Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Erik John Crosby Martin, Applicant
AND
Rachel Hanoski, Respondent
BEFORE: Madam Justice Mackinnon
COUNSEL: Carole Cochrane, for the Applicant Rachel Hanoski, Self-Represented
HEARD: February 2, 2016
ENDORSEMENT
1On June 10, 2014 Justice Pelletier made an order in accordance with the Minutes of Settlement signed by the parties. The order awarded sole custody in terms of decision making to the respondent mother. It set out a living arrangement that had the children residing with their father for 10 days in each 28 day cycle and with their mother for the balance. Paragraph 25 of the order stated that as of June 2015 “assuming that the tensions in the family have been reduced and that all four children are not showing any outward signs of distress, it will be appropriate to move to a 50/50 access schedule.” Paragraph 26 of the order then provided that the parenting schedule commencing June 30, 2015, and continuing until June 30, 2016, would be what is known as a 2:2:3 schedule which shares the children’s time equally between their parents.
2Paragraph 28 is also relevant and provides that, “upon the children living with the parties under a shared residential schedule/arrangement in June 2015, the Applicant shall be at liberty to bring a motion to seek joint custody of the four children.”
3There are four children of this marriage: Gabriel who is 11, and Frederick, Roland and Ruby who are 6 year old triplets.
4The applicant father’s motion seeks implementation of the shared living arrangement in accordance with paragraph 26 of the order, and joint custodial decision making. He submits the onus is on the mother to show that the tensions and distress referred to in paragraph 25 of the order still exist if she is to successfully avoid implementation of paragraph 26. He acknowledges he has the onus to establish the material change of circumstances necessary to obtain joint decision making.
5The respondent mother opposes the motion on the grounds that there are still significant tensions in the family and two of the children are still showing outward signs of distress. She says the children have improved, but not to the extent that the order should be changed. In her view it is up to the applicant father to establish that the assumptions made in paragraph 25 have in fact occurred and that both orders sought are in the best interests of the children.
6In my view the assumptions made in paragraph 25 are akin to pre-conditions. I find their existence must be established by the applicant, and that he must establish on balance of probabilities that the living arrangements contemplated by paragraph 26 are now in the best interests of the children. I agree that he also has the onus to establish a change in circumstances rendering joint decision making in the children’s best interests at this time.
7There is also an issue between the parents as to the meaning of part of paragraph 25. The words in issue are “assuming … and that all four children are not showing any outward signs of disturbance”. The father says this means the new living arrangement is to happen unless all four children are showing outward signs of distress. The mother takes the opposite view. She says that if any one of the children shows outward signs of distress the change should not be implemented. I disagree with the father’s interpretation. It would mean that if three of the four children were showing outward signs of disturbance, and only one child was not, that the residential arrangements for all four children should be changed. That is not an interpretation that accords with the governing principle, namely, that the duty of the court is to advance every child’s best interests.
8The portions of the court order touching on the issues in this motion are derived from the custody and access report prepared on consent of the parents by Mr. Ron Stewart. His report dated July 3, 2012 is contained in the motion record. It provides the background context against which I should consider whether the pre-conditions in paragraph 25 of the order have been satisfied. The report is a comprehensive 64 page report. I will not attempt to summarize it, but rather will set out the observations, findings and conclusions that seemed to me most pertinent to the issues before me:
- The father tends not to negotiate with the mother; rather, he tends to dictate to her and to make unilateral decisions. This was an important reason why joint decision making was not recommended. In recommending sole decision making authority to the mother, it is noted that the father must understand that while she will canvass his opinion, she will still be solely responsible for the final decision.
- The parents could occasionally co-operate, but these occasions were short-lived;
- The parents’ communication was hostile and highly conflicted and needed to be improved for the sake of the children.
- The father imposed an interim shared custodial arrangement which did not take the essential developmental needs of the three younger children into account and which schedule also created too many changes for Gabriel to securely negotiate. The father wanted to protect his status as an involved parent. His determination to be an equal parent had more to do with his own needs than with the children’s needs.
- The father caused tension and conflict to which the children were exposed by intruding on the mother’s time and space with the children. He criticized the mother in an effort to promote himself, and showed what was described as a competitive approach with her over the children. He seemed unaware of how his behaviour inflamed the conflict between the parents.
