, change workers, fail to follow up at a time when they were the only resource available to mend the rift.

[13] The OCL reports, containing detailed summaries of the observations of others, went unchallenged except in a few minor specifics, are the best evidence of the narrative around this family, there being an absence otherwise of objective indicators.

[14] Another witness whose testimony assisted me was Michelle King. Ms. King had several perspectives from which to comment:

She was the daycare provider during the breakup and early attempts to organise access arrangements.

She was a confidant to the mother.

She was the first third party facilitator for exchanges.

She was a hockey mom with the Respondent.

Her son was close friends with J.T.L..

[15] Life and judicial experience allows me to recognize a skilled caregiver, the kind of person responsible parents search for long and hard to care for their children while they must work. These persons, women mostly, are worth their weight in gold. They know their young charges inside and out and they are much beloved by the kids they look after.

[16] The Respondent Mother burned through that significant array of relationship without qualm. Here is an objective, kindly, caring, child-oriented ally whom the mother’s rage turned on and alienated. Here is objective evidence of the wild, profane, devastating, unreasonable fury the mother displays when her ideal is not met. The fact that by her rage she deprived J.T.L. not only of Michelle, an autonomous adult whom he loved, but his buddy, an innocent child, shows that the Respondent Mother has not understood that she is injuring J.T.L. by her conduct. In this respect, I find the Respondent Mother renders her children in need of protection. [^1]

[17] The mother of the Applicant Father and the mother of his partner testified. At this time, they are part of the problem not part of the solution because they have gone beyond the point where they can see any good in the Respondent Mother. Had their evidence been without the context supplied by the other evidence in the case, including the Respondent Mother’s own testimony and her in court reaction to theirs, I might have rejected their vitriol against the mother as bias. But, as it turns out, most of what they reported the Respondent Mother to have done, (to be spliced away from their expression of opinion which did not assist me) was confirmed by her evidence. It was astonishing in the Respondent Mother’s testimony with a refined diction and clarity commensurate with her education and respected position as an emergency department nurse, (recently promoted to charge nurse in some shifts,) to hear her describe her own appalling conduct of threatening, intimidating and castigating which she methodically pursued to get her way. She often was describing some feeling of hurt or anger she was experiencing from her reaction to the family breakdown and would follow up with “so, I ….” followed the Applicant Father to wherever he was and ferociously confronted him, or gathered blackmail on his partner’s family, or left profane threats in text messages or called the hockey association or…. it goes on and on…..as if these were the most natural responses to her feelings. By her repeated use of the word “so” she maintained that her extravagant and outrageous conduct was somehow justified. Not so. I find that though the Respondent Mother learned to express appropriate principles of conduct she did not, at the same time learn to act appropriately.

[18] This finding was supported by the in court reaction of the Respondent Mother to the testimony being given by the Applicant Father and witnesses called by him. Hearing about conduct that she later confirmed in her own testimony, she variously stared at the witnesses furiously, conveyed denial in her body language, shouted out from time to time and, most worryingly, wept off and on for most of it.

[19] I find this weeping particularly worrisome because it transmits, more effectively than any words ever could, how distressed the Respondent Mother is at the thought of the children being out of her care for periods when they are scheduled to be with their father. All the evidence taken together supports a finding that it is this open distress and only secondarily the open warfare it generates, that makes J.T.L. reluctant to attend access with his father.

[20] It is further worrisome because this litigation has been ongoing since February 2013. The above noted interventions and resources have been ongoing. Most significantly the mother has had psychiatric assessment for depression and ongoing counselling. Despite the passage of time, the support, the several interventions and counselling, the mother’s distress and fury are raw, profound and, at least potentially, injurious in their destructive immensity.

[21] I have turned to the psychiatric assessment of Dr. Livermore. It is in the form of a letter to counsel dated March 2, 2015 and refers to the earlier assessment in October 2012 as well as a follow up in May 2014. He does not repeat the history he accepted as the basis for his 2012 diagnosis citing that he did so “extensively” in the 2012 report that is not in evidence before me. He summarizes :

.. I had previously seen her back in 2012 at which point in time she was clearly suffering from major depressive disorder in addition to her other primary Axis 1 disorders. At this point in time, I would say that the major depression has largely resolved.

She still has elements of posttraumatic stress disorder and this seemed to be worsened in times of high stress. She additionally continues to deal with an adjustment disorder with disturbance of mood and conduct which is best described as episodic and heavily related to any difficult interactions she has had with her ex-husband.

