CITATION: N. v. N., 2015 ONSC 3921
COURT FILE NO.: 27/09
DATE: 2015 06 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.N.2
Appearing in person
Applicant
- and -
R.N.1
Appearing in person
Respondent
HEARD: June 1 to 5, 8 to 10 and June 16 to 17, 2015
SNOWIE, J.
[1] This heated litigation has lasted six years in two courts. It has been unrelenting and unfortunately the two children, J.N.1 (11) and J.N.2 (9) have paid a huge price for their parents’ dysfunction to date. Neither party has been able to see the impact of their negative behaviors on the children. This file has been a nightmare undoubtedly for the two children. Both parents have made some bad decisions. Both parents and Children’s Aid Society have protracted the proceedings unnecessarily.
[2] I am not going to review in great detail the history of this file from the beginning as it is extremely well documented in the Endorsements of this Court and the Ontario Court of Justice over the last six years.
[3] There is no dispute that the applicant has had “some” addiction and mental health problems. She has always been functional. It would appear that these problems were somewhat caused and aggravated by the matrimonial dysfunction and the nasty separation. The applicant left the matrimonial with the two children and went to a women’s shelter. Her mental health and her addiction issues clearly were further aggravated by the respondent’s behaviour and the subsequent rejection by her older son during the separation.
[4] It is clear that the applicant has sought professional help as necessary and has always wanted the best for her children. Professionals have affirmed these facts. Unfortunately the applicant became overwhelmed by the respondent’s behaviour and her rejection by J.N.1. The applicant’s desperate actions and presentation became the focus. The real focus on the best interests of the children became lost by both parties, in my opinion. It is a cautionary tale.
[5] This file clearly took on a life of its own in both the Ontario Court of Justice and the Superior Court of Justice. The CAS matter dragged on for an appalling 14 months before it came to a full hearing for Summary Judgment. Pending a hearing, the children were transferred into the care and control of the respondent and access with the applicant was supervised only. The Superior Court was powerless with regard to the children. The child protection legislation is always paramount in these matters. The evidence is clear that at the time of the separation both children had good and strong relationships with both parents.
[6] Dr. Mary Susan Crawford Ph.D., C. Psych writes on January 13, 2010:
Both boys presented as delightful, charming, well groomed children. They were able to separate and come into the play room with support. The primary focus in the first session was helping the boys feel comfortable and just beginning to talk about the changes in their family. Drawings and play were used to help them feel comfortable and talk about feelings. The overwhelming comment from both boys is that they wish their parents were still together. The second concern is that they perceive their parents to constantly be fighting and this really upsets them, but they did not talk about feeling scared. Both boys talked about being happy visiting both parents in this very initial interview. But one interview does not provide sufficient information upon which to make definitive conclusions.
During the next session, I worked solely with J.N.1 and we completed the Bene-Anthony Test of Family Relationships. There were positive outgoing and incoming feelings towards mom and dad that were roughly equivalent suggesting that J.N.1 is experiencing caring from both and feels he can express caring towards both. Also, dependency feelings (e.g. help with bath, food etc) were roughly equivalent between both parents suggesting he is reporting both parents are taking care of his needs and he feels he can rely on them. It is positive to note that he did not attribute many negative feelings toward himself.
Results from school questionnaires indicated that J.N.1 is a respectful, hardworking student who relates well to peers and teachers and is not presenting with any areas of difficulty. That is to say he is not presenting as anxious, depressed, withdrawn, nor are attention problems evident. Academically, he is reported to be doing well with the exception of some printing difficulties.
At the present time, (being January/10), I feel that it is critical that custody and access issues be resolved as both children are worried about the fighting between their parents. A comprehensive evaluation of the children’s needs by the Children’s lawyer would be beneficial as I only saw them for two sessions and my impressions are based upon limited information.
Once custody/access has been resolved then possibly some individual therapy for the boys as well as sibling sessions would be helpful. There should also be some parental sessions that would translate the boys concerns into more effective parenting practices. However, this form of treatment will need to be implemented once the legal issues are resolved and no longer are the focus.
I hope my comments have clarified my involvement. You have lovely boys and hopefully custody and access issues can be resolved and a collaborative parenting approach be developed so that the boys no longer worry about their parents fighting.
Sincerely,
Mary Susan Crawford (signed)
[7] Unfortunately the “War of the Roses” and the CAS intervention since the separation has destroyed the mother’s relationship with the older child J.N.1 (11) and strained her relationship with J.N.2 (9). The children were only 3 and 5 at the date of separation. They are now 9 and 11(almost 12) and probably have no memories of any tranquility ever between their parents.
[8] The damage has been so severe with respect to J.N.1’s relationship (or lack thereof) with his mother that he had instructed his OCL counsel in the Child Protection hearing that he wanted “no contact with his mother”. This is an unusual position by a 10-year-old (at the time). J.N.1 also totally undermined the re-integration therapy order by Justice Clay on February 24, 2014. Prior to January, 2010, this child loved his parents equally. What has happened is the question.
[9] This file is an example of the failure of the system in my opinion, and the total absorption of each parent in “winning”.
[10] The parties separated in January 2009.
[11] The conflict between the parties has been horrendous throughout the separation. The mother has consistently and repeated reached out to professionals for support and help. The issues were custody and access which ultimately spun off a Child Protection Application. Mother was initially the referring source to CAS. She looked repeatedly to CAS (nine times she reached out to CAS for help) to assist her with the parenting dispute and the “alienation’ that she felt was happening with her 7-year old son, J.N.1 (age at that time).
[12] In order to understand the dynamics in this case one must understand that this case started as a domestic abuse case by the respondent of the applicant. The applicant, in part, out of fear of losing her children due to “alienation” and frustration turned to substance abuse to cope. A bad judgment decision on her part. She remained functional. The whole situation spiraled out of control with the respondent continuing to be angry, abusive verbally, and dismissive of the applicant and all of her attempts to get the children mental health counselling fell on deaf ears. This led to the applicant becoming more and more frustrated and turning to more substance abuse to self-medicate and comfort. Her behaviour became more difficult and very reactive and so the case went on and on in two courts for years. In the meantime, the child, J.N.1, continued to pull away from the applicant. The respondent did take these opportunities to further distance the boys from their mother, especially the more introverted older child, J.N.1. He encouraged the child directly and indirectly to make life as difficult for the mother as possible. The child did exactly that. He called his father up to thirty times a day, at the respondent’s suggestion. The child cried incessantly and uncontrollably while in the applicant’s care with the respondent’s encouragement.
[13] Both parties were guilty here of using the children. The children were used to being in a week-about schedule with each parent, an arrangement that worked for the most part for the children. Then the parties, on consent, went to alternate weekends with the respondent. The two boys (especially J.N.1) missed their father. He began to cry incessantly and act out. He wanted to see more of his father. The applicant suggested the respondent take the boys on Thursday nights also. This still was not enough time with the father for J.N.1. He wanted to live with his dad. J.N.1’s bad behaviour escalated.
