Court File and Parties

COURT FILE NO.: FS-15-00019909 DATE: 20160420 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Aniko Osvath, Applicant AND: Laszlo Imre Pal, Respondent

BEFORE: Kiteley J.

COUNSEL: Jennifer Ryan, for the Applicant Self-represented, Respondent

HEARD: April 19, 2016

Endorsement

Background

[1] The parents were married in Hungary in 2008 where their child, Sarolt, was born February 11, 2006. From then until January 2015, they lived in Hungary, they separated and divorced in Hungary, they moved to Canada and their younger child Kinga was born January 20, 2012. The parents separated on January 16, 2015 when the Applicant mother left the family home with the children. Both children resided with the Applicant mother with the father seeing both children regularly.

[2] As a result of conflicts involving Sarolt, the CAS intervened and, in May 2015, the CAS initiated a move by Sarolt to live with her father who still lived in the family home. The Applicant mother acquiesced in the change of residence but not in Sarolt’s subsequent refusal to see her mother. Shortly after that Kinga refused to see her father.

[3] This Application was issued at the time of the separation. The parties attended case conferences on June 1, 2015 and August 26, 2015 and on each occasion, a consent order was made including a referral to the OCL. I dealt with the first motion on October 6, 2015 by which time the parties had agreed to a detailed order for child and spousal support and I set a date for the settlement conference on December 7, 2015.

[4] For most of the period June 2015 to December 2015, the Applicant mother did not see Sarolt and the Respondent father did not see Kinga. On November 23, 2015, the OCL held a disclosure meeting and made recommendations. The parents immediately submitted a form 14B motion as a result of which I signed the consent order dated December 3, 2015 which included the following:

3. Beginning the week of November 30, 2015, the Respondent shall pick up Kinga at her childcare at 4:30 p.m. every Wednesday and Friday and drop her off in the Applicant’s building at 7:30 p.m. provided drop-offs are facilitated by Melinda Pal or Sandor Tisza.
4. Beginning January 2016, the Respondent shall have a minimum of 4 hour visit with Kinga on the weekend with exchanges to take place at Access for Parents and Children in Ontario.
5. The Applicant shall have visits with Sarolt on a weekly basis with the assistance of therapeutic services Brayden Supervision Services. Both parties shall schedule their intake within 48 hours.
6. Sarolt shall attend CDI for the SNAP Girls Program. Her intake is November 26, 2015; the program shall proceed at the first time available to CDI.
7. Sarolt shall receive a psychiatric assessment at CAMH in January or February 2016 as is available to CAMH.
8. The Applicant and the Respondent shall support and encourage the relationship that Sarolt and Kinga have with the other parent, which includes refraining from speaking negatively about the parent in the presence of the child.
9. The cost of therapy shall be shared by the Applicant and the Respondent on a 50/50 basis without prejudice to either party’s right to argue a different proportion.
10. The OCL shall review progress with treatment in 6 months and the recommendations shall reflect the situation at that time.

[5] At the settlement conference on December 7, I set a timetable for motions to be heard.

[6] On March 3, 2016 the Respondent father brought his motion to vary the temporary consent order dated December 3, 2015. Ms. Ryan asked that it be adjourned to a long motion date. I heard submissions and made an endorsement that changed Friday evenings to Friday overnight.

[7] What remains of the Respondent’s motion is a request for the following:

(1) an interim without prejudice order based on the temporary court order dated December 3, 2015 with adjustments to paragraph 3 to read: (a) Mr. Pal will pick up Kinga at her childcare at 4:00 p.m. every Wednesday and drop her off at her childcare Thursday morning 7:10 a.m.; (b) Mr. Pal will pick up Kinga at her childcare at 4:00 p.m. every second Friday, and drop her off Monday morning 7:10 a.m. at her daycare; (2) paragraph 4 of the December 3, 2015 court order would not have to be included in the order if the weekend visits would be every second weekend from Friday to Monday; (3) my proposal for the visits between Sarolt and Aniko is to start with the weekend short supervised access visits at Access for Parents and Children in Ontario (APCO).

[8] Having adjourned the father’s motion to April 19 as a long motion, the Applicant mother served a motion returnable this day in which the following relief is sought:

(1) an order increasing the access between the Respondent father and Kinga to include every Wednesday from pick up from daycare to drop-off at daycare on Thursday mornings (weekend access to remain as per the order dated March 3, 2016); (2) an order maintaining the Applicant mother’s visits with Sarolt on a weekly basis with the assistance of therapeutic service Brayden Supervision Services (i.e. an order that the Respondent’s claim for access between the Applicant and Sarolt to be at Access for Parents and Children in Ontario to be dismissed); (3) an order that the parties share the costs of sessions at Brayden Supervision Services in proportion to their incomes; (4) an order that the parties follow the recommendations of the service providers engaged for the children (Child Development Institute, CAMH, Brayden Supervision Services) in providing therapeutic services for Sarolt and Kinga.