[22] Dr. Livermore does recount the history he accepted for the second assessment including the hockey stick incident and cites approvingly the steps the Respondent Mother told him she had accomplished. He reports:

On mental status examination, the patient presents as a pleasant 35-ycar-oid woman who appears approximately her stated age. She is of somewhat serious demeanor but is easily engaged in the interview process. She was rather calm but did become tearful at times describing the difficulties that she has had. She is obviously quite frustrated with the interpersonal difficulties she has experienced with her husband and the legal issues that have stemmed from this. She admits to feeling rather embarrassed about past events and admits to losing control of her temper with her ex-husband in the parking lot of Georgian Bay General Hospital back in November 2013. Other than this, there have no clear behavioral issues and she has no other interpersonal difficulties to speak of. She denies any present difficulties with mood, acknowledging that she does feel down at times when she thinks about her current circumstances. Otherwise, there is no evidence of suicidal ideation or homicidal ideation. Her speech was of normal rate, rhythm, and volume and there are no abnormalities of motor movement. There were no disturbance of perception and her thought process was entirely within normal limits. The feelings of guilt and remorse over prior actions is contrasted slightly by her frustration that her ex-husband has not been reprimanded in any significant way for his role in the way things have played out. Despite this, she notes no interest in having any further communication with him if she is able to avoid it. She has good insight into her difficulties and seems to be making appropriate changes in her life to be successful in moving forward from that difficult incident. There are ongoing symptoms of posttraumatic stress disorder that seem to be worsened in the context of heightened stress. At this point, it does not seem that she is overly affected by them to the degree that she needs to be treated with any psychotropic medication. She seems to be of good intelligence, though no formal intelligence testing was done at this time. There was some tearfulness in the interview today but this was appropriate given the difficult content that was being discussed. Otherwise, she showed a reasonable range of affect and was appreciative of time spent discussing her difficulties today. …

…Otherwise, the patient has taken great strides to moving forward in her life and seems to have made some very positive changes, albeit she continues to face stressful circumstances given the possible exposure to friends of her ex or people connected to her ex-husband’s new girlfriend. She has limited herself socially as a result of this but otherwise seems to be caring very well for her two young children and seems to have their best interests in mind.

At this point in time, I do not believe that her ability to care for her children is compromised in any way and certainly not as a result of any prominent mental health issue. I do not believe that she requires antidepressant therapy at this point in time nor does she present with any evidence of a bipolar or psychotic illness. Certainly, any future contact with her ex-husband is ill advised but my impression is that she has put her children first with respect to her priorities and has been doing her best to care for them. She notes previous occasions where her eldest son has attempted to run away when he is staying with their father and it has been difficult for her to grant access to the kids without logistical difficulties such as transfers of care.

Going forward, I would have absolutely no concerns for the children to be largely in her custody though some attention and restrictions must be in place around the issue of transfers given the volatility of the relationship between Ms. C.L. and her ex-husband. Otherwise, I do not believe that the safety or well-being of the children is at all in jeopardy while they are under her care….[my emphasis]

[23] I further noted in his list of diagnostic impression reference not only to the aforementioned “adjustment disorder with disturbance of mood and conduct – chronic Posttraumatic stress disorder”, but also “mixed personality disorder with obsessive compulsive and avoidant personality traits”

[24] It is axiomatic that what an expert assumes as a fact for the purpose of offering his opinion may be the same or different from what the trier of fact later finds as facts from the evidence introduced in this case. To the extent that the facts I find are different from the facts assumed by the expert in reaching his conclusion, the expert’s opinion less reliable in helping me decide this case.

[25] The history recounted by the expert as to what the Respondent Mother told him is very similar to her testimony in this court. Although Dr. Livermore acknowledges in relation to the hockey stick incident “Certainly I am only hearing one side of the situation but upon hearing the patient recount the events that occurred that day, I can certainly understand how she reacted the way she did, even though I do not necessarily condone her behaviour” he then goes on to list the same justifications she gave in court.

[26] It is because of this that our conclusions part. Although I readily accept the diagnosis as consistent, from common sense perspective, with the evidence and presentation of the Respondent Mother, I reject most of the self-reported minimizing of responsibility and self-reported improvement in her attitude and conduct upon which opinion of her current improved mental status was based. I find as a fact that the expert was deprived of the evidence and thus erred in his conclusion that “Other than this, there have no clear behavioral issues and she has no other interpersonal difficulties to speak of”. She clearly does and this trial has spoken of them. Her behaviour is repeatedly provocative and she isolates her children by destroying relationships important to them by her provocative, aggressive, obsessively determined to pursue every perceived wrong escalation of conflict.

[27] This is not to say I do not understand why she is sad, furious and physical. The Applicant Father also participated in the conflict. I find his participation, like hers, did become physical. I find he did show elements of poor judgment around collateral events such as leaving an accident scene, lack of clarity in the separation period, insensitive timing of exposing the boys to his repartnering, failure to adjust to the changing needs of the boys including a professional reassurance around alcohol issues the boys have articulated, and inexperience in discipline strategies in the face of J.T.L.’s defiance.

[28] The difference in their responsibility for the duration of the conflict is this: the Respondent Mother rigidly holds to a set of values. The values themselves are fine. It is her inability to tolerate any departure from her personally imposed standards that escalates small problems into the level of conflict that has developed between herself and the Applicant Father along with other family and friends who have had importance in the boys’ lives. Many parents are inexperienced, insensitive and a little rougher than they should be without being found unfit to parent. The Applicant Father’s deficits are pedestrian by which I mean ordinary and commonplace in the family court environment. His deficits can be addressed by instruction and court order. None rise to protection concerns except his participation in the conflict which, I find as a fact, he tries to walk away from. The Respondent Mother, in contrast, runs forward to pursue conflict with all speed and vigour.