The situation became uncontrollable for the applicant with J.N.1. She was totally overwhelmed and frustrated and sent J.N.1 unilaterally to live with the respondent. A bad decision by mother, but understandable. Six weeks later she unilaterally took J.N.1 back to live with her and visit with his father on alternate weekends only. A very bad decision by mother. This was even less time than before the move to his father’s. There was not even any Thursday evenings of access. J.N.1 was now extremely upset and did not understand why he could not have more time with the respondent. The respondent was equally upset ad evidenced in Exhibit Number 10 – Audio Recording dated May 10, 2012:
R.N.1: No, no. I have nothing that says that. See, the law says that – that there’s something that has to be done, by law, so that I don’t have any trouble with anything, anybody with the date and time that I have to see you guys. Okay? So that means that the school, nobody can do anything when I come and pick you up. Right now, there’s only – there’s only Friday, Saturday, and Sunday on this paper. Any other – any other time, I can get in trouble if she wants to call the police, or if she wants to cause trouble. So, I have to get something in writing from her to change these things that’s in the law. That’s the law. So, she has to make this – she has to make these changes. If you want to come in …inaudible… she has to understand that you want to come and stay here. If she wants you to come here one week for me, and one week for her, it has to be by law, in writing. And your mother hasn’t done any of that stuff.
J.N.1: K.
R.N.1: So, I think that ah – yeah, see, like, I’m not going to do anything without those papers because it’s not fair to you and J.N.2 what she’s doing . Because if I had papers signed, she would not be able to say, ‘Oh, J.N.1 now, he’s going to live with me again.’ She wouldn’t be able to do that. Because it’s already on paper that you’re living with Dad.
J.N.1: I know, but didn’t she do that like before?
R.N.1: No. She would never do that. This is why we’re – this is why we’re always, ah, you know – that’s why I’m always, like, she’s always threatening to call the police on Dad, she’s trying to, you know, to stop me from seeing you guys. She goes to the school, and she says things, right? Like Thursdays, right? Dad was always picking you up on Thursdays, right?
J.N.1: Right.
R.N.1: And then your mother stopped me from picking you guys up. In January when – when J.N.2 started karate, so I could not come to pick you up unless she said that she was – they were going to call the police on me. So, she can do this anytime she wants and Dad has no control, I can’t do anything. So, but I’m not gonna – I’m not gonna put up with this stuff anymore. So, I’m not gonna put you guys through all this nonsense because it’s not fair to you and J.N.2 to be crying that one day you’re with Dad and then the next day she can say, ‘No, he is not coming to your house.’ It’s not fair to you, and to J.N.2. So, now I’m going to put a stop to this.
J.N.1: K. When?
R.N.1: Well, J.N.1, ah, I’m trying right now, but you know, it’s not gonna be very easy for Dad. She has to --- she has to make this happen. She has to say, ‘Okay, you wanna go there, okay go there.’ She’s gotta write it all down. She’s gotta write it down, by law, saying that you’re gonna come and stay with Dad. Doesn’t matter how much, how long, a week, two weeks, full-time, she has to do this. You keep voicing your opinion and do what you have to do to keep telling her that. And that – that’s the way it has to – the truth of the matter. You have to keep going doing what you’re doing. Okay?
J.N.1: Okay.
R.N.1: Don’t let anybody stop you from crying, don’t let – if you have to cry all day long and all night long, you do it. If that’s your feelings.
J.N.1: K. I know, but Mom always says that you’re like, making me sad.
R.N.1: I’m making you sad?
J.N.1: Yeah. That’s what Mom says, but I keep on saying no, I say, ‘I miss Dad.’ And…
R.N.1: Yeah, that’s right.
J.N.1: …that’s sad.
R.N.1: She is making you sad, buddy. She took you away from me, she doesn’t care. She doesn’t care about your feelings, bud. She’s the one making you sad, not Dad. She – she took you away from Dad. You were happy here, right?
J.N.1: Right.
R.N.1: So then why – why did she take you away? Why did she take you away from me? If you were happy here, why did she take you away?
J.N.1: I don’t know.
R.N.1: Okay. So, she is the one that made you sad. Now she’s making you sad. She’s the one that took you away from Dad, so she’s making you sad and mad right now, okay? It’s got nothing to do with Dad. She took you away from me.
J.N.1: (sneezes)
R.N.1: Bless you.
J.N.1: Thanks.
R.N.1: She’s trying to say that I’m making you sad.
J.N.1: Yeah.
R.N.1: What a liar. What a joke?
J.N.1: Remember that time, like, earlier today that she was trying to make J.N.2 laugh.
R.N.1: Yeah. Yeah, what about that time?
J.N.1: That was a joke, too.
R.N.1: Yeah. That she was crying and she tried to stop him from crying, right?
J.N.1: Right. Who won the hockey game, anyways?
R.N.1: Oh, I don’t know. There is still a couple of minutes left, but I think the Washington Capitals are gonna win.
J.N.1: K.
R.N.1: So now it’s gonna go to game seven. The last game is on Saturday, I think.
J.N.1: I hope I go to your house on Saturday. And everyday.
R.N.1: Well, you keep telling them. Keep telling them every day. Just keep telling them over and over, every day, every day, every day. Every day, every day, every day, every day, every day, like that. Every day, every minute, every day, every minute.
J.N.1: K.
R.N.1: She’s the – she’s the one that did this, not me. Nobody else did this but your mother. She stopped you from staying here. First she said it was good, that it was okay, for one month and a half. And then she said, ‘Nope, I’m taking him back.’ So she took you away from Dad. For whatever reason, I don’t know. So, she – she created this problem for you now. She did it.
J.N.1: Okay.
R.N.1: Hello?
J.N.1: Hello.
R.N.1: Okay.
J.N.1: Hi.
R.N.1: What time do you have swimming tomorrow? In the morning again?
J.N.1: Yeah.
R.N.1: Bud, you know, you left a couple messages that your mom was trying to call on the other phone too, and she said try it again, try again. What was that about?
J.N.1: On – on her cell phone or on, like….
R.N.1: The home one. I mean, she was on one phone, you were on the other and she was saying, ‘Call your father and try him again to get through,’ and….
J.N.1: Yeah, she was saying that to me. And she still says that the – the calendar thing is still none of my business but I say, ‘No, it’s my business.’
R.N.1: What’s that, bud?
J.N.1; You know how Mom says like the calendar is none of my business?
R.N.1: Yes, the schedule?
J.N.1: Yeah. Um, I always say, ‘Yes, it is my business.’
R.N.1: Yeah, that’s right. It is – it is your business because that’s when you get to see Dad. So, absolutely, it’s your business.
J.N.1: K.
R.N.1: K, that’s your business. It’s your brother’s business, okay? So, it is your business. I don’t know what she’s saying, and I don’t know what she’s doing, but she’s not doing anything good to you, I can tell you that.
J.N.1: She – well, Mom and Don always be mean to me.
R.N.1: Yeah.
J.N.1: Feels like no one loves me right here.
R.N.1: Yeah. Well, we love here, that’s for sure.
J.N.1: And I love…
R.N.1: Your tell your…
J.N.1: …you dad.
R.N.1: …mother these feelings?
J.N.1: No, not….
R.N.1: Did you tell her that you feel that nobody loves you, or do you don’t really talk to them?
J.N.1: I don’t really talk to them about that.
R.N.1: Where’s ah, where’s your brother? Is he sleeping or is he watching T.V.?