[9] The status quo with respect to Sarolt is that she sees her mother weekly through Brayden Supervision Services. The status quo with respect to Kinga is that she sees her father and sister on Wednesday evenings and on Fridays overnight. As indicated in paragraph 1(a) of his motion and paragraph 1 of her motion, at the commencement of the hearing of the motion on April 19, the parties did agree to change the Wednesday evenings to Wednesday overnights in order to reduce the opportunities for conflict at the end of the visit.

Conclusions

[10] This family has faced enormous challenges. The evidence is clear that in early 2014, Sarolt who was then about 8 years old was demonstrating significant behavioural issues. The Respondent father blames the mother’s parenting practices and insists that it is not his fault that the Applicant mother and Sarolt cannot have a conversation. It is the case that in 2014 the behavioural issues which were demonstrated in Sarolt’s refusal to go to school when with the mother were lessened when the father was taking charge of school attendance. But that does not mean that the behavioural issues were the fault of the mother. Furthermore, it appears that at that time the family doctor recommended intervention for Sarolt which the Respondent father refused. At any rate, following the separation in January 2015 those behavior issues were exacerbated. And, as the OCL observed at page 14 of its report dated December 29, 2015:

The family situation has deteriorated to this point due to a multiple of factors. There is not just one problem that has caused the current situation and both parents’ explanations of the problem are too simplistic. Both parents have contributed to the difficulties in their own way and as a result, the solution must involve both parents. Everyone in the family will need to make changes in order for the situation to improve. Final recommendations regarding custody and access cannot be made until the family has participated in therapy and received additional support.

[11] The family has had the benefit of significant public and private professional assistance. In the spring of 2015 the CAS became involved in the transition of Sarolt from her mother’s residence back to the family home with her father. On June 1, 2015, Mesbur J. made a referral to the OCL that led to a clinical investigation. On November 23, 2015 the parties had a disclosure meeting with the OCL that was followed by the written report received in early January. The OCL recommended on a temporary basis that the mother have primary residence and decision making for Kinga and the father have the same for Sarolt. The OCL recommended that Mr. Pal and Kinga have a visit on Wednesdays and Fridays from 4:30 to 7:30 along with a 4 hour visit on the weekend with exchanges at a supervised access centre or agreed upon third party beginning in January 2016. The OCL recommended that Ms. Osvath have visits with Sarolt on a weekly basis with the assistance of a therapeutic service such as Brayden Supervision Services and that Sarolt attend Child Development Institute for the SNAP Girls program as well as receiving a psychiatric assessment at CAMH in January or February 2016. The OCL also recommended that both parents support and participate in therapy with Sarolt to assist her to address her emotional difficulties as they relate to the family conflict and that both parents support and encourage the relationship that each child has with the other parent. In the report the OCL indicated that the investigator would complete an updated custody and access investigation in six months taking into consideration the treatment the family has received and the family’s situation at that time.

[12] Along the way, the family sought or had assistance from the Women’s College Hospital, the Child Development Institute, St. Joseph’s Health Centre, and the family doctor.

[13] The relationship between the Respondent father and Kinga resumed immediately after the disclosure meeting on November 23 and has transitioned from Wednesdays and Fridays for 4 hours to Wednesday evenings and Fridays overnight returning to Brayden on Saturday. The parents have now consented to an order that there be another transition from Wednesday afternoons to Wednesday from daycare to Thursday morning at day care. In other words, between late November and the present, the situation changed from no access by the father to Kinga; to early evenings twice a week; to early evening once a week and every Friday overnight; and, effective April 27, to Wednesday overnights and Friday overnights.

[14] Mr. Pal asks that there be an additional change, namely that instead of every Friday overnight, he have Kinga with him alternate weekends from Friday at day care to Monday at day care. That change is opposed by the Applicant mother.

[15] I agree that it is not in Kinga’s best interest to introduce yet another change at this time. She is just 4 years old. Since January 16, 2015, there has been enormous change and controversy in her life. I agree with the Respondent father that Kinga is entitled to have additional opportunities to expand her relationship with her father. However, as will be indicated below, there remains much uncertainty with respect to Sarolt. There is considerable evidence as to the conflict in the relationship between Sarolt and her mother. There is little evidence that Kinga is benefitting by spending the existing time with Sarolt, let alone an expansion of that time. The Respondent father takes the position that the visits between Kinga and Sarolt are going well but there is little evidence that that is the case. He takes the position that the CAS last met with the girls together a few weeks ago and if he had had access to the CAS notes, he is confident that they would show a positive visit. I will be ordering that disclosure and it may provide such evidence but it is not available to me. Furthermore, the court would benefit by the updated custody and access investigation contemplated by the report of the OCL.