[29] Although this was apparent from her own examination in chief, it played out before me in cross-examination of the Respondent Mother by the Applicant Father. Consistent with the responsibility of a Trial Judge where a self-represented party is cross-examining the opposite party, I instructed him on the civility required and intervened where the inelegant questions appeared too argumentative. He complied as well as his inexperience could take him in a cross-examination that was far from substantively sufficient. By way of contrast, after permitting it to the limit of tolerance, I was forced to admonish the Respondent Mother under cross-examination to answer the question asked and refrain from lengthy speeches. She criticized, bullied and provoked him with every response, always on the attack. It looked very much like the encounters the Applicant Father and other witnesses had described.

[30] I find, on all the evidence, the Respondent Mother’s obsessive insistence on her own parental values creates degree of ongoing dispute that has and is causing injury to the boys. J.T.L. is not learning skills of tolerance and flexibility. He is learning, not to stand up for himself, but to respond to stress by confrontation. I find the Respondent Mother’s escalation of every nuance of disagreement into a full out war abusive to the point that the children are in need of protection.

[31] This is not a child welfare case. I find the children are in need of protection. I do not have the tools available to me under the Child and Family Services Act.

[32] I do, however, have the evidence of the current CAS worker who has recently received the file, transferred from another basically due to workload preventing her from follow up to repair the cessation of access in November 2014.

[33] Kevin McCarthy was called to the witness stand of the court’s own motion and cross examination by both parties was permitted.

[34] Mr McCarthy hasn’t really done much yet though significant months have passed. He is aware of a proposal to have Paula Carter provide reconciliation counselling. He is aware the Applicant Father has made preliminary arrangements. He has not yet provided the communication link the CAS had been playing to arrange firm dates for the commencement of the sessions which the boys are prepared to attend on terms the parents are willing to accommodate.

[35] He confirmed that if there was a failure to get counselling for the boys, the CAS would potentially proceed with a supervision order. Asked what parental conflict might tip the scales to CAS intervention, he responded that an incident or if the boys became withdrawn or depressed the CAS could intervene by seeking a supervision order. He expressed a need for counselling specifically for children who have witnessed violence to something much more specialized.

[36] I was told from counsel table that Paula Carter is prepared to resume reconciliation counselling but will not consent to a role as parenting coach or arbitrator.

[37] This resulted in an interruption of the trial for the parties to find a willing professional to play such a role. They brought me a few ideas but no firm plan. On a break I contacted one of the three suggested lawyers (all known to me) who will act in the role of parenting coaches in Simcoe County and determined her availability, her costs, and her willingness.

[38] My intention is to craft an order for reconciliation counselling and strict terms within which the parenting coach can direct the parties. The CAS must necessarily accept that orders made after trial provides a basis in findings of fact that relieve them of speculation. These reasons for judgment are to be sent to counsel for the Simcoe County CAS to be sure they will be brought to the attention of and explained to the supervisors there. The CAS shall recognize that non-compliance with a court order, particularly where professionals are put in place to assist the parties in recognizing how the order impacts on situations that arise, is not in the adjudicated best interests of the children. The CAS shall recognize a need for supervision with the consequences for noncompliance available under the Child and Family Services Act. Specifically, though the disclosures and wishes of a 7 and 9 year old have been and will be taken into account, an expression of unwillingness or a statement of fact by these children cannot be taken at face value to support noncompliance with the order by the Respondent Mother. As expressed by the OCL, the boys have aligned with the Respondent Mother as the safe place in the storm. The goal is to reduce the storm, promote their sense of safety outside of her care and allow them to learn flexibility and serenity in the love which both parents offer.

(b) Overview

[39] The foregoing completes my discussion of the fault issues that were the focus of the parties in this litigation. The destructive force of the conflict could not be more clear. I move now to a discussion of a plan to address the best interests of the children which should always have been the focus.

[40] I face a wrenching dilemma. From a litigation standpoint it is abhorrent to implement the request of the party who has created the problem. Having said that I find it is the unrelenting insistence of the mother on her methods and values and her pursuit of confrontation rather than considered resolutions that has resulted in my finding that the children are in need of protection, it will appear to the father and his team of frustrated and disgusted supporters inconsistent to rule that the children should remain in the primary care of the mother. That is my ruling.

[41] The first reason, almost overlooked in this proceeding, is that the mother has provided excellent care for the boys since birth, during the chaos of separation and to the present. She provides well for their shelter, nutrition, cultural, health and education needs and the like. She is current with child related issues in the community. She is discerning of the boys strengths and personality. She takes care of the business of parenting very well.

[42] This is not to say that the Applicant Father and Erinn Brady could not come up to speed. They simply have not been in a position to strengthen and demonstrate these skills. That is the reality of it, unfortunate though it be.

[43] The OCL Bleau recommended sole custody to the mother. Under cross-examination by the father she explained why shared parenting would not work: the profound level of adult conflict. She observed that J.T.L.’s personality couldn’t handle shared parenting, not only because of the loyalty bond to his mother but because of the degree of adult conflict which overwhelms all the other factors.

