ONTARIO

SUPERIOR COURT OF JUSTICE

NEWMARKET COURT FILE NO.: FC-12-40459-02

DATE: 20150902

BETWEEN:

Mark Jeremy Barson
Applicant

– and –

Teresa Linda Barson
Respondent

Ruby Leung, Counsel for the Applicant

Respondent, Self-represented

HEARD: August 31, 2015

Ruling

jarvis j.:

[1] This Ruling involves the residency of a 13 (almost 14) year old child and has been brought, and heard, on an emergency basis.

Factual Background

[2] The husband and wife were married on July 8, 2002 and separated in 2010. There is one child of their relationship namely Melissa Jill Barson (“Melissa”) born October 2, 2001.

[3] The parties settled all issues arising from their marriage, and its breakdown, by Separation Agreement dated July 14, 2011. The parenting provisions provided that the parties would share joint custody of Melissa but that she would reside primarily with her mother, the wife. While there is a dispute resolution provision contained in the Agreement, it is not relevant for the purposes of this Ruling.

[4] In accordance with the Agreement Melissa spent the first two weeks of her 2015 summer vacation in July with her father, the husband. She did not return to reside with him at the end of the scheduled time and on August 25, 2015 the husband commenced this Application for, among other things, custody of Melissa, child support and an Order appointing the Office of the Children’s Lawyer. The relief requested also involved an Order that the child be registered for high school in the district where the father resided. This motion was presented as an urgent matter due not only to the issue of school registration but also the emotional well-being of the child should she be returned to her mother’s residence.

[5] The father delivered a detailed affidavit narrating the history that predated his Application and the wife (who represented herself when the motion was argued) delivered a responding affidavit to which the father briefly replied.

The Evidence

[6] While the parties’ evidence differed mostly in terms of interpretation, the following facts were clear:

(a) In late February, 2015 and while residing with her mother, Melissa ingested 15 Tylenol pills before going to school. The school became concerned about her behaviour and Melissa was taken to the Emergency Department of the Hospital for Sick Children in Toronto where she was assessed and later released;

(b) Prior to Melissa’s hospitalization, Melissa had been attending counselling through the father’s Employee Assistance Program between 2012/2013 to February 2014. Beginning in November, 2014 she began attending counselling sessions at Kinark Child and Family Services (“Kinark”) on a roughly bi-weekly basis. An Assessment/Treatment Plan report was filed as part of the father’s evidence and it noted a continuing issue between Melissa’s parents about with whom she should primarily reside. Melissa reported having a strained relationship with her mother, that there were problems in terms of their communication, the mother indicating that she wished to have a better relationship with her daughter and that in recent years that relationship had suffered. Melissa stated that she wished to live with her father. The two goals noted in the report involved the mother developing a healthier, more positive, way to interact with Melissa with a view to building a stronger relationship between them;

(c) After the HSC hospitalization, the parties continued therapy with Kinark. A Treatment Plan review recorded Melissa as always feeling “unhappy” or “always sad” and while minor improvements in communication and relationship with her mother were noted, nonetheless there remained a cool relationship between them which led Melissa to state that she didn’t wish to resume family therapy with her mother;

(d) On July 23, 2015 and while bicycling with her step-mother, Melissa observed her step-brother (a child from a previous relationship of the wife) in her vicinity. The child had a very poor relationship with her step-brother and as she had refused to return to her mother’s residence, she thought that the step-brother was present in the area to take her to her mother’s home. Melissa suffered a panic attack and was admitted to the Emergency Department of the Southlake Regional Health Centre where she was assessed and later released;

(e) On July 31 and while the father was driving with Melissa in his automobile, Melissa had another anxiety attack while speaking on the telephone with her mother, vomiting in her father’s automobile;

(f) The father reported that, after this second panic attack, Melissa told him that if she was compelled to return to her mother’s residence she would leave and walk back to his residence.

[7] In mid-July of 2015 the father retained counsel. An exchange of correspondence between counsel and the mother during the balance of July dealing with Melissa residing with her father, which the mother opposed, followed. Counsel suggested in a July 24, 2015 letter to mother that mother attend with the child and her counsel at Kinark on July 27. The mother did not attend that session, indicating in her evidence that she had misunderstood the invitation due to some recent surgery from which she was recovering.