[16] The situation with respect to Sarolt continues to be of great concern. In late November, 2015, the parties accepted the recommendation of the OCL and engaged Brayden to provide a therapeutic service to facilitate the re-integration of Sarolt and her mother. The parties agreed to an 8 week program, at the end of which they agreed to 2 more visits. I have read the notes of the first 8 events. At the outset, Sarolt’s reaction to her mother was profound rejection. By the end of the 8 weeks reflected in the notes in the motion record, small but significant progress had been made. At the conclusion of the 10 visits, subject to this motion by the Respondent father, the parties agreed that Brayden will continue to be involved on a weekly basis with the visits starting and ending at Brayden but will be in the community (for activities such as a movie) with a supervisor present at all times.

[17] The Respondent father is content that the weekly visits continue. However, he asks that paragraph 5 of the temporary order dated December 3, 2015 be varied to provide that APCO take over the supervisory function for these reasons. First, APCO costs $150 per year while Brayden costs over $200 per week which is a significant burden on the modest family resources. Second, the supervision services now being provided by Brayden are transferrable to APCO because it is no longer a therapeutic service. Third, as long as Brayden is being paid and with no deadline for terminating its service, the service provider is not motivated to assist in effecting significant progress.

[18] The Applicant mother agrees that the weekly visits continue as agreed but she is opposed to the change from Brayden to APCO.

[19] I do not agree that the arrangement with Brayden should be terminated. In his affidavit, the Respondent father deposed that “there is very little improvement so far”. However, that little improvement has been very compelling. Sarolt has come from being hysterical at the thought of being in her mother’s presence to appearing to be comfortable in her mother’s presence and having some engagement with her mother for short periods so long as accompanied. From that I infer that she has come to trust the professionals with whom she has been dealing at Brayden. I am not prepared to risk deterioration in the modest progress that has been made. I am not satisfied on this record that the level and nature of supervision that Brayden provides, and that Sarolt appears to need, can be provided by APCO.

[20] In paragraph 3 of her notice of motion, that Applicant mother asks that paragraph 14 of the consent order dated December 3, 2015 be varied to change the proportionate contribution to Brayden from 50/50 to proportionate to their incomes which would be 22% to 78% as contemplated by the paragraph 5 of the consent order dated October 6, 2015 with respect to sharing s.7 expenses. In support of that request, she has filed a form 13.1 financial statement along with various divorcemate calculations. The Respondent father takes the position that if Brayden continues to be involved, that it is imperative that the 50/50 allocation be maintained. He too has provided a form 13.1 financial statement.

[21] I agree with Ms. Ryan that when the December 3 order was made, the 50/50 sharing was “without prejudice to either party’s right to argue a different proportion” and hence the Applicant mother need not identify any material changes in her circumstances or his circumstances in order to obtain a variation. But I accept the Respondent father’s submission that the 50/50 continue. There is no question that these parents have modest means. Even without the cost incurred for Brayden, both are struggling and neither of them would be able to manage if the Applicant were not in receipt of subsidized housing and child care. But the intervention of Brayden is, at this point, so crucial and its effect is so potentially positive for the whole family, that notwithstanding the differences in their income, they ought to both be responsible for ½ of the cost. I also agree with the observation of the Respondent father that the Applicant mother needs to be sufficiently financially invested in this relatively expensive intervention that she is committed to it being as productive as possible as soon as possible. As the OCL observed, both parents must take responsibility for the circumstances of these children and in that respect, it includes financial responsibility for Brayden.

[22] I agree with the point made by the Respondent father that the order dated December 3 does not contain a termination clause and that it ought not to be permitted to go on indefinitely. I will address that issue below.

Other Issues

[23] As indicated above, the OCL agreed and I made a consent order that it would review progress with treatment in 6 months. If that is 6 months from the disclosure meeting on November 23, then I anticipate that OCL will become engaged shortly. I am concerned as to whether the recommendations of the OCL as incorporated into the December 3 order have been implemented. I note that the OCL recommendation as incorporated into paragraph 7 of the order was that Sarolt receive a psychiatric assessment at CAMH in January or February, 2016. That has not happened. In addition to the timing issue, there is also an indication in the record before me that what is needed is a psychological assessment that would address behavioural issues rather than a psychiatric assessment that would address mental health issues. The parties need help in navigating through the recommendations of the various service providers in arriving at diagnostic and treatment interventions that are appropriate.

[24] It is not clear the extent to which the parents should be individually involved in therapy and if so, for what purpose. The OCL report did not contain a specific recommendation to that effect but the excerpt quoted at paragraph 10 above suggests it and there are other comments throughout the material that reflect on such interventions.