[44] The juxtaposition of the interim OCL report and the final one demonstrates the expectation that once the parents gained insight into the impact of their conflict they would have opportunity to remedy their deficits. In February 2014 Ms. Bleau recommended a clear schedule for parenting time by the father, adult counselling to address their personal issues and anger management. She highlighted that the father needed to be sensitive to the boy’s adjustment to his new partner while he repaired his interrupted relationship with the boys, and she highlighted the mother’s need for psychiatric intervention. She promoted reconciliation counselling to assist the relationship and bond between father and sons and she enlisted the CAS to engage the parties in conferencing to ameliorate protection concerns.

[45] These were wise strategies.

[46] Both parents believe they followed the recommendations for their individual insight and improvement. Yet the father’s lack of sensitivity to express requests from the boys for approaches that would help remove impediments to their relationship continues. The mother talks the talk of insight and serenity but she does not walk the walk. Conflict continues unabated. The level of conflict caused the very experienced Paula Carter to suspend reconciliation counselling as useless while the level of conflict persists. The boys like Paula, they feel comfortable going back to see her. The father availed himself of further counselling individually from her. The mother has no complaint about Paula Carter. Yet, the goals of reconciliation counselling remained unfulfilled when the OCL next investigated.

[47] The final OCL report in August 2014 accepted the inescapable reality that the wise strategies were insufficient to achieve a peace necessary to the ideal of co-parenting by both mom and dad in separated households. There can be no illusion that contact between the parents can be controlled to eliminate bitter outburst. There can be no illusion that the parents, unassisted, could engage in civil discussion of issues relating to the boys’ medical, educational, cultural and emotional needs. A final strategy must be imposed to relieve the boys of the unending and injurious conflict.

[48] This sort of dilemma is oftimes discussed in scholarly literature, jurisprudence and most especially social media, as parental alienation. The father asserts this label. The CAS declines to use it. The OCL did not use it. I mention it now to respond to the father’s view that the court should act upon a finding of parental alienation in this case by imposing shared custody. He references literature and jurisprudence in support. I reject the label of parental alienation in this case and I reject the approach of removing children from the care of the parent with whom they are aligned as a punishment for that parent. Nor do I find it would effectively promote the boys’ best interests though I see the damage of the current conflict.

[49] I am no apologist for the mother’s role in fuelling the conflict but I respond with the observation that the flip side of parental alienation by the parent with whom the children have aligned is the conduct of the estranged parent which, for their own reasons, the children have found troubling. Their attitudes may not always be reasonable by grown up analysis, their sense of justice may not accord with the laws of the land. But such attitudes cannot be defeated by judicial rulings. They can be mended sometimes by sensitive, perhaps assisted, interaction in demonstrably safe circumstances.

[50] In the present case there was enough observed by the boys, particularly J.T.L. because of his age, that could account for the seeds of disapproval of their father. Although adult, even judicial, analysis may not result in blaming the father, there was considerable confusion during the painful process of separation, considerable violence actually observed, considerable tension around exchanges for visits resulting even in their mother being taken to jail, early introduction of a rival for their mother, frustrated reaction to J.T.L.’s testing misbehaviour.

[51] The reaction of the boys to these problems is understandable without influence by the mother. Add to it her unmasked distress, her sharing information about the process, her copious tears and her struggles to cope as a single parent as they watched, that could not but entrench those reactions.

[52] In my professional experience, mending of relationship between a father who has, for good reason or bad, left a mother in this condition, and an intelligent sensitive boy who wishes to be for his mother the knight in shining armour, is a prolonged and delicate challenge. At a certain point in the child’s development into adolescence and beyond, it becomes increasingly unlikely. And then, in my professional experience, we eventually find a grown man with unresolved childhood injury.

[53] So, we need to get at it while the boys, J.T.L. in particular, will still accept parenting.

[54] The simple key to success, illusive enough in itself, is the resumption of a regular and certain parenting schedule so that the Applicant Father has opportunity to interact with the boys and allow them to form their own impressions, as we all have about our parents, that are partly positive, partly not so good. Perfection is not required.

[55] Because the Respondent Mother has previously found or created various excuses for denying access, based on her own judgment of the Applicant Father’s compliance, we need to take that decision out of her hands. There should be no direct contact between the parents for access exchange as their conflict has repeatedly given rise to the exchange failing.

[56] Because the conflict has persisted and previous orders of have not been followed we need to create a process for nimble response to non-compliance.

[57] Finally, because the Respondent Mother has taken unto herself all the decision making about the children, she has left little room for the father to contribute what he has to offer to enhance their life experience beyond the parameters of their mother’s decisions. I intend to carve out for him a decision-making role to guard against the irrelevance that the mother would assign him.

(c) Parenting Schedule

[58] The orders over the years have adequately addressed this but were not followed. It must be emphasized that the schedule once imposed, may not be varied except by prior agreement in writing by the parents. While eventual amiable flexibility is encouraged, the parties have not yet achieved any semblance of that and it is important to establish a pattern the boys understand before there is deviation from the pattern. If there is no agreement, the schedule as ordered MUST be followed. No agreement in writing except as recorded in Family Wizard or formal signed agreement on paper in duplicate will suffice.

[59] The interim consent order currently in force, date February, 27, 2014 provides:

1. The J.L.J.L. will have access to the children J.T.L. born […] 2005 and B.E.L. born […]2008 as follows:

(a) Each Wednesday from after school until 7:00 pm;

(b) Every other weekend from Friday after school until Monday morning to school beginning 28 February 2014.