J.N.1: He’s sleeping.
R.N.1: Yeah. And where’s Mom, downstairs?
J.N.1: Yeah, I think so. I think it was better without Don staying here.
R.N.1: You think it was better without Don being there?
J.N.1: Yeah.
R.N.1: Yeah. Yeah. Well, that wasn’t very nice what he did to you. You tell him that Dad’s gonna talk to you – talk to him about this.
J.N.1: K.
R.N.1: He doesn’t know me, but he’s gonna get to know me.
J.N.1: K.
R.N.1: K, buddy.
J.N.1: K.
R.N.1: Okay, buddy, what are you gonna do now, you gonna go to bed?
J.N.1: Yeah.
R.N.1: Yeah, you should get some rest. And ah, as far as your homework is gonna be done, you’re not gonna hand anything in tomorrow, right?
J.N.1: No.
R.N.1: Well, explain to your teacher that ah, whatever, whatever happened, okay?
J.N.1: Mom wants to talk to you.
R.N.1: Why? Is she there right now?
J.N.1: Yeah.
R.N.1: Was she listening to you?
J.N.1: No. There’s Mom. Mom said that I can’t talk to you again after….
R.N.1: What’s that?
J.N.1: Mom said that I have to say good-night, and I love you, then I have to hang up.
R.N.1: Okay.
J.N.1: But Mom…
R.N.1: All right.
J.N.1: …WANTS TO TALK TO YOU.
R.N.1: Yeah, well, I love you buddy.
J.N.1: Love you, too. (kissing sound)
R.N.1: (kissing sound)
J.N.1: Bye.
R.N.1: Bye-bye.
R.N.2: Hi R.N.1. Hello? Hello? Hello? He hung up.
[14] At this time J.N.1 was grief-stricken at what he saw as the “loss of his father”. J.N.1 became totally unmanageable for the applicant by December, 2012. He locked his mother out of their home, he slammed doors, he locked himself in his bedroom all the time, he refused to interact with his mother and younger brother. He hit and kicked and punched his mother. On one occasion he unlocked the car door and removed his seat belt in a moving car, he called his mother the crude names he had repeatedly heard his father call his mother such as “fucking asshole”. J.N.1’s temper tantrums were endless and exhausting. He was only 7 or 8. Both parties had created directly or indirectly this mentally upset state in J.N.1.
[15] The applicant tried to get mental health counselling help for the two boys (especially J.N.1) but because the parties had a joint custody order both parents had to consent. The respondent refused to consent to mental health counselling for the children. In fact he was so angry with the applicant he refused to co-operate in any way with the applicant. If she said something was white, he said that it was black. He did not believe that J.N.1 needed mental health counseling. He was content to have the school counsellor talk with J.N.1. He refused to believe that his child was suffering from any type of mental illness and just blamed the applicant for the child’s behaviour, as evidenced in the following e-mail exchange between the parties:
June 20, 2012 – email from […] wrote:
R.N.1, I ‘m scheduling an appointment for J.N.1 to see a mental health specialist from Toronto. Would you like to attend?
June 20, 2012 – email from […] wrote:
R.N.2,
Please recognize that you are not allowed to schedule or to take J.N.1 to a mental health specialist. We have neither discussed it, nor have we agreed to it. We have joint parenting and you will require my consent and involvement, which I will refuse.
I will not consent to J.N.1 seeing a mental health specialist.
Please firmly and coherently acknowledge that there is nothing wrong with J.N.1’s mental health other than the fact that he would like to spend a more majority of his time with his dad. But you seem to feel that there is something mentally wrong with that and wish to relentlessly pursue a third party who will agree with your fiasco that you have conjured up.
Please acknowledge J.N.1’s dialogue, my discussions and the many perspectives of all close third parties involved with J.N.1 instead of ignoring them as they do not support your belligerent pursuit for court.
Your pursuit is becoming tedious and over-reaching. For the best interest of the children, please remove your obnoxious motive for courts and listen to their needs.
R.N.1
June 21, 2012 – email from […] wrote:
R.N.1, I am asking if you would like to accompany us to see a specialist. Are you sure that you do not want to participate? R.N.2
June 21, 2012 – email from […] wrote:
R.N.2,
Do you not understand that I am not consenting to a mental specialist to be involved with J.N.1? You will require that for their involvement and J.N.1’s attendance to the appointment as per our joint parenting arrangement and agreement.
I have already consented to Cheryl Schneider’s involvement from the mental health department at DCAFS, as she will be involved to help you with the much needed parenting strategies for yourself as you cannot handle to children and their behaviour at your home exclusively. You needed my consent for that which I have provided.
You saw me last night at the baseball gave with absolutely no mention of this new idea of yours to see yet another specialist? Why would you not discuss it then? You will need to disclose which mental health specialist you intend on seeing and the time of the and location of the appointment.
If you wish not to understand that I am refusing my consent then I will contact the facility myself to follow up and mention my position as well.
R.N.1
[16] The respondent absolutely refused to allow/consent to mental health counselling for J.N.1. J.N.1 was not a problem at his house. If the respondent had been co-operative with the mother’s repeated mental health counselling requests for J.N.1 the situation might be very different today. J.N.1’s extreme acting out was not ever addressed by the respondent.
[17] In summary, in my opinion, J.N.1 was vulnerable and not surprisingly decided he wanted to live with his father full time or at least more than the alternate weekend schedule that existed at that time (Spring 2012). Mother became obsessive in sticking to the final order of alternate weekend access and her need for professional assistance especially with J.N.1. She admits openly that she could not cope – J.N.1’s ambition it seems to this court was to make life so unbearable for his mother that he would be sent to live with his father – father fed into this plan and supported the child to make his feelings known as is demonstrated by the following:
Exhibit 11 – Audio Transcript between R.N.1 and J.N.1 – June 5, 2012
R.N.1: Hello?
J.N.1: Hello.
R.N.1: Hi buddy.
J.N.1: Hi Dad.
R.N.1: What’s the matter? Why are you crying?
J.N.1: Mom keeps on saying I can’t go to your house. Like, I’m not part of the schedule so she doesn’t listen to me when I ask her to go with you full-time.
R.N.1: Yeah, well here’s – ah – ahhhhh. Did you tell her that those are your feelings?
J.N.1: No, not yet.
R.N.1: Well, you keep telling her those are your feelings, buddy. I don’t – like, she’s,, she’s being – I don’t know, ahh, I don’t know buddy.
J.N.1: ‘kay.
R.N.1: Ahh, so what’s, what’s, what is, what’s going on? What is she saying?
J.N.1: She said that the – me and dad are working it out.
R.N.1: Okay. So, we’ll – let’s see – we’re going to work it out. If she, if she emails me, ahh, something tonight, and then, you know, I want to see what she has to say. And, ah, that’s it. You know, she’s, she’s gotta change this. She’s, she, she’s the only person who can change this. She’s, - has to say, say either we go one week to dad’s and one week to mom’s, or anything like that. She has to make the change, okay? This – so we can make this easy. So we can work together and we can do it easily. If she doesn’t’ want to do it, then dad has to take other steps okay? To try and help the situation to make this better. Okay?
J.N.1: ‘Kay.