- The father favoured Gabriel over the three younger children, made excuses for Gabriel’s aggressive behaviour and had a blind spot when it came to managing Gabriel or disciplining him. Gabriel had displayed aggressive behaviour at home, school and in social settings.
- Gabriel feels he is responsible for his father’s happiness. He is also very aware of the tension between his parents and that they fight mostly about himself and his siblings. He has developed a set of catastrophic fears and worries that neither parent has been able to reassure him about. He had no one to confide in. It was recommended that he should see a mental health professional to help him find ways to deal with his upset, sadness and anger towards both parents.
- All four children have a strong and healthy attachment to their mother. She was close to all of her children and was the parent with more facility in managing all four of them. She was also well able to differentiate between the needs and attributes of each of her children. She was recommended as the primary parent “at least for this stage” of the children’s development.
- The mother’s main challenge at the time was to accept that the father would play a significant role with the children in the future. This was predicted to be difficult for her because she did not trust him.
- In addition the mother was very reactive to the father. She does get very upset at him which makes him feel validated in his view that she will exclude him from the children’s lives.
- The most important need of the children is for a halt to the fighting, anger and conflict that surrounds them. The residential arrangement should help to shelter them from exposure to stress and tension.
- Psychotherapy was recommended for both parents. For the mother, the therapy is recommended to help her reduce her distress, anger and sadness related to the separation. For the father, the therapy is recommended to identify and correct behaviours and attitudes which are detrimental to the children’s mental health and which promote tension and conflict between him and the mother.
Tensions in the Family
9Have the tensions in the family been reduced? A direct comparative finding is difficult for a variety of reasons. Mr. Stewart’s observations were set out in his report dated July 2012. The Minutes of Settlement were signed in November 2013. The final order is dated June 10, 2014. The evidence on the issue was not entirely focused on or confined to any one particular date. The motion to change proceeded on the written record. No questioning was conducted. Many facts were in dispute.
10Despite these challenges I find that there are still significant tensions in the family, as illustrated by the following examples.
11In January 2015 the mother wrote to the father to advise that the car seats he had started to use for the triplets did not meet legal requirements. He wrote back to say he disagreed. She sent him print outs of the regulations. A number of further communications followed. Finally, in September 2015 a court order was made requiring the father to obtain and use the legally required car seats. In his affidavit dated November 5, 2015 the father explains:
In relation to the issues of the car seat, I had thought I was in compliance with Transport Canada guidelines, not realizing that the law had changed requiring a minimum of forty pounds. (Historically it was a combination of weight and height). This has now been rectified.
Perhaps it bears noting however that the car sear offered to me by Rachel was in fact in contravention of the very regulations she was chastising me for not adhering to. In any event, a regulation-compliant car seat has been obtained by me and there is now no issue.
12This statement seems disingenuous; the respondent had sent him the applicable standards. It is consistent with Mr. Stewart’s observations about the father’s tendency to not take responsibility and to criticize the mother.
13Gabriel is still caught in the middle of the parental conflict. In June 2015 his mother overheard Gabriel telling his father something about her that in her view was absolutely untrue as well as negative. When the phone call ended she queried Gabriel and says he told her he had said this to his father because he thought it would make him happy. She also says Gabriel told her that his father had given him with a cell phone to use to contact him if he was in pain or danger. Gabriel said this had made him feel sneaky. The mother sent an email to the father voicing her objections to what she felt was the father pressuring Gabriel.
14The father deposed in his affidavit that a few weeks after the telephone call Gabriel took back what he had said, but then later in the same conversation said it was true but his mother had told him to tell his father that it wasn’t. The father went on to describe his own questioning of Gabriel:
Prior to responding to Rachel’s email, I asked Gabriel about the comments he had made to his mother, specifically in regard to making comments to me under pressure or that he thought I would like to hear. He clarified that when his mother raised the issue, she put it to him that she thought he was being pressured by me to say things in my favour to Dr. Cappelli. She then said to Gabriel: “Well, do you agree or disagree?” Gabriel felt pressured and concerned that his mother would get angrier with him so he told me he saw no other choice but to say he agreed. Gabriel said Rachel did the bulk of the talking during that discussion and he either said nothing or acknowledged agreement. I truly felt horrible for him as he relayed this to me as he was so conflicted. I reassured Gabriel that I supported him no matter what his responses were. Gabriel was visibly upset and frustrated. I addressed my concerns with Rachel in my emailed response to her, a copy of which is attached marked as Exhibit “H” to this my Affidavit.
