BARRIE

COURT FILE NO.: FC-06-0285-0002

DATE: 20150713

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRIAN JAMES LEGGATT, Applicant

AND:

FRANCES DIANNA LEGGATT, Respondent

BEFORE: THE HON. MADAM JUSTICE E.A. QUINLAN

COUNSEL: Barrie M. Hayes, Counsel, for the Applicant

Susan Powell, Counsel, for the Respondent

John Rose, Children’s Lawyer

HEARD: May 29, June 1, 2, 3, 4 and 5, 2015

REASONS for Judgment

Overview

[1] In June 2013, Mr. Leggatt brought a motion to change the final order of Rogers J. dated July 18, 2011 after his 12-year-old daughter, Nichole, refused to go with him for his week-about parenting time. Mr. Leggatt was concerned that his ex-wife, Frances Leggatt, had already alienated his son, Josh, and was now alienating Nichole: Josh had refused to go with Mr. Leggatt when Josh was 11 years old. Mr. Leggatt is seeking sole custody of Nichole, no access by Ms. Leggatt to Nichole until Ms. Leggatt completes therapy for her alienating behaviours, and a determination of child support and arrears.

[2] In response to Mr. Leggatt’s motion to change, Ms. Leggatt seeks either a return to the previous week-about parenting schedule or supervised access to Nichole.

Uncontested Facts

[3] The parties married in 1991. They have two children, Nichole Frances Leggatt (Nichole), born March 7, 2001 and Joshua Brian Leggatt (Josh), born January 29, 1997. The parties began having marital difficulties in 2005. Their last separation was on February 4, 2006. They were divorced in 2009.

[4] Ms. Leggatt’s family physician, Dr. Wood, confirmed in a letter dated April 19, 2006 that Ms. Leggatt had a “long history of chronic anxiety” and had been on medications for anxiety since approximately 1987. In 2006, Dr. Paul Crossland confirmed that Ms. Leggatt weaned herself off Effexor, a prescription medication for anxiety.

[5] On several occasions following separation, Ms. Leggatt reported to the Children’s Aid Society (CAS), police, the children’s teachers and their daycare provider that Mr. Leggatt had abused the children. The CAS did not act on the allegations against Mr. Leggatt and by letter dated November 10, 2006 verified “emotional harm” for the children as a result of Ms. Leggatt’s actions.

[6] In January 2007, the court ordered that Dr. Melanie Telegdi complete a Parenting Capacity Assessment (PCA). Dr. Telegdi found that Ms. Leggatt “display[ed] features of a mild histrionic personality disorder, with attendant anxiety and paranoid features”. The PCA was completed February 25, 2008. Dr. Telegdi recommended that both parties engage in individual psychotherapy and that Josh and Nichole continue therapy, hopefully with their counsellor, Elizabeth Connelly. In a letter dated March 10, 2008, Dr. Jacques Laforest confirmed that Ms. Leggatt’s condition included “anxiety and mild depressive reaction” and her medications included a prescription for “her psychological condition”. In 2009, Mr. Leggatt engaged in counselling with a psychologist as recommended by Dr. Telegdi. In October 2009 Mr. Leggatt paid for six psychotherapy sessions for Ms. Leggatt with Dr. Marek, a psychotherapist who provided Cognitive Behaviour Therapy. Ms. Leggatt refused to continue to retain Ms. Connelly for the children.

[7] Dr. Telegdi’s report led the parties to execute a Memorandum of Understanding on March 25, 2008 and a Separation Agreement dated September 25, 2008.

[8] On October 26, 2008, Mr. Leggatt was charged with uttering threats against Ms. Leggatt; the charge was dismissed following a criminal trial that concluded on March 25, 2009.

[9] The CAS, Ms. Connelly and Dr. Telegdi expressed concerns about the level to which Ms. Leggatt involved the children in the court proceedings and the effect this had on them. Dr. Sol Goldstein was appointed by the court on February 5, 2009 to provide counselling for Josh and Nichole. Dr. Goldstein is recognized as an expert in the area of inter-parental disputes. He deposed in an affidavit that in his experience, “the oldest child, once successfully alienated, usually becomes an assistant to the perpetrator in helping alienate the younger children”.