R.N.1: But, you know, you just keep, you know, saying what you feel inside, your feelings, okay? There’s nothing wrong with you sharing your feelings, okay?
J.N.1: ‘Kay.
R.N.1: Just keep sharing your feelings saying what you have to say to, to anybody. Mom, ah – did you go see, um, what’s her name at school today?
J.N.1: Danielle?
R.N.1: Yeah. Did you go see Danielle again today?
J.N.1: No.
R.N.1: She wasn’t there?
J.N.1: No.
R.N.1: All right. Well, you just keep on it, okay bud?
J.N.1: ‘Kay.
R.N.1: And then I’ll keep on top of it too and see what we can do here.
J.N.1: ‘Kay.
R.N.1: Okay. And if you’re sad later, you call me again, okay? Any time. Call me a million times, okay?
J.N.1: ‘Kay.
R.N.1: And my phone’s always on, okay? I’m going to go home and watch the hockey game maybe if there’s one on tonight. You can be on the phone with me and we can watch it together. Do you have a TV still in your room?
J.N.1: Yeah.
R.N.1: Are you allowed to watch it or nah?
J.N.1: Yeah.
R.N.1: All right. So, anyways, you call me later, okay?
J.N.1: ‘Kay.
R.N.1: All right, buddy. I love you.
J.N.1: I love you too.
R.N.1: Okay.
J.N.1: Mmmmmmmoi
R.N.1: Mmmmmmmoi, buddy/
J.N.1: Bye.
R.N.2: Hello? Oh, J.N.1? Can I talk to dad for a minute? R.N.1, are you there? Hello? Is dad still there?
J.N.1: No.
R.N.2: Oh, okay.
J.N.1: Do you want me to call him back?
R.N.2: No, that’s okay. I’ll talk to him later.
J.N.1: “Kay.
R.N.2: “Kay, bye.
J.N.1: Bye.
[18] I do not know whether the respondent was maliciously coaching J.N.1 or just flattered by J.N.1’s devotion to him and fuelled by his frustration with the applicant and her erratic, aggressive and unilateral behaviour supported J.N.1’s negative behaviour. Either way the respondent directly or indirectly contributed to “alienation” of the child. The applicant’s substance abuse and subsequent obsessive behaviour got worse and further aggravated the situation. Neither party was focused on the children’s best interests.
[19] Initially after the separation the children resided primarily with the applicant mother. The respondent had alternate weekend access.
[20] In November 2010 the parties consented to joint custody week about. Unfortunately the conflict between the parties continued to escalate, especially at access exchanges. The respondent was supporting J.N.1’s desire to move to his house and in fairness J.N.1 was really missing his father. J.N.1 began to seriously and dangerously act out making the applicant’s control of him impossible. The applicant continued to seek professional help for the family. The respondent absolutely refused to co-operate. The respondent refused to allow mental health counselling for J.N.1. This was a bad decision on the respondent’s part. In the spring of 2012 the applicant being totally overwhelmed by J.N.1’s acting out sent J.N.1 unilaterally to move in with his father. In my opinion that move rewarded J.N.1’s bad behaviour and the respondent’s bad behaviour. The applicant then unilaterally took J.N.1 back home after six weeks. The child was totally devastated and the respondent was understandably furious. Now the litigation fired up again with both parties now seeking sole custody of the boys.
[21] A s.30 CLRA assessment was ordered in the summer of 2012. The assessment was protracted with a final cost of approximately $44,000. It was recommended that the children’s primary residence remain with the respondent. During the course of the assessment the children had been apprehended by CAS (December 2012) and placed with the respondent under an Interim Supervisory Order on terms. This Order allowed the respondent now to take total control of the children and he exercised his control against the applicant and her family contrary to the children’s best interest. The applicant mother became verbally combative believing that the respondent was further “alienating” the children from her. I believe that he was. It is clear from the tapes admitted into evidence that he had little respect for her at that time. He called her obscene names (i.e. “cunt”, “asshole”, “dirty bitch” etc.) and still was totally dismissive of her and her concerns. The applicant also calls him derogatory names. They both do this in front of the children.
Exhibit 12 – Transcription of an audio recording provided by Rhonda Nordlander – August 7, 2015:
R.N.1: That’s fine.
R.N.2: Okay. So, it’s just that Tracy didn’t tell me that the daycare thing was full. And, so, she put the names that she gets from the play camp this week. So, you just need to pick him(ph) up…inaudible… and drop him off there. She….
R.N.1: That’s fine.
R.N.2: J.N.1 had mentioned that you were taking um, that you were taking a week off or are you working this week?
R.N.1: I don’t know. …inaudible… going to go on a trip.
R.N.2 : Okay. Um….
R.N.1: Yeah, we’re going a road trip. We’re going to Thunder Bay.
R.N.2 : Are you going to Thunder Bay? Why?
R.N.1: Yeah, we’re gonna see their cousins and everything. And then spend the week with them.
R.N.2 : Which cousins?
R.N.1: What, they don’t have cousins in Thunder Bay?
R.N.2 : Yeah. R.N.1: Well, we’re going to see them.
R.N.2 : Oh, okay. Whatever you like, just, ah, you don’t even know them though. Did you want me to make an introduction?
R.N.1: Oh, I’ve already been there, don’t worry, I know them.
R.N.2 : Oh, okay. When are you going?
R.N.1: Anyways, well….
R.N.2 : When are you going?
R.N.1: Why, what’s up? What’s up?
R.N.2 : When are you going?
R.N.1: What’s up, what’s up? What do you want, what do you want? Come on.
R.N.2 : I just want…
R.N.1: Where are they: Are they here?
R.N.2 : R.N.1, I’m just letting you know about all of this …inaudible… that’s all, okay.
R.N.1: Okay, yeah.
R.N.2 : …inaudible… you know, for the 20th. I talked to your (ph) lawyer today.
R.N.1: I don’t care. I don’t care. R.N.2 : Are you going to be…
R.N.1: It can go…
R.N.2 : …available?
R.N.1: …to the 20th. Pardon me?
R.N.2: Are you going to be agreeable to do the access …inaudible… to put it over there right now?
R.N.1: Well, if you want, I don’t care. Like I said, I was fine with one week about (ph) and we didn’t have to spend this extra money.
R.N.2: That’s fine.
R.N.1: But if you want…
R.N.2; That’s fine. I’m not talking about that, I’m talking about the custody access assessment. Are you in agreement to using the new assessor?
R.N.1: I’m only going agree to the doctor that we agreed on.
R.N.2: Well, he’s not available right now and he recommended we call somebody else in his, in his group, and so somebody did call back and say that she’s available immediately and they recommend anyone from this group. That’s what I told your…
R.N.1: I….
R.N.2: …lawyer.
R.N.1: I’m – I’m – I’m comfortable with ah, with him, and that’s where I want anyway.
R.N.2: So….
R.N.1: Just ‘cause we got Children’s Aid that’s going to be involved as well, right? You know that, right?
R.N.2: Well, yeah, they opened a file and I meet with them this week.
R.N.1: …inaudible… Yeah, I know, I know.
R.N.2: Okay.
R.N.1: So, it’s gonna be very interesting as well, so I …inaudible… I’m just gonna wait until – we’ll see what happens.