[25] With the impetus of the OCL report and recommendations and the earlier involvement of the CAS, some or all of the members of this family are accessing a wide array of services. It is not clear to me that they are individually and collectively getting what is needed. It would be of assistance to the court if the OCL could immediately re-engage with the family for purposes of determining whether the recommendations (and the order of December 3) have been implemented and if not, what needs to be introduced on a priority basis as well as to assist the family in accessing such interventions.

[26] As indicated in paragraph 4 of her notice of motion, the Applicant mother asks that I make an order directing the parties to follow the recommendations of the service providers. I agree with the sentiment. However, I am not prepared to make an order which would in effect delegate decision-making to others. Based on the evidence of each of the parties, it seems that they are willing to follow the recommendations of CDI and CAMH and the Applicant mother is content to follow the recommendations of Brayden, but it would not be appropriate to make an order requiring implementation of recommendations that continue to evolve.

[27] As indicated above, the Respondent father has asked that the CAS provide further disclosure since the last production. Ms. Ryan indicated that her client had agreed to that request. Ms. Ryan and the Respondent father disagreed as to why that step had not been taken but I need not resolve that dispute. Suffice it to say that it should be done now and again before the next case conference.

[28] I did not deal with paragraph 4 of Mr. Pal’s motion because there was little detailed evidence before me and he had not included it in his factum.

[29] Before the hearing of the motion, Ms. Ryan provided to Mr. Pal an envelope containing all of the documents that she said her client had with respect to paragraph 5. Mr. Pal pointed out that the Hungarian identity card and Hungarian social insurance card were missing. Ms. Ryan confirmed that her client would arrange for those documents to be sent by the maternal grandmother in Hungary directly to Mr. Pal. Mr. Pal also took the position that while a computer had been given through Brayden, it was the wrong computer. Ms. Ryan disagreed. There was no evidence before me as to which computer was which and I did not deal with it.

[30] I have decided that since this family is still in transition, that the next step should be a case conference. After hearing submissions on the morning of the 19th, I had arranged with Ms. Ryan and Mr. Pal to return about 3:00 at which time I expected to provide this endorsement. Mr. Pal then received a message from the school that Sarolt was ill and had not been in class so he needed to pick her up and take her home. He could not return after the lunch recess. Ms. Ryan was still available and I indicated to her that I intended to hold a case conference. I confirmed that she was available on the date set out below. If Mr. Pal is unavailable, he should immediately contact Ms. Ryan and the Trial Co-ordinator about changing the date.

[31] In the Applicant mother’s notice of motion, she asked for costs. Mr. Pal did not ask for costs. Each party has achieved some success in this motion which is a relevant factor in the decision as to costs. I am optimistic that Ms. Ryan and Mr. Pal will have communications on the issue of costs and, failing agreement, each will make written submissions as indicated below.

Order

[32] Paragraph 1 of his motion and paragraph 1 of her motion are granted as follows:

Effective April 27, 2016, Mr. Pal shall pick up Kinga on every Wednesday at her childcare at 4:00 p.m. and drop her off at her childcare Thursday morning 7:10 a.m.

[33] Paragraphs 1(b), 2 and 3 of his motion are dismissed.

[34] Paragraphs 2, 3 and 4 of her motion are dismissed.

[35] Paragraph 5 and 15 of the order made December 3, 2015 shall continue unless varied by agreement by the parties provided that those paragraphs shall be reviewed at the case conference to be held on July 8, 2016 referred to below.

[36] The CAS shall produce to the parties copies of its file in the immediate future and again before June 30, 2016. If the CAS requires a specifically worded order, Ms. Ryan and Mr. Pal shall collaborate to forward a form 14B motion to my attention for that purpose before April 29, 2016.

[37] A representative of the Office of Children’s Lawyer (if available) and the parties shall attend for a case conference on July 8, 2016 at noon (before me if available) for purposes of considering the following:

(a) any follow up investigation and report by the OCL; (b) the status of the supervision at Brayden Supervision Services; (c) the status of other interventions appropriate to the members of this family; (d) whether the parties might agree to any consent orders with respect to Kinga and Sarolt; (e) alternatively, whether either party intends to bring a motion in that respect and if so, set a timetable.

[38] If the parties agree to cancel or adjourn that case conference, they shall in advance of that date consent to an order with respect to paragraphs 5 and 15 of the order dated December 3, 2015.

[39] Counsel for the Applicant mother may take out this order without approval as to form and content by the Respondent father.

[40] Ms. Ryan shall immediately forward a copy of this endorsement to the Office of Children’s Lawyer.

[41] If by April 29, 2016 the parties have not agreed as to costs of these motions, then each party shall make written submissions not exceeding 3 pages plus offer(s) to settle and costs outline on the following timetable:

(a) the Applicant mother by May 9, 2016; (b) the Respondent father by May 23, 2016.

Kiteley J. Date: April 20, 2016