[60] The OCL final report, along with fixed pattern holiday access, recommends:

2. Mr. J.L. should have access on alternate weekends with a pick up from school at school dismissal on Friday and a return to school on the next scheduled school day. Weekends should include any holidays attached thereto.

[61] Although the Applicant Father seeks week about in this trial, he certainly does not want to lose midweek access. The Respondent Mother testifies about the boys’ busy schedule of activities and cites examples of the father not properly facilitating the activities, failing to show or getting lost.

[62] I find that the pattern of alternate weekends, including holidays attached thereto should be continued.

[63] Once a pattern of the father’s regular access has been recommenced, (as determined by the process described in paragraph 75) I have no reason to differ from the OCL’s suggested holiday access and so order:

3. Mr. J.L. should have the boys for half of the Christmas holidays. Mr. J.L. should have the boys for the entire March Break on odd years and Ms. C.L. should have the boys for the entire March Break on all even years.

4. Mr. J.L. should have the children in his care on Christmas Day at noon to Boxing Day at 7:00 p.m.

5. Mr. J.L. should have the children in his care every Father’s Day from 9:00a.m. to 6:00p.m. Ms. C.L. should have the children in her care every Mother’s day from 9:00 a.m.

[64] The parties disagreed with the OCL recommendation for summer access based on different interpretations of what she intended by:

6. Mr. J.L. should have the children in his care for two non-consecutive weeks in July and in August.

[65] In testimony OCL Bleau explained that she meant one week in July and one week in August, not to be consecutive.

[66] I find this to be a comparatively modest summer schedule for parenting opportunity that is not impeded by school schedules. Both parents will have to be respectful of the boys’ activity schedule because no child likes to miss important games when they are involved with team sport. But no family is expected to forego summer vacation entirely to accommodate team responsibilities.

[67] Once a pattern of the father’s regular access has been recommenced, (as determined by the process described in paragraph 75), either parent may have one week in July and one week in August for vacations uninterrupted by the midweek parenting schedule to include the weekend that parent would have care of the boys by the schedule but not including the weekend the other parent would have the schedule. During those weeks only the parent with care of the children may choose not to facilitate attendance at team sporting events.

[68] The parent with care of the children shall facilitate attendance at team sporting events as set out in paragraphs 93-99.

[69] Life experience tells me that families often plan summer holidays that exceed 7 days. In 2016 and thereafter the parties are encouraged to negotiate by Family Wizard such longer period for uninterrupted summer vacation with the duration of the extension being also granted to the other parent added to their vacation week. If no prior agreement is reached in writing, there shall be no variation as aforesaid.

[70] The father shall select the week he wants in August 2015 and notify the mother by June 15, 2015 on Family Wizard. The mother shall select the week in July 2015 she wants and notify the father by June 15, 2015 on Family Wizard. The father shall then select the week he wants in July 2015 and the mother shall select the week she wants in August and notify the other by June 22, 2015 on Family Wizard.

(d) Decisions

[71] The parties have agreed to reconciliation therapy with Paula Carter. The first session for both boys is Thursday June 11, 2015 at noon. The mother shall remain at Mr. Prost’s office next door to be available at Ms. Carter’s request only. Bearing in mind the discretion to delay is 6 weeks, Ms. Carter may schedule the further sessions to maximize the effectiveness of the effort so the boys will feel ready for the expansion of contact to the extent ordered in the parenting schedule herein. Payment of the $120/ hour fee for the reconciliation counsellor shall be first from benefit plans available to either of the parties and the remainder from the parties in the ratio for section 7 expenses calculated on the basis of income. Since plan information is not readily available the parties will each take $120 to Paula Carter before the first session. Failure by either party to pay will be addressed by adding to or deducting from child support payments or section 7 expenses otherwise payable.

[72] The parties have agreed to parent coaching and I have ascertained that one of those suggested, Debora Lyons in Stayner, is available and can offer appointments in the week of June 8, 2015 to begin. I direct the parties to each make their separate first appointment to occur before June 12, 2015. The retainer of $2,400 is directed to be paid, in priority to all other payments, from the proceeds of sale of the matrimonial home now being held in trust and William Taws, of the law firm of Deacon Taws may take this judgment as his full authority, without signature or consent of the parties, to forward $2,400 to Debora Lyons, in Trust (lyonsfamilylaw@gmail.com) as a retainer for these services. Fees are $195 per month each and the service shall continue until there is no further need as determined by the parenting coach, written agreement signed by both parties or further court order. Failure by either party to pay will be addressed by adding to or deducting from child support payments or section 7 expenses otherwise payable.

[73] Both reconciliation counsellors and parenting coaches must work within the boundaries of my order. Regrettably I received no evidence as to the tools within the order that would assist in their respective tasks, so I must craft on my own the tools I think will assist.

[74] My purpose is to set out the parenting schedule as I have done in preceding section of my order. I have said neither parent can vary the schedule without prior agreement in writing. My purpose is to promote a trusting relationship between the boys and Paula Carter so that they can comfortably reach out to her about issues relating to compliance with the parenting schedule so that they have an adult who is not their mother (or father) to express their concerns. This is an important tool as the children should not be without means to express their concerns and fears but it must be in the context of a trust relationship so authentic child-like thoughts and views emerge rather than finessed disclosures or child-driving-the-bus demands.