R.N.2: But I just wanna get an order.
R.N.1: I’m not gonna….
R.N.2: I want the assessors – all of them want this in an order. Can you agree at least to that?
R.N.1: Listen, listen, I’m not gonna agree to Friday to Friday, so would you agree to Monday to Monday?
R.N.2: Yeah, okay R.N.1, whatever. I just wanna get this custody access assessment into an order, all right? Just an order. It shouldn’t hinge on whether I agree to this, or that, or this, or that, it’s an order…
R.N.1: No.
R.N.2: …it’s an order to an assessment, that’s all. It’s not based on anything else. Just to do a straight deal.
R.N.1: Well, I’m trying to do a straight deal for four years.
R.N.2: You are…
R.N.1: You can’t deal.
R.N.2: …inaudible…
R.N.1: …inaudible…
R.N.2: …learn how to deal with your life.
R.N.1: You don’t know how to deal. We’re gonna make everybody else make the deals.
R.N.2: Why do you have to do that?
R.N.1: Because this is how it’s gone. This is how it’s going. This is how it’s gonna be for the rest of our lives.
R.N.2: Why do you….
R.N.1: So now, I don’t care anymore. All I’m gonna do, is I’m gonna claim bankruptcy, I’m gonna sell all my shit, and I’m gonna say fuck you. You understand? So I don’t care. I don’t care. Do what you want, agree to what you want, and I know what I’m gonna agree to do. I’m gonna make the judges make decisions for us.
R.N.2: And why would you do that?
R.N.1: I’m gonna make Children’s Aid, I’m gonna make them do my referrals and my recommendations. I’m gonna get the doctors do whatever they have to do. I want a drug and alcohol test done on you, in a court order. I’m gonna do the same thing. I want all this stuff done. I want it all done.
R.N.2: Okay.
R.N.1: You understand?
R.N.2: yeah.
R.N.1: This is where I’m going, okay?
R.N.2: Well, guess what, you know what?
R.N.1: Because you cannot, you cannot, you cannot agree to anything. You can’t negotiate anything, you can’t do anything but spin your wheels.
R.N.2: R.N.1, you can’t say one…
R.N.1: You go and….
R.N.2: …good thing about me, can you?
R.N.1: No, there’s nothing nice to say about you.
R.N.2: I’m just a….
R.N.1: Because you’re a cunt, you’re a dirty bitch, and that’s all there is to it. That’s it. You’re fucking mental in the head. But I’m going to show you how much more mental I am in the head, because I’m not going to agree to fuck all.
R.N.2: You are mental. Because if you don’t….
R.N.1: Yeah?
R.N.2: …think I’m recording this right now….
R.N.1: You can, you can, you can, you – you’re messed up. You can’t agree to anything. You can’t do anything. I don’t care.
R.N.2: Okay, R.N.1, have a great day.
R.N.1: Okay.
R.N.2: Bye.
R.N.1: Yeah.
[22] In the course of the s.30 CLRA assessment the assessor, Ms. Jan Schloss, became concerned about the applicant’s mental health based upon the applicant’s aggressive and depressive thoughts disclosed in the interviews. The assessor sought a psychological assessment from Dr. Olga Henderson of the respondent, applicant and the respondent’s fiancée (A.M.). The psychologist was concerned identifying the applicant’s tendency to self-medicate with alcohol and drugs, and the fact that she was stressed, frustrated, sad, lonely, depressed, worried, feeling out of control, confused, upset, worthless, rejected, misunderstood, and angry. The psychologist was concerned that those characteristics ”could be” an indicator of an “increased risk of physical child abuse”. Note – Physical child abuse has never been an issue in this file.
[23] As a result of Dr. Henderson’s concerns CAS apprehended the two children in December 2012, and placed them in the respondent’s care under an Interim Supervisory Order and on terms. This put all the power and control legally into the respondent’s hands. I believe there has always been a “power and control” struggle in this relationship. The respondent has used the Interim Supervisory Order to repeatedly deny access to the extended maternal family. The hearing of this Supervisory Order Application took 14 months to reach – an outrageously long period of time and contrary to the best interests of these children. This lengthy period of adjournment further damaged the mother/child relationship as all normal access was on hold pending a protection determination by the Ontario Court of Justice.
[24] The s.30 Assessment was completed in February 2013 while waiting for the Protection Hearing to be heard. The applicant now felt further victimized by the s.30 Assessment and by CAS.
[25] To her credit the applicant acknowledged that she had been self-medicating with alcohol and sought professional help. She had to this point been gainfully employed full time at a Legal Clinic. She went to her employer to arrange a leave of absence in order to enter a 35-day rehab program for substance abuse June 13, 2014 to July 13, 2014. Since November, 2012, she has completed the abuse residential program; she has become an active member of AA; she has an addiction counsellor; she is under the care of a supervising psychiatrist, Dr. Mansour of the William Osler Health Centre. Additionally, her hair follicle tests and urine tests entered into evidence have all been negative. She is currently “clean” and doing well.
[26] The applicant acted as her own lawyer in these proceedings. She was very organized, polite, patient, positive, helpful, respectful, never upset or angry. She had excellent focus and was never belittling or demeaning or nasty in any way towards the respondent. She conducted herself extremely well in a stressful situation. The respondent was also very polite, patient, helpful and respectful.
[27] The applicant deserves a lot of credit. Everyone has problems, the real issue is how does one handle one’s problems. The applicant has been totally appropriate and dogged in seeking professional help and that of the court. Her good parenting ability has been testified to by her family doctor, Dr. Stenning, her counsellors, the supervisor of the Headwater’s Access (supervised) program, and her family. Although the applicant has admitted that she is an alcoholic, it appears that she was always a functional alcoholic. She was able to hold down gainful and responsible employment, mother her children well, until J.N.1’s acting out got out of all control, upgrade her education, own a home, etc. Unfortunately with all the stresses and the fear of losing her children the applicant became very reactive and focused on the respondent’s “alienation” of her children from her. The issue here is not whether the parties can parent, it is the parties’ high conflict relationship (or lack of relationship) between them in the past.
[28] Unfortunately the respondent has in the past not been acting in the children’s best interests either, especially J.N.1’s. He was well aware of J.N.1’s bizarre behaviors and was supporting J.N.1 in the same so that J.N.1 could spend more time with him. He did not recognize that these behaviors that he was feeding were symptomatic of deeper problems. He did not understand that J.N.1 was only 8 years old and any 8-year-old who is acting out in such extreme ways is indeed in need of serious and protracted mental health counselling. Instead, he said that he had no problems at his house with J.N.1 and refused mental health counselling over and over again for J.N.1. He simply buried his head in the sand. He blamed the applicant and dismissed repeatedly her plans for help for the child. This gives me serious concern.
[29] The respondent refused to allow the children to have any contact with the maternal grandmother and maternal aunts after the children were placed with him under the Interim Supervisory Order with CAS two and a half years ago. He tried to distance the children from their whole loving extended maternal family contrary to the children’s best interests. He hid behind the Interim Supervisory Order saying he could not allow such access. He ignored CAS’s and the assessor’s recommendations for the children to have a normal relationship with their extended maternal family. The Interim Supervisory Order was only between the parties and CAS. The maternal family was not party to the Interim Supervisory Order and not party to the Protection litigation. The children had the right to maintain their normal relationships with their maternal grandmother and maternal aunts. The respondent unilaterally denied the children this contrary to their best interests.