15Clearly tension still exists and clearly Gabriel is still well aware of it.
16In June 2015 Ruby was with her father. She fell and cut her foot. Stitches were necessary. The father notified the mother, and then took Ruby to hospital. After a long wait during which time the parents got along quite well, the child’s name was finally called to proceed with one parent only into an examining room. At this point the parents conflicted over which one of them would accompany Ruby. The mother says Ruby was asleep in her arms, so she naturally stood to proceed to the examining room, but the father obstructed her. The father says Ruby was awake and reached her arms out for him to take her, naturally, he says, since she had arrived with him, but the mother insisted on going in with her stating it was her right as custodial parent.
17Whichever way it happened the result is Ruby was obviously exposed to this disagreement. Her mother did go in with her but was able to have the father join them shortly, before the doctor arrived or put in the sutures.
18The mother felt the father had been careless with Ruby. She says the cut was 7 cm by 3 cm. It did require seven stitches. The mother took two photos at the hospital, one of the untreated cut, and the other of the cut as sutured. Taking these photos may not have been distressing for Ruby since her cut was the focus of everyone’s attention then anyway. Taking the photos does show the mother’s distrust and lack of confidence in the father. For his part the father disputed the length of the cut. He took his own photos of the healed area from two angles, each with a ruler set beside Ruby’s foot, in his effort to prove the mother had exaggerated. I infer it would have been unusual for Ruby to have measured photographs taken and in this way, she was again engaged in the conflict between her parents.
19In January 2015 Frederick was sick at school. His mother came for him. The child was vomiting, with diarrhea. This was a transition day. She proposed to deliver the other three children to the father and to keep Frederick overnight. The father’s reply was that if Frederick was too sick to come to his house, would she please call an ambulance and have him transported to hospital. After more exchanges which included a threat of court action the mother woke Frederick and delivered him at 8 PM. Early the next morning the father advised the mother he was letting Frederick sleep in and would deliver him to school an hour late. The father went on to say that Frederick seemed to have had an asthma attack and asked her to make an appointment for him to see the doctor. As it turned out the mother had an appointment that morning with that doctor and said she would come then and pick up Frederick. The father criticized the mother for intruding and being inconsiderate because he had to wake Frederick earlier than he had planned.
20My conclusion is that the same parental dynamic as observed and described by Mr. Stewart is still present. The mother still does not trust the father and is alert to him overstepping the boundaries of the order. The father still does not see his contribution to the conflict. When she reacts he uses her reaction to “prove his point”. One example of this can be found in his affidavit at Vol. 1, tab 4, para. 38:
I find Rachel’s new rules about weekday activities and her refusal to notify me to be nothing but childish and vindictive. I think it is reasonable to conclude that her behavior in this regard is her reaction to my counsel’s letter of June 30th and yet another indication of Rachel’s compulsion to be in control.
21Despite his assumptions, the June 30 letter (which threatened litigation and might have been expected to cause a reaction from the mother) was not in fact forwarded to her until after the events described.
22Mr. Stewart attempted to address this dynamic by recommending therapy for the mother to work on her distress and anger from the separation and for the father to correct attitudes and behaviours which promote tension and conflict between him and the mother. During the spring of 2015 the mother asked for written confirmation that he had been attending therapy and would continue to do so. The father was not prepared to discuss this as a pre-condition to progressing the residential schedule. In his affidavit, he says:
As is clear from a review of the Assessment Report and the Minutes of Settlement later concluded, I did work with a therapist, as had been recommended by Mr. Stewart. It was in recognition of the fact that such a qualified mental health care professional’s assistance had been sought out by me that the Minutes of Settlement confirmed that I would “continue to” attend psychotherapy. That therapy concluded in the winter of 2014 when it was determined that ongoing therapy was not needed, with me being free to return/resume therapy on an as-needed basis.
23This overlooks the fact that he has not provided any information such as who the therapist was, how often he attended, whether the therapist had the report of Mr. Stewart to guide the therapy, and whether the therapist would concur that the therapy had accomplished its goals. This is all very important information for a court to have in determining whether to change a residential and decision making order. It would also be expected to go a long way to building trust and confidence in the other parent.
24In my view the question is not whether the psychotherapy is a precondition to seeking enlarged residential time with the children. The requirement for psychotherapy is an important term of the court order and an important ingredient to the hoped for progress in the parenting relationship. The absence of cogent information on this topic is a significant omission from the father’s case.