[75] Recognizing that there has been a hiatus in contact between the father and the boys; that J.T.L. in particular has expressed conditions for his willingness to attend reconciliation counselling; that the pace of progress in counselling cannot be judged in advance; that the schedule of the reconciliation counselor and the parenting coach after next week is not in evidence; I order that the implementation of the parenting schedule, with staged or full recommencement, may be delayed at the discretion of the reconciliation counsellor for a period of no more than 6 weeks from the release of this order. By permitting this delay I am creating means to respond to the child’s expressions of concern by giving the parents a fully considered opportunity to fix problem but avoiding a knee jerk reaction that allows the child to believe he is “driving the bus”. They must be parented.

[76] Thereafter, once the parenting schedule is implemented, the parenting coach shall assist the parents in implementation, monitor compliance, refer the children back to the reconciliation counsellor if it appears the children have concerns and facilitate funding from the parents as set out in paragraphs 71 and 72 (and advise FRO where necessary) to accomplish these purposes.

[77] In the event of non-compliance, the parenting coach shall refer the evidence to the CAS, attention legal counsel and Kevin McCarthy or his successor, who shall consider whether the children continue to be in need of protection as found in this judgment. If so, the CAS shall consider application for a supervision order or be prepared to indicate to the court why that was not done, at the request of the presiding judge who may be addressing this CLRA file.

[78] The Applicant Father shall supply proof to the parenting coach that he has arranged for assessment and treatment if necessary for alcohol or substance abuse. The Respondent Mother shall supply proof to the parenting coach that she has shown these reasons for judgment to her counsellor and is continuing counselling to address the mother’s deficits as found by this judgment. Neither parent will use or permit discipline by physical force. There is no order relating to Erinn Brady’s involvement with the boys as the reconciliation counsellor will be negotiating the boundaries in accordance with the boy’s needs and the parenting coach will monitor compliance

(e) Decision making

[79] The Respondent Mother seeks sole custody. The Applicant Father seeks joint custody and week about shared parenting.

[80] Generally I put little stock into the label of sole vs joint custody because it is more useful to specify rights and responsibilities in relation to decision making for the children. Parents are often quite concerned about the symbolic importance of sole vs. joint. The court less so in most instances.

[81] However, in the present case I intend to order joint custody for its symbolic value

[82] In that regard, it is useful to distinguish the matter of sole vs joint custody from shared custody which refers to a parenting schedule which has a child in the care of each parent on a relatively equal basis, a concept that is reflected by the marker of 40% of the child’s time in section 9 of the Child Support Guidelines. There can be joint custody without shared parenting. That may signal, among other things, that the parents each retain rights and responsibilities for decision-making relating to the child.

[83] One strategy sometimes used to define the rights and responsibilities is to give one parent final decision-making on one significant aspect of the child’s needs while giving the other parent final decision-making on a different significant aspect of the child’s needs.

[84] For reasons explained by the OCL and previously addressed in these reasons, shared custody is not being ordered in this judgment. The mother shall have primary care in accordance with the parenting schedule.

[85] Final decision –making does not mean that the other parent is shut out. Both parents have the right to information on all matters relating to the well-being of the children. Notice should be given of all important or contentious decisions, or matters involving significant shared expense, for discussion with a view to reaching an agreed decision. If, after discussion, there is still disagreement, then the parent with the right and responsibility for final decision making shall have the final say subject only to further court order.

[86] I find it necessary to give final say to one parent in this case as important decisions might otherwise be unreasonably delayed. In this case they will have, for so long as it is necessary, a parenting coach to assist them in determining which type of issues are significant enough to require discussion and to assist them with the discussion. They have much learning to do about how to raise, debate and resolve important issues for their children.

[87] Neither parent will have final decision –making for mobility. Rather, a parent who proposes to relocate must give 90 days’ notice if the move would impact the parenting schedule or school placement, including an increase in transportation time of greater than 30 minutes.

[88] The mother has, to date and by her own appropriation of the right to do so, made all the decisions for the children. Happily she makes good decisions about health, education, religion, and most matters of the children’s well-being.

[89] The mother shall have final decision making for important matters of the well-being of the children except in relation to extracurricular sporting activities.

[90] The mother has, to date, adequately scheduled extracurricular activities and attended to the complex task of ensuring attendance. This is the life of parents with children fortunate enough to be involved in team sports. It becomes even busier as children reach an age when, if their skills are sufficient, they are chosen for team sports at school. Driving, driving, driving. That is the parent’s life. The mother has managed that attendance and enjoyed the rewards parents enjoy as part of the child’s sporting world. She has recruited her new partner. Meanwhile, the father has been excluded from organizing for the sports the boys will pursue and been excluded from attendance at most events because the mother has occupied the field and they cannot be in the same location without danger that some dispute will arise and she will escalate the confrontation to the detriment of the boys and the embarrassment of teammates, parents, coaches and sports organizations.