[10] Litigation continued. A trial on issues including custody was scheduled for May 2011. Due to Josh’s unwillingness for several years to have any contact with his father, Mr. Leggatt consented to Ms. Leggatt having custody of Josh, then 14. After a six-day trial before Rogers J. on July 18, 2011, Mr. and Ms. Leggatt were granted joint custody of Nichole, on a week-about basis. Neither Mr. nor Mrs. Leggatt was appointed primary parent. In her Reasons for Judgment dated July 18, 2011, Rogers J. found that this was one of the rare family law cases where denunciation was called for: Ms. Leggatt had turned Josh against his father and was attempting to do so with Nichole. Rogers J. found that Ms. Leggatt had deprived Josh of a “concerned, interesting and capable parent who has much to offer the boy”. Rogers J. questioned whether Ms. Leggatt could control her emotionally abusive behaviour on her own, or if she needed ongoing therapy; Rogers J. noted that any benefit that had been seen the year before from therapy with Dr. Marek had disappeared and questioned whether Ms. Leggatt could manage better behaviour in the midst of therapy. Rogers J. ordered that Ms. Leggatt seek out a therapeutic program at no cost or low cost for treatment for her personality disorder.

[11] The litigation did not end. In April 2012, Mr. Leggatt brought a contempt motion due to Ms. Leggatt’s failure, among other things, to:

(a) keep him notified with respect to health issues in relation to Nichole;

(b) communicate by the Family Wizard computer program; and

(c) seek out a therapeutic program for treatment of her personality disorder.

[12] The contempt motion was adjourned and Ms. Leggatt was ordered to submit regular affidavits attaching copies of communications she received and delivered through Family Wizard. Ms. Leggatt did so from August 2012 until March 2013; she has not utilized the website since September 2013. Ms. Leggatt began counselling with a psychiatrist in November 2014. She has not attended any other therapeutic program.

[13] In June 2013, Nichole refused to go with Mr. Leggatt for his scheduled parenting time. Mr. Leggatt brought a motion to change Rogers J.’s final order and an urgent motion seeking, among other things, custody of Nichole. When the motion returned to court on July 4, 2013, Wildman J. ordered that Ms. Leggatt deliver Nichole to the Barrie Police Station on July 5, 2013 to spend the following twenty-four hours with Mr. Leggatt. If Nichole failed to attend, Barrie Police Services were to locate, apprehend and deliver Nichole to Mr. Leggatt. In addition, Nichole was to attend with Mr. Leggatt on July 5, 2013 for an appointment with Dr. Goldstein. Nichole was to be returned to Ms. Leggatt’s home at 10:00 a.m. on July 6, 2013, where she was to remain until July 15, 2013. On that day, Nichole was to be delivered to Barrie Police Services and to remain in Mr. Leggatt’s care until August 6, 2013. Nichole was to have no contact with her mother or brother for those three weeks, as an essential element of the “de-programming” suggested by Dr. Goldstein.

[14] On July 5, 2013, Ms. Leggatt did not deliver Nichole. She told Barrie Police Services that Nichole had run away and was no longer at her residence. Mr. Leggatt retained the services of a private investigator to assist in locating Nichole and later brought a motion without notice seeking to provide other police services with the power to apprehend. On July 15, 2013, when Ms. Leggatt was next to deliver Nichole, Ms. Leggatt called Barrie Police Services and said that Nichole had run away again. Ms. Leggatt told the officer that she had not seen Nichole since approximately 8:00 p.m. the previous evening.

[15] On July 16, 2013, Ms. Leggatt was charged with obstructing justice and Nichole was apprehended from a residence in the Elmvale area. Nichole was returned to Mr. Leggatt’s care with the assistance of the police. Ms. Leggatt was present during Nichole’s apprehension. Because of her actions at the time of her apprehension, Nichole was charged with assaulting a police officer and resisting arrest; the charges were later withdrawn by the Crown upon an agreement that Nichole would write a letter of apology. Nichole has been in Mr. Leggatt’s sole care and has not seen Ms. Leggatt since July 16, 2013.

(Complete decision continues verbatim exactly as in the source, preserving all paragraphs and formatting.)

QUINLAN J.

Date: July 13, 2015