[30] I do not doubt that the children are loved by both parents. I do not doubt that J.N.1 has an especially close relationship with his father and missed him terribly especially in those early days after the separation. J.N.1 is a “daddy’s boy”. I believe that J.N.1 has been emulating some of his father’s negative attitude towards the applicant. J.N.1 was the child more affected by the separation, that is clear from the evidence. He was 6 at the time. He is described as an introverted child with a strong bond to his father. Instead of recognizing that J.N.1 had serious mental health issues and needed professional mental health help desperately, the respondent was self-absorbed and took the position that J.N.1 was fine and the applicant had the problem of not being able to control him. No 8-year-old who tries to open the door of a moving car after taking off his seatbelt is without serious mental health issues. The respondent’s lack of concern and his lack of skill in identifying such a serious problem in his child, gives this court serious concerns. The respondent clearly has been obsessed with finding fault with the applicant instead of seeing that his child was suffering serious mental health issues in part created by him.
[31] Due to the respondent’s obsession with vilifying the applicant, he has supported this child directly or indirectly deeper into these medical health issues. As a result J.N.1 has had an absolutely bizarre relationship (no relationship) with the applicant until this trial. J.N.1 has had no contact with his mother for over two and a half years. J.N.1 has refused. He is only 11 years old now. This child had as good and loving a relationship with his mother as with his father at separation. There is no major event that is known to have contributed to J.N.1’s total rejection of his mother, other than the warring parties’ behaviour towards each other. How will this child ever be able to have fully happy, healthy relationships in the future when he has so much unresolved anger directed at hurting his mother.
[32] I have heard much evidence that the respondent has supported J.N.1 in his rejection of his mother. The tapes tell a story of a father suggesting that this child’s mother is responsible for keeping him away from his father, that she is an “asshole”. J.N.1 returned early in this separation quoting his father’s thoughts on his mother and adopting them as his own calling her an “asshole”.
[33] Neither party to the date of trial has been able to see the impact of their negative behaviour on the children – especially J.N.1. Justice Clay in his “Reasons” dated February 24, 2014 recognized that this child was in serious mental pain and was in need of Integration Therapy to try to repair the relationship between the child and his mother. It failed at a cost of $3,000 to the CAS.
[34] The applicant has positive reviews by family members and professionals on her skills as a parent. She is described as a caring, concerned, creative, imaginative, loving, active, involved and affectionate parent. The same could be said about the respondent in isolation. However, together they have created a nightmare for their children.
[35] I accept that the Respondent seemed during the trial to have developed more insight into the fact that J.N.1’s behaviour and attitudes towards his mother may be abnormal. I do not think that he believes he has “alienated’ the children, especially J.N.1. However I find that, he has alienated the child J.N.1 directly and indirectly. The tapes that were admitted into evidence clearly display the dynamics at play between the applicant and the respondent and the respondent and the child (J.N.1). I dealt with the issue of admissibility of the said tapes. The case law goes both ways but I used my discretion in the best interests of the children and found that their value was more probative than prejudicial and that the tapes were reliable.
[36] The question is:
Are the mother’s tape recordings admissible? Ultimately, there is competing case law in both these areas…
- Mother recording her conversation with the father:
The admissibility of tape recordings is treated the same was as other evidence. The court must consider first whether it is relevant to an issue at hand, and then whether it is necessary and reliable under the principled approach to admission of evidence. If the evidence is admitted, the trial judge…
There is a prohibition in the Criminal Code (s. 184(1) which prohibits the interception of private conversations, but there is an exception to this under subsection (2)(a) where the interceptor has the consent of either party and this would be the case where the inceptor is a party in the conversation.
Even when one party has recorded the conversation legally, and the other party is not aware he or she is being recorded, there are strong policy reasons NOT to admit the recordings.
Sordi v. Sordi 2011 ONCA 665, 2011 Carswell Ont 11272 (C.A.) affirming Sordi v. Sordi 2010Carswell Ont 10942 (S.C.J.): where the Court of Appeal stated at paras 10 - 12:
“Specifically, the appellant submits that the trial judge erred in refusing to admit audio tapes of recordings of conversations between himself, the respondent, and the children – tapes that he recorded without the respondent’s knowledge.
… In my view there was nothing unfair or improper about the conduct of the trial.
Specifically, there is no reason to question the exercise of the trial judge’s discretion not to admit the proposed evidence about which the appellant complains. With respect to the taped conversations, the trial judge relied on solid principles that took into account not only the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings but also his assessment of the probative value of the tapes in relation to the issue before him.”
Fielding v. Fielding, 2013 ONSC 5102
The respondent's conduct in taping telephone conversations between the applicant and the children is very problematic. In his questioning, he answered: "She was speaking with my children if they asked me to record it." "It was typically when the children would be asking me. They would want me to get evidence for themselves of what the conversation had been" .... "Sorry, if I said "evidence", it was simply to validate the experience." Later in questioning, he modified his answer to say that the children did not specifically ask him to record conversations, rather, they would put on the speaker phone so that he could hear it, but did not actually know that he was recording their conversations.
The admissibility of recorded conversations was not raised as an issue in this case. Nonetheless, I would like to reiterate the comments of Justice Sherr in Hameed v. Hameed, 2006 ONCJ 274, 2006 CarswellOnt 4653 (Ont. C.J.) at para. 11:
11 ...Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.
I find it likely the children did know that their father was taping some of their conversations with their mother. This is an insidious involvement of the children in the parents' dispute. It is indicative of the lengths the father would go to advance his claim for custody by attempting to discredit the mother in the eyes of the children and the court. Sean was with his father on January 15, 2012 and knew his father was recording the exchange between the parents. He heard them debate the legality of it. On this occasion, the father makes it 100 percent clear that it's up to Sean when or if he will return to his mother's house. He says in Sean's presence, "I'm not gonna force him back," "I am not returning him against his will," and "I will return Sean when he wants to go."
When custody and best interests of the child are at issue, however courts sometimes do admit the evidence, even it is was illegally obtained.
Reddick v. Reddick, [1997] O.J. No. 2497 (Ont. Gen. Div.),
Surreptitiously obtained tape recordings were allowed into evidence. The court held that if the tapes were reliable, relevant and of probative value to a determination of what was in the best interests of the children, they were admissible irrespective of their repugnance to the court as to the manner in which they were obtained. See also: B. (G.) v. B. (D.), [1998] O.J. No. 5375 (Ont. Master); Dueck v. Dueck, 1999 SKQB 178 (Sask. Q.B.); and M.(L.C.) v. V.(C.A.), [2000] O.J. No. 2591 (Ont. S.C.J.).
F. (A.) v. W. (J.), 2013 ONSC 4272, Harper J. at paras 54-56:
During the trial of the review, a voir dire was conducted in order to determine the admissibility of two recordings of access exchanges. I admitted the recordings after balancing the prejudice vs. the probative value of the recordings as well as their reliability.