Outward Signs of Distress
25Are any or all of the children still showing outward signs of distress? In my view, they are.
26Both parents obtained brief letters from Dr. Cappelli, the children’s therapist. The father’s lawyer asked him whether the children were showing any outward signs of distress that would make it inappropriate to move to a 50/50 parenting schedule; whether the statements that Gabriel made about his desire to move to more time in his father’s home were independent or as a result of pressure having been exerted by his father; and whether the behavioural issues demonstrated by Ruby and Rolly in the school environment were school-related.
27Dr. Cappelli did not in fact answer these questions. In his letter dated January14, 2016 he said:
At this time, overall, the children are doing well from a mental health perspective. Ruby and Rolly experienced some transitional challenges when they started Junior Kindergarten (Fall 2013) but this was addressed and no longer a concern. Ruby continues to experience some behavioral challenges at school (i.e., non-compliant, disruptive, and oppositional). The school’s student services have been engaged to help manage these behaviours and some small improvements have been noted. Ruby continues to require more support than the other children. Rolly also experienced behavioural challenges and he continues to be closely monitored by the school staff. All the children appear to be learning at a grade and age appropriate level.
28The mother then also obtained a letter from Dr. Cappelli, dated February 1, 2016. It states:
Further to our conversation regarding my letter dated 14-Jan-2016 to Carole Cochrane that you were copied, I would like to provide a brief clarification to my statement “at this time, overall, the children are doing well from a mental health perspective”. Upon reflection, I do not want to minimize the children’s mental health needs and the support they require to meet their ongoing needs. This is reflected in my comments following that first introductory sentence. I also want to note, as we discussed in the past, that I felt that a more thorough psychological assessment should be conducted particularly with Ruby this fall at the latest.
I also want to be clear that my involvement with the children is to provide expert support to help address their day to day needs. I cannot provide an opinion regarding other issues (e.g. custody, access, causation related to those issues) as my clinical involvement has not addressed those issues in any meaningful way.
29Dr. Cappelli’s input was sought and received by both parents. He wrote what he wrote. I decline to accept any of the many and varied statements that each of the parent’s attributes to him in their affidavits. These are clearly inadmissible hearsay.
30Both parents agree there have been improvements in the children’s behaviour. Gabriel had been doing much better, but in June 2015 he was suspended from school after two incidents of violence. The first was conflict with a female peer; he “stabbed” her with a pencil. The next day he got into a fist fight with a male peer, threw punches and bloodied his nose.
31Ruby and Rolly have also both been suspended from a school a number of times. Ruby struck a staff person at school in February 2015. In March 2015 she acted aggressively at school 3 days in a row. In September 30 2015, she had to be removed from school due to bad behaviour. In September 2015 the school inquired whether Rolly was seeing anyone for help managing his anger. In October he kicked one girl at school and hit another.
32The father attached as an exhibit a letter his lawyer wrote in April 2015, referring to Ruby’s ongoing issues with anxiety and increasingly severe behavioural issues at school. In April the school obtained Behavioural Support Program Intervention reports for each of Rolly and Ruby. In both the stated reasons for the referral included: “disrupting class/attention seeking, difficulty with transition, bullying/difficulty on the playground, aggression, impulsivity, compliance to instruction and opposition to authority”.
33In my view these are outward signs of distress. I reject the father’s submission that because they happen at school and not at home, they are not the type of outward distress contemplated by the order.
34The father also relies on what he says are the wishes of the children to spend more time with him. There is no independent verification of the views and preferences of any of the children. The parents both allege various statements made to them by one or more of the children, in support of the position of that parent. The applicant also provided an affidavit from his wife setting out child hearsay favourable to the father’s case. I do not accept these deponents as neutral or independent sources. In my view the hearsay statements attributed to the children in these affidavits are not sufficiently reliable to be admitted as evidence of the actual views of the children. Either parent could have sought an appropriate mechanism to obtain and inform the court as to the views and preferences of the children, such as by obtaining a Voice of the Child report.
Material Change in Circumstances
35Has there been a material change of circumstances such that joint decision making should now be ordered? The father’s main submission was that if the residential arrangement was shared equally, joint decision-making would be appropriate. He also submitted that the mother used her sole decision making authority to marginalize him from the children’s lives. He submits that he should share decision-making authority in order to protect his role in their lives.