[91] I find as a fact that her confrontation of Michelle King and initiating a segregation of the young players has deprived J.T.L. of playing on the rep hockey team because Michelle’s son is on that team. I find that the restraints from contact arising from criminal proceedings against her, have been twisted by to her prevent the father from being in a place where there might be contact.

[92] The father has experience with team sports. His devotion to them was a complaint of the Respondent Mother. It is a subject matter within his competence.

[93] For these reasons, and to keep the father from being excluded as irrelevant, I am ordering that he have final decision–making power over extracurricular sports commencing fall semester 2015.

[94] This means he will organize the process of registration, try-out, equipment and payment for sports in the community. He will have contact with the school to facilitate try-out, equipment and payment for sports in that context.

[95] Most importantly, the father will have access, overnight one week-night per week for J.T.L. and for B.E.L., either both on the same night or on separate week-nights to attend practices or games as the team or league may schedule.

[96] The father shall inform the mother of the full schedule for sports and she will be responsible for the attendance of either boy at the sport practices or games, thus scheduled and communicated, that occur during time when they are in her care.

[97] Currently the boys play hockey, lacrosse and baseball. Hereafter the father is entitled to register the boys for those sports. If the boys change the sport they wish to play, the father may retain responsibility for three sports. If, after those three sports are chosen and scheduled, the mother wishes to register the boys for different activities she may do so but the sports schedule by the father shall take priority where conflict arises in the calendar for two events.

[98] Only the three sports organized by the father shall be shared by way of s7 expenses at a ratio calculated in accordance with their incomes. The father shall produce receipts to the mother, the parenting coach and FRO to calculate payment, or set off against arrears of table support. His entitlement to claim such expenses is delayed to September 2016 for reasons stated at paragraph 111 hereafter.

[99] During periods when there are no team sports, the parenting schedule shall include an overnight with both boys on Wednesday night.

[100] Until there is prior agreement in writing neither parent will attend the extracurricular activities of the children when, in accordance with the parenting schedule, they are in the care of the other parent.

[101] The Respondent Mother shall provide such written approval as may be necessary to convey to the hockey league that she has no objection to her sons playing on any team with any particular child and shall comply with any requirement of the league to avoid dispute with parents of such children.

[102] After announcing these terms about extracurricular activities I spoke directly to the parties of risk that J.T.L. might try to take matters into his own hands by refusing the activities he enjoys so much or, as mentioned in the psychiatrist’s report but not in the evidence before me, try to run away. Having made the findings I have, I emphasized to the parents that both must parent the child to discourage any such conduct and parent him rather than put him in a position of thinking that conduct will be condoned by either. I directed to the mother that if he runs it is her fault. She countered that it is my fault, thus confirming my judgment that she will not accept any view but her own. That demonstration of her intransigence makes it necessary to order that no parent may harbour a child who leaves the care of the parent in whose care he is scheduled to be. Allowing a child to put himself at risk by leaving parental care cannot be tolerated. Rather, the receiving parent must report the child’s presence to Paula Carter, Deborah Lyons or the CAS, in that order as they are available. Paula Carter may assist the children in developing safe risk strategies to employ if there is a true emergency and inform both parents who shall not interfere with the agreed method.

[103] A final challenge remains as to exchanges for the parenting schedule during the summer. Once school starts the weekend and midweek exchanges will be from and to school and the parent who is not scheduled to have the children shall not be present. I have tasked the parties with finding an access exchange location where the children can be left and the parents or their driving designates will not come into contact. Mr Prost will inquire of the CAS. The Supervised Access Centre, no matter how inconvenient, may be tried. If necessary a professional child care worker (such as a retired CAS worker or social worker) may be required to perform the task for payment. It may be possible to exchange at a reconciliation counselling session. Paula Carter may explore possibilities with the parties and failing agreement the parenting coach may name the time and place.

(f) Financial issues

[104] Table child support payable by the Applicant Father for two children shall be $867/month at the Applicant Father’s income of $58,300 commencing June 1, 2015.

[105] Exhibit 19 is a calculation of division of property addressing the proceeds of sale of the matrimonial home still in trust (as adjusted for child support and mortgage payments previously agreed by the parties). The agreed balance to be divided is $14,035.68.

[106] From this I have ordered the payment of retainer for the parenting coach of $2,400 leaving $11,635.68

[107] The Applicant Father’s ½ share $5,817.84 plus agreed reimbursement of $1,876 is $7693.84. The Respondent Mother’s ½ share is $5,817.84.

[108] There is little dispute about equalization figures. The main concern of the Applicant Father is a portrait of the children commissioned by his mother. Its whereabouts are not proved. I find the portrait of the children is the property of the Applicant Father. If it is located in the actual or constructive possession of the Respondent Mother it shall be characterized as stolen property and if not returned forthwith to the Applicant Father, complaint can be made to the police. Because of this finding of fact, it is no longer a civil matter.

[109] I find on the evidence before me that equalization of $4,693.08 is owed by the Applicant Father to the Respondent Mother. That amount shall be paid from the father’s share of the proceeds ($7693.84-4693.08) leaving $3,000.76.