I am well aware of the struggle many courts face when considering the issue of recordings made without the knowledge and consent of the other person. In Hameed v. Hameed, 2006 ONCJ 274, [2006] O.J. No. 3109 (Ont. C.J.), Sherr J. did not admit surreptitious recordings taken by one of the parties to a family law proceeding and stated, at paras. 11-13 of his reasons:
I ruled that this evidence was inadmissible. Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.
I agree with Justice Henry Vogelsang who said in paras. 5 and 6 of Tatarchenko v. Tatarchenko (1998), 83 A.C.W.S. (3d) 792, [1998] O.J. No. 4685, 1998 14087, 1998 CarswellOnt 4374 (Ont. Fam. Ct.):
There is a wide scope for potential abuse in this practice.
The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge. The suspicious and disturbing circumstances surrounding the production of this "evidence" convince me that it should be struck in its entirety and should not be before the court.
The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so. The reasons that the father put forward in this matter fall well short of this standard.
I agree that in most family law cases, the surreptitious taping of the other party should be generally discouraged. I also agree that much of the reasoning behind the desire to discourage such conduct is that the parties should build trust in the other to be able to parent after separation. However, in far too many cases, like the matter before me, the goal of building of trust became masked by one party saying one thing in public and doing something very different when she thought the she was safe from scrutiny. The behaviour demonstrated in the recordings reveals that the mother's outward compliance with my June 27, 2011 order was merely a façade.
- Mother recording conversation between child and father:
The mother recording a conversation between the child and father without either party’s consent engages s. 184(1) of the Criminal Code.
Courts have clearly established that tape-recorded evidence is highly susceptible to manipulation, highly unreliable, and may therefore given little weight, particularly when the conversations involve children. In cases involving children, courts have frowned upon the surreptitious gathering of potential evidence via tape recordings and have refused to admit the recordings into evidence.
See, for example, Bauer v. Bauer [2006] O.J. No. 5109 (S.C.J.), Fattali v. Fattali 1996 7272 (ON SC), [1996] O.J. No. 1207 (Gen. Div.) and J.F. v. V.C. 2000 21095 (ON SC), [2000] O.J. No. 3978 (S.C.J.))
But see also, Behrens v. Stoodley 1999 1626 (ON CA), [1999] O.J. No. 4838 (C.A.) where contrary to what was stated in Sordi v. Sordi, the Court of Appeal found that a trial judge had properly admitted into evidence a conversation between the child and the mother which was secretly tape recorded by the father. The court stated at para 42: “In my view, the trial judge was perfectly entitled to conclude that the tape constituted “graphic and distressing evidence of venom directed towards the father and pressure exerted upon the child” and that these statements to the child “were extremely distressing” and “harmful to her emotional well-being”.”
Norland v. Norland [2006] O.J. No.5126 (S.C.J.)
Justice Smith stated at para 63: “It does not take much imagination to see how an adult could manipulate a conversation, particularly with a child, to make it appear that the child is unhappy living in the home of the other parent and wishes to live with them. Nor would it be difficult to orchestrate a conversation with a spouse to make that person appear aggressive and unreasonable”.
[37] The respondent’s negative attitude towards the applicant in the tapes is clear. His abusive language is clear. His manipulating of the child’s tears and his encouragement of the child to call his father a million times, to cry all the time, etc. is clear. The respondent testified that the suggested repeated calling and the encouragement for the child to cry as being supportive of the child’s feelings. I do not accept this explanation. “Supportive” would have been allowing the child to go to professional mental health counselling as soon as possible, not repeatedly refusing it. As such I find that the respondent has contributed to the “alienation” of J.N.1 from his mother directly and indirectly, and therefore where there is a discrepancy between the applicant’s testimony and that of the respondent, I prefer the testimony of the applicant. This is not a case of “justified rejection” by J.N.1 of his mother as concluded by the assessor in February, 2013, but rather a case of “parental alienation” by the father in the past. I have had the benefit of two more years of bad behaviour evidence than the assessor did.
[38] It is possible that the damage that has been done to the relationship between J.N.1 and his mother may be irreparable. I truly hope not for the children’s sake. J.N.1 loves his father and is doing well in his care. This is not good enough as it is totally contrary to a child’s best interests not to have a healthy relationship with both parents. I agree with Clay, J. (Ontario Court of Justice) that it would be further traumatizing for the children to lose contact with their father. It is however unjust that a parent should be rewarded for alienating behaviour by allowing the child to remain in the custody of that parent. It also is a terrible lesson for J.N.1 to have learned from his father’s support of his bad behaviour that the worse you behave the better your chances are of getting what you want. This is a lesson that will not serve J.N.1 well in life.
[39] I cannot in all conscience grant the respondent sole custody. His repeated history of his refusal to allow/consent to mental health counselling for J.N.1 and his denial of access for the two boys with their extended maternal family shows that he does not always make good decisions for the children, and in fact he sometimes makes bad decisions. There needs to be “a check and balance” in the system no matter how conflicted this case is. I am going to give the parties one last chance to both be custodial parents by awarding joint custody to both parents with respect to the two children with the respondent having the final decision making authority if they cannot agree. The children will continue to have their primary residence with the respondent. The evidence is clear that the children are settled and doing well.
[40] I am going to order that the parties enter into parental counselling at the respondent’s expense immediately. A qualified counsellor or counsellors can be recommended by CAS or the OCL and agreed to by the parties. The point of this counselling is for these parties to learn some skills in co-parenting and talking civilly and listening respectfully to each other. They also need to learn to ‘fight fair’ and not be denigrating towards each other. They need to learn to pick their fights. They need to learn to trust each other. This will take time and professional help.
[41] There is absolutely no need for supervised visits/time for the applicant in this case.
[42] The applicant shall have access with the children every Saturday for 10 hours for the next month 10:00 a.m. to 8:00 p.m. commencing this Saturday (June 20, 2015).
[43] Once the one month has expired, the applicant will have alternate weekend access with the children from Saturday at 10:00 a.m. until Sunday at 7:00 p.m., and if Monday is a holiday, until Monday at 7:00 p.m., commencing July 18, 2015. Commencing on September 19 the applicant shall have alternate weekend access from Friday at 6:00 p.m. to Sunday at 8:00 p.m.
[44] The applicant shall also have access with the children every Wednesday for a dinner visit from 4:30 p.m. until 8:00 p.m.
[45] The applicant and the respondent can both attend any and all extracurricular activities of both boys and interact actively with the coaches and staff and the children like “normal” parents. The respondent shall provide the information of such events within 48 hours of the registration into such events. The applicant shall be given the calendars related to these events within 24 hours of the respondent’s knowledge of the same. The parties shall agree on the sports the children are registered in (soccer, baseball, hockey).
[46] The exchanges shall take place at the respondent’s home with the applicant remaining in her vehicle.
[47] The children’s school, doctors, etc. shall not be changed without the written consent of both parties. Both parties shall have direct contact with the school, doctors and any and all service providers to the children.
[48] The children shall spend the last two weeks in the month of July with the applicant each year from July 15 to July 30 in each year commencing in 2016.
[49] The children shall spend March Break and the latter half of the Christmas break with the applicant each year commencing immediately.
[50] The children may attend any and all special maternal family functions with five days’ notice to the respondent in writing, to a maximum of eight extra functions per year. Christmas, however, shall be as outlined above.