36As an example the father described what he saw as a change in her position in June or July 2015 to require him to ask her permission if he wanted to attend the children’s extracurricular activities on her residential days. He says that prior to this time, they both regularly did this and it was a non-issue. The mother disputes that those are the facts. She points to the order which does permit each parent to attend any child’s activities on weekends without regard to who is the residential parent. Her inference is that, accordingly, extracurricular activities during weekday residential time are in the domain of the residential parent.
37I agree with the mother’s interpretation of this aspect of the order.
38The father also alleged that the mother had not kept him sufficiently up to date with respect to the appointments with Dr. Cappelli. I disagree. She did keep him informed and he also actively informed himself by direct contacts with the doctor. He also gave some examples of what he regarded as exclusions from daily activities of the children, but the mother provided her own examples of including him in these same types of activities.
Conclusion
39My conclusion is that the pre-conditions to implementing paragraph 26 of the order dated June 10, 2014 have not been established. Based on the record I have I do not find that it would be in the best interests of the children to change their residential arrangements given the ongoing unresolved tension and conflict between the parents, and having regard to the serious behaviour difficulties some of the children are still experiencing at school. Nor has the father established a material change of circumstances that would show an award of joint decision-making is in the children’s best interest.
Additional Changes Requested by the Father
40The father also asked the court to make a number of other changes to the existing order. He requested an order allowing either parent to attend all of children’s extracurricular activities, including during weekdays, and to require the residential parent to notify the other parent in a timely way if a child is not going to attend an activity. I disagree that bringing these parents into more frequent contact would be beneficial to the children.
41He also requested a definition of regular or routine medical and dental appointments and a term that these would be attended by the parent with residential care on the day of the appointment. He asked for permission for both parents to attend any non-regular or non-routine appointments, together with three other specified terms detailing attendances, information and invoices relating to medical and dental appointments. The father asked for a term to be added to the order directing that the residential parent in the morning of a school day is the parent to be called by school in the event there are any “difficulties or issues” that day.
42These particular proposed changes were worded in a way that would enable him to intrude on what is the mother’s sphere of responsibility, both as a primary residential parent and as custodial decision maker. For example, it is one thing to ask the school to telephone the residential parent if a child becomes sick during the school day to come and take the child home. The father did not specifically ask for that, but proposed broader language. Three of the children have a history of significant behavioural problems at school requiring regular contact and concerted effort between home and school. For those “difficulties or issues” it is appropriate that the school contact the custodial decision making parent. Of course the parents should work together and communicate between themselves to provide their best assistance to their children, but neither the school nor the child would be assisted in the management of these issues by the order the father requests.
43The changes he proposed that I have described in [41] are confirmatory of the dynamics Mr. Stewart identified, namely the father encroaches on boundaries without regard to how this behaviour contributes to difficulties in the parental relationship. The number of detailed terms and conditions the father proposed was indicative of the parents’ inability to communicate effectively, and is contra-indicative to a joint decision making order.
44The comments made by Weiler J.A. in Kaplanis v Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373, at para. 11 (Ont. C.A.), are applicable here:
The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.
45There were two changes the father requested which are appropriate having regard to the fact that all of the children are now in full time school attendance. I amend the existing order to provide that when school is in session the transitions shall take place to and from school, that when school is not in session, regular routine transitions will occur at 4:30 PM, but that the transition time for summer holidays or other vacations shall be 12:00 noon.
46In all other respects the motion is dismissed.
47The parties are encouraged to agree on the costs of this motion. The respondent has been successful and is presumptively entitled to an award of costs. Failing an agreement I will decide the issue based on written submissions restricted to two pages plus attachments of a bill of costs and any relevant offers to settle. The respondent’s submissions are due by March 21. The applicant’s submissions are due by April 8.
The Honourable Madam Justice Mackinnon
Date: March 7, 2016
CITATION: Martin v. Hanoski, 2016 ONSC 1625
COURT FILE NO.: FC-11-889
DATE: 2016 03 07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Erik John Crosby Martin, Applicant
AND
Rachel Hanoski, Respondent
BEFORE: Madam Justice Mackinnon
COUNSEL: Carol Cochrane, for the Applicant Rachel Hanoski, Self-Represented
ENDORSEMENT
J. Mackinnon J.
Released: March 7, 2016