[110] Retroactive adjustment in table support due to increases in the Applicant Father’s income is conceded at $5,221. The claim for July 2011 to March 2013 is not proved having regard to the mortgage payments made by the Applicant Father generally twice a month being close enough to the child support he should have been paying not to require retroactive adjustment. The support arrears thus owing of $5221.00 shall be paid first from the remainder of the Applicant Father’s share of proceeds and the remnant of $2,220.24 shall be enforced by FRO at a rate of no less than $200/month commencing July 1, 2015

[111] The Respondent Mother also claims s7 expenses for 3 sports which were never the subject of an order. She has paid for these sports to date. Commencing September the Applicant Father will be arranging for sports. I order a set off of the past section 7 expenses borne by the Respondent Mother against 1 year of section 7 expenses for sports to be borne by the Applicant Father commencing September 2015. I do so bearing in mind that the Respondent Mother has borne the expense for a longer time than a year but the ratio of her income to the income of the Applicant Father is 62% to 38% so the set off is close enough. The Applicant Father shall be entitled to claim section 7 expenses for 3 sports commencing September 2016.

[112] I shall require each party to bear their own costs except the cost generated by counsel for the Respondent Mother made necessary only by the unrepresented status of the Applicant Father. It is well recognized that the court often requires the represented party to create documentation and take steps that would not otherwise be the responsibility of that party. Mr Prost may serve and file a cost memorandum setting out such costs and submit it in writing through the judicial secretaries by June 15, 2015. The Applicant Father may submit any dispute of those costs in writing through the judicial secretaries by June 17, 2015.

EBERHARD J.

Released: June 5, 2015

[^1]: As defined in Child and Family Services Act

[^2]: OCL (Interim) RECOMMENDATION

1. Both parents should ensure that access continues to happen according to the present schedule already in place, that is Wednesday evening and alternate weekends.
2. Parents should each engage in counselling to address their personal issues and to help them understand the impact of their conflict on their children. They both need to learn anger management. 3 Both parents should attend a PARS program. In the event that Mr. J.L. cannot get accepted Into a PARS program, he should complete an anger management course.
3. J.T.L., B.E.L. and Mr. J.L. should be enrolled in reconciliation counselling to improve their relationship and bond. Ms. C.L. should participate in the reconciliation counselling as recommended by the therapist. 5 Mr. J.L. should ensure re that the boys get time with him during access (apart from Ms. Brady) to work on his relationship with the boys.
4. Ms. C.L. should attend for a full psychiatric assessment and follow through with all recommended treatment plans, including medication to ensure her ongoing stability. 7 The parties, in conjunction with Simcoe CAS, should engage in Family Group Conferencing to help further ameliorate the protection concerns for B.E.L. and J.T.L..

[^3]: OCL (final) RECOMMENDATIONS;

1. Ms. C.L. should have sole custody of the children. Their primary residence shall continue to be with her.
2. Mr. J.L. should have access on alternate weekends with a pick up from school at school Donna Lagree dismissal on Friday and a return to school on the next scheduled school day. Weekends should include any holidays attached thereto.
3. Mr. J.L. should have the boys for half of the Christmas holidays. Mr. J.L. should have the boys for the entire March Break on odd years and Ms. C.L. should have the boys for the entire March Break on all even years.
4. Mr. J.L. should have the children In his care on Christmas Day at noon to Boxing Day at 7:00p.m.
5. Mr. J.L. should have the children in his care every Father’s Day from 9:00a.m. to 6:00p.m, Ms. C.L. should have the children in her care every Mother’s day from 9:00a.m..
6. Mr. J.L. should have the children in his care for two non-consecutive weeks in July and In August.
7. All parental communication should take place via Our Family Wizard only. 8, All transfers must occur at the school or with the assistance of Kinark Child and Family Services or a mutually agreed upon third parties. The receiving parent should be the only parent present during transfers.
8. Both parents should ensure that access continues to happen according to the schedule. The parents agree that only CAS can withhold access to the children in the event of a safety concern or investigation.
9. Both parents should ensure that there is no denigration of the other parent in the children’s presence.
10. Both parents should ensure that the children are exposed to no further adult conflict.
11. Mr. J.L. should attend for an alcohol use assessment and follow through with any recommended treatment plans.
12. Mr. J.L. should consume no alcohol when in a caregiving role with the children.
13. Parents should each engage in counselling to address their personal issues and to help them understand the impact of their conflict on their children.
14. Both parents should ensure that the children attend all regularly scheduled extracurricular activities on their parenting time.
15. Mr. J.L. should ensure that the boys get time alone with him during access (apart from Ms. Brady) to work on his relationship with the boys.
16. Mr. J.L. should be entitled to full disclosure from all professionals involved with the children. It is Ms. C.L.’s responsibility to provide him with the names of all professionals involved with the children and it is Mr. J.L.’s responsibility to obtain any information he wants directly from the professionals involved.
17. Mr. J.L. should attend any of the children’s sporting events during his parenting time with the children. Ms. C.L. should not attend any of the children’s sporting events that occur during Mr. J.L.’s parenting time.
18. The children should attend a support group or counselling for children that have witnessed domestic violence.
19. J.T.L. should attend for some individual counselling to assist him with managing the negative feelings he experiences as a result of the marital breakdown of his parents.