[51] The children shall spend every Mother’s Day with the applicant and every Father’s Day with the respondent from 10:00 a.m. to 4:00 p.m. regardless of which parent has access that weekend.
[52] The respondent shall have the primary residence of the children with him. Both boys are settled and doing well in the respondent’s primary care. J.N.1 in particular, is extremely bonded with his father.
[53] The boys may have reasonable telephone access with the other parent a maximum of two times per day when in the other parent’s care. Both parents shall enforce this rule.
[54] There has been so much mistrust and miscommunication between the parties that I am ordering the use of a communication book to travel with the boys on each access exchange. The contents shall be limited to child-related issues only and will update the other parent on any and all child-related issues that have occurred since the last exchange.
[55] Much to my great pleasure after approximately five days of testimony into this trial the parties, in particular the respondent, seemed to have an epiphany that their behaviours needed to change. Both parties at this time agreed to “draw a line in the sand” and the respondent and Ms. A.M. agreed to try to actively support J.N.1’s attendance with the applicant for access.
[56] On June 5, 2015 on a verbal motion by the applicant, this Court ordered unsupervised access between the applicant and the two boys every Saturday for nine hours (10:00 a.m. to 7:00 p.m.) and two dinner visits during the week each week pending a final order of this Court.
[57] This new “line in the sand” behaviour worked very well and on Saturday June 7, 2015 the two boys attended access with their mother. This was J.N.1’s first visit with his mother in two and a half years. The father and step-mother, Ms. A.M., to their great credit, took the two boys out for dinner on the Friday night before access and told the two boys about the Saturday access and totally supported J.N.1’s attendance. The support of his father regarding the access seemed to make all the difference in the world.
[58] On Saturday June 7, 2015 both the respondent and Ms. A.M. walked both boys to the applicant’s car and helped them in and waved good bye. These actions, it is my belief, gave the children “permission” to go and have a nice time and they did. J.N.1 expressed concerns that he would not be able to continue to live with his father. His father assured him that this was only a visit. It seems that having his father and his step-mother provide a totally supportive role regarding access accomplished in one day what $3,000.00 of unification therapy could not and what two and a half years of court orders could not.
[59] The Court commended the parties and Ms. A.M. on this wonderful step. The Court used the analogy of “drawing a line in the sand” and trying to go forward. We cannot change any of the events of the past. We can only change the events in the future. The parties have acknowledged that they agree with a plan of “drawing a line in the sand” and trying to do things differently in the future. On June 10, 2015 the respondent gave to the applicant a gift card that he had for a local popular restaurant to use last week for her dinner visits with the children. The respondent felt going out to a nice restaurant would help to make access with their mother a more positive experience, in this initial stage, especially for J.N.1 who had refused any access for over two and half years with his mother. The applicant accepted graciously the gift card. Since then there has been a second dinner visit and a second all day Saturday visit. They all went equally well.
[60] I am very impressed with this new behaviour. I am however concerned that these parties will need some professional support to learn “new ways” with each other and sustain this. I am going to order that these parties (and hopefully Ms. A.M.) will become involved with a therapist who can help them to transition into their new positive relationships and to learn new skills in co-parenting with civility and mutual respect and will learn how to fight(disagree) “fair”. In the past these parties have sunk to very low levels – calling each other derogatory names, etc. They must learn to treat each other with respect and civility now if they are to succeed.
[61] The benefit of the trial seems to have been that the parties have begun to see each other in a better light. This is a wonderful but unexpected development. It has made writing this judgment difficult because I must make difficult findings on the past facts. I have made these findings, but have based my order on the past and the present situation.
[62] If either child has been registered in a sports activity (soccer, baseball or hockey), that require attendance every Saturday (on the applicant’s weekend) or alternate Saturdays (on the applicant’s weekend), the applicant shall take the children and attend with them. The respondent may also attend.
[63] If the children have a friend’s or paternal family birthday party on the applicant’s weekend that access shall be made up the following Sunday with an eight-hour visit from 12:00 noon to 8:00 p.m. (on the respondent’s weekend).
[64] The applicant shall have alternate Friday evenings from 5:00 p.m. to 9:00 p.m. (not on her weekends) visits with each of the boys separately. This will ensure that each child receives some one-to-one time with the applicant commencing on July 24, 2015.
[65] Both parties may travel outside of Canada for sports tournaments with each child with the consent of the other in writing. Said consent shall be provided within 24 hours of the written request. No reasonable consent shall be withheld.
[66] The respondent shall hold the children’s passports and birth certificates in trust for the boys and provide them as required to the applicant.
CHILD SUPPORT
[67] On July 7, 2014 Trimble, J. made an order that the mother earned income of $60,000 per year. This had been the approximate amount of her income from rental space in her home plus her employment. She has not held such employment since November 2014. At trial the applicant called her previous employer John Fleming (lawyer), Director of the Legal Clinic. Mr. Fleming testified that in the beginning the applicant was a wonderful employee. She was determined and hard-working. In late 2013 her work began to suffer due to the stress she was under after the apprehension of her children. In August 2014 the applicant went on sick leave from her job. She was expected to return in November 2014. In November 2014 the applicant was still not in a position to perform her job skills adequately. She voluntarily left her job in November 2014. Mr. Fleming testified that if she had not left voluntarily she may have been forced out for cause. The applicant testified that she was not functional as she was still overwhelmed.
[68] With no job the applicant had to sell her home and pay her debts. She did not pay the arrears of $24,000 for child support. The assessment had cost (in total) approximately $44,000. She paid her one-third share. She also has had to pay for expensive follicle and urine testing at the order of this Court. She did not qualify for Employment Insurance until approximately March 2015. Since then E.I. has been paying her approximately $200 per week or $400 every second week. She is living in a one-bedroom apartment that is geared to income. She is living far below the poverty line. As such I am going to vary the present order of Trimble J. dated July 7, 2014 from $900 child support per month to $0, and s.7 to $0 commencing November 2014 pending further order of this Court. I am satisfied that the applicant liked her job and did not leave it for any devious reason – she just could not perform her duties due to all the aforesaid circumstances. She was totally overwhelmed.
[69] I am also staying the payment on the Interim order fixing the quantum of arrears pending further order of this Court. She is living on approximately $850 per month at the present time. This figure is far below the poverty line in Canada. She has no means to pay the arrears at present. The issues of the interim order fixing the quantum of the arrears and the issue of spousal support are dismissed, but leave is granted to the parties to bring these issues back before this court at a later date. This court did not hear any evidence on these two issues so is not in a position to make findings on the same.
[70] The applicant shall continue under medical and psychiatric care and remain on any and all medications as prescribed by the same.
[71] Support Deduction Order to issue.
COSTS
[72] The parties have 30 days to submit no more than three type-written pages on the issue of costs if they cannot agree between themselves on the disposition of costs.
Snowie, J.
Released: June 17, 2015
CITATION: N. v. N., 2015 ONSC 3921
COURT FILE NO.: 27/09
DATE: 2015 06 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.N.2
Applicant
- and -
R.N.1
Respondent
REASONS FOR JUDGMENT
Snowie, J.
Released: June 17, 2015