[8] The mother insisted upon speaking with Melissa alone. On the two occasions that Melissa met with her mother the child either didn’t wish to discuss the residency issue or told her that she was reluctant to return to her mother’s residence until the issue of her primary residency was resolved.

[9] On August 21, 2015 Melissa and her parents met with Melissa’s family physician, Dr. Salehi. After a private meeting between Dr. Salehi and Melissa the parents met privately with Dr. Salehi. The husband deposed that Melissa had expressed to Dr. Salehi “her strong desire to reside with me and [Dr. Salehi] reassured [the mother] that I was not the culprit behind this proposed exchange. The [mother] was not receptive to Dr. Salehi’s advice and insisted that I was influencing and manipulating Melissa. Dr. Salehi encouraged the [mother] to listen to Melissa.” It is telling that the mother chose in her evidence not to comment upon, or contradict, the father’s evidence about what Dr. Salehi had told the parents about Melissa’s discussions with him. It was after this meeting with Dr. Salehi that Melissa and her mother had their second opportunity to speak privately (although the mother’s sister, who did not participate in their discussions, was present at that meeting). After the family’s meeting with Dr. Salehi, Melissa’s therapist (Ms. Ebrahim) called the mother to inform her that Melissa no longer wished to continue her counselling sessions with her (Ms. Ebrahim) at Kinark although neither parent was able to provide any reason why Melissa wished to discontinue her therapy. Both parties agreed, though, that ongoing therapy and treatment was critical to Melissa’s mental health and emotional well-being.

[10] Complicating this situation and adding another element of urgency to the parties’ motions was the issue of high school registration for Melissa. Although the parties had agreed that Melissa would attend a Catholic School, the mother had already registered Melissa in the local high school in the school district where she resided. If Melissa were to be primarily resident with her father he wished Melissa to be registered in a high school near where he resided. This registration would need to be effected as soon as possible.

Analysis and Disposition

[11] Both parties agreed that the Office of the Children’s Lawyer should be appointed to represent Melissa and so an Order was made in that regard at the conclusion of argument. As for the issue of Melissa’s primary residence, the court’s focus is, first and foremost, on Melissa’s well-being. The evidentiary record substantiates a continuing, and problematic relationship between Melissa and her mother since shortly after her parent’s separated. It is impossible to determine on the evidentiary record before me whether the distress that the child is experiencing is a result of a continuing conflict between her parents caused by her father’s failure to accept Melissa primarily residing with her mother (which is what the mother contends) or whether the poor situation in the mother’s household, which the mother explains as a not uncommon issue arising with a teenage child (and which the husband disputes) is the primary cause. Suffice it that Melissa has been affected and that is impacting her well-being.

[12] While the mother appears to downplay the challenges that Melissa has been experiencing, and continues to experience, two things are patently obvious: Melissa is very unhappy with the current residential arrangement and that unhappiness has been consistently reported to third parties such as her therapist, family doctor, and attending emergency physicians. Even so, there is no reason why there should be any interruption in the therapeutic arrangements with Kinark nor should Melissa’s progression to high school in the district where she has been residing for school purposes to date be interrupted.

[13] Therefore, the following Order is made:

(1) The child Melissa Jill Barson born October 2, 2001 shall reside with her father on a temporary, and without prejudice, basis;

(2) The mother shall have reasonable access with the child as the parties and child may agree;

(3) The child shall attend Dennison High School. The father shall be responsible for all transportation arrangements to enable Melissa to attend that school;

(4) The mother shall provide the father with Melissa’s Health Card;

(5) Melissa shall continue therapy at Kinark Child and Family Services with therapist Zaynab Ebrahim. If Ms. Ebrahim is unable or unwilling to assist, Kinark is requested to assign another therapist;

(6) The mother shall deliver her responding pleadings on or before September 25, 2015;

(7) A Case Conference shall proceed on September 28, 2015 at 9:30 a.m. Both parties shall comply with the applicable Case Conference procedural and disclosure rules; If that date is unavailable the parties shall forthwith contact the Trial Co-ordinator to reschedule;

(8) No Order shall be made for child support at this time but without prejudice to the husband’s claim for an Order in this regard at the Case Conference or on motion afterwards. Pending that determination he is relieved, effective September 1, 2015, of his obligation to pay table child support of $641 monthly as set out in paragraph 5.3 of the parties’ Separation Agreement.

[14] Costs of this motion are reserved to the trial judge.

Justice D.A. Jarvis

Released: September 2, 2015