Court File and Parties

COURT FILE NO.: FC-15-2028 DATE: 2016/06/07 SUPERIOR COURT OF JUSTICE, FAMILY COURT - ONTARIO

RE: Barbara Rosalia King, Applicant AND Durwin Matthew King, Respondent

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Russel A. Molot, for the applicant Timothy N. Sullivan, for the respondent Chantel Carvallo, for the child Victoria Alma King

HEARD: April 13, 2016

Endorsement

Overview

[1] With leave of the Court, the respondent father (“Durwin”) brings this motion on an urgent basis for relief with respect to access visits with his adoptive daughter. Victoria Alma King (born in January 2003 – “Victoria”) is the daughter of the applicant mother (“Barbara”). Durwin and Barbara married in August 2009. In the fall of 2009, Durwin adopted Victoria.

[2] Barbara and Durwin (“the Parties”) separated in October 2011. They did not enter into a formal, written separation agreement. Following the separation, the Parties dealt with custody and access on the basis of agreements reached between them from time to time. This informal arrangement worked relatively well for the first three years following separation. From the summer of 2014 to the present, there have been difficulties between the Parties and for Victoria in addressing the issue of access visits.

[3] These difficulties reached a critical level in the late summer of 2015 and have persisted since that time. Barbara’s application for divorce was issued and served in September 2015. The Parties attended a case conference in December 2015. By that time, Victoria had not had access visits with Durwin for a number of months.

[4] In her endorsement at the case conference, Master Champagne noted that, “[t]he mother agrees to arrange for the child to meet with her father, in her absence and in the absence of the father’s partner in order to allow the father to try to reconnect with his daughter without interference.” On consent, Master Champagne made an order, on a temporary and without prejudice basis, which includes the following terms related to access:

b. The Respondent shall have access to the child, in the absence of his partner, on December 24, 2015 from 1:30 p.m. until 3:00 p.m. at the Chapters at the Gloucester Centre. The Applicant shall drop the child off at Chapters and will return at 3:00 p.m. or later if the child asks to stay later.

c. The parties will encourage the child to see her father weekly thereafter.

[5] Included in Master Champagne’s order was the appointment of the Office of the Children’s Lawyer to represent Victoria in this matter.

[6] Master Champagne ordered that the parties attend a motion on March 29, 2016 on the issues of access and child support. Durwin brought the motion, which was before me on that date. As of that date, Ms. Carvallo of the Office of the Children’s Lawyer had not had an opportunity to complete her interview of Victoria. As a result, the motion was adjourned to April 13, 2016 on terms as follows:

1. The respondent father is to have access visits with the child on a weekly basis commencing this week and continuing pending further order of the Court.
2. The access visits are to take place in the community and be of two hours in duration.
3. The access visits may be longer than 2 hours in duration if the child requests that they last longer than 2 hours.
4. The respondent is to attend the access visits alone.
5. The parties shall refrain from discussing the litigation with the child.

[7] I heard argument on April 13 with all parties, including Victoria, represented on the motion.

The Positions of the Parties

[8] Durwin acknowledges that the issue of access visits is to be resolved on the basis of the best interests of Victoria. He also acknowledges that one of the factors the Court is to consider is the wishes of Victoria. It is, however, submitted on Durwin’s behalf that Victoria’s wishes are a “small consideration” in the determination of the motion.

[9] Durwin is said to be perplexed as to why access visits with Victoria came to a halt in September 2015. He expresses significant doubt that the cessation of access was, as submitted by Barbara, solely on the basis of Victoria’s wishes as expressed to her mother. Durwin is concerned that the decision to cease attending access visits: a) was not a decision that Victoria made on her own; and b) is a reflection of parental alienation.

[10] Barbara’s position is that there is no evidence to support a finding of alienating behaviour on her part. Victoria’s lack of desire to spend time with Durwin at his home is the result of the environment in that home; the dynamics of the relationship between Durwin, his new partner, and the new partner’s nine year-old daughter have a negative impact on Victoria.

[11] It is Barbara’s position that the wishes of this 13 year-old girl are to be given more than “small consideration” in determining the extent of the access visits the child has with her adoptive father. In summary, Barbara’s position is that Victoria should not be required to participate in access visits with Durwin if she has no interest in them.

The Issue

[12] The sole issue to be determined on this motion is the nature and extent of the access that Victoria is to have with Durwin on an interim basis, pending further order of the Court or an agreement between the Parties. Durwin seeks access on the following terms:

a) Every Tuesday and Wednesday from Tuesday after school to Thursday morning; b) Every other weekend from Friday after school to Monday morning; c) Two consecutive weeks during the summer school holiday; and d) Additional access as circumstances warrant.

[13] For the reasons set out below, I order that Victoria’s access visits with Durwin occur as follows:

1. Commencing the week of June 13, 2016, the respondent father is to have access visits with the child: a) On a weekly basis; b) In the community; c) Of two hours in duration; and d) Of longer than two hours in duration if the child requests that they last longer than two hours.

2. Commencing the week of July 18, 2016, the respondent father is to have access visits with the child: a) On a twice weekly basis; b) In the community; c) Of two hours in duration on each visit; and d) Of longer than two hours in duration for any visit if the child requests that the visit lasts longer than two hours.

3. Access may increase subsequent to the week of July 18, 2016 on agreement as between the Parties.

4. Either of the Parties may, after September 16, 2016 return to the Court for review of the schedule of access visits.

5. Paragraphs 4 and 5 of my endorsement dated April 13, 2016 remain in effect.

Analysis

a) The Divorce Act and Children’s Law Reform Act

[14] The motion for interim relief with respect to access is brought in the context of an application for divorce. Sections 16(2), (8), and (10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), govern motions of this kind. Section 16(8) of the Divorce Act mandates that the Court take into consideration “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.”

[15] Section 16(10) of the Divorce Act provides:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[16] Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 provides guidance as to what is meant by “needs and circumstances”, delineating the following factors:

a) the love, affection and emotional ties between the child and … each person claiming access to the child; b) the child’s views and preferences, if they can reasonably be ascertained; c) the length of time the child has lived in a stable home environment; g) the ability of each person applying for access to the child to act as a parent; and h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. Note: Lettering is as section 24(2) of the Children’s Law Reform Act.

b) The Evidence

[17] The evidence on the motion is in the form of three affidavits – two sworn by Durwin and one sworn by Barbara. There was no cross-examination on the affidavits.

[18] Counsel appointed to represent Victoria informed the Court as to the outcome of her interviews with Victoria. As of the date of the interim motion, Victoria’s counsel had not retained a social worker to interview Victoria and prepare and file an affidavit setting out Victoria’s wishes as expressed by her to the social worker. Therefore, the only method by which it may be possible to ascertain Victoria’s wishes is on the basis of the affidavit evidence of the Parties.

[19] It is not possible on this interim motion, in particular in the absence of cross-examination on the affidavits of the Parties, to make findings of credibility or to make findings of fact preferring the evidence of one of the Parties to the other on contentious matters. There are, however, certain undisputed facts relevant to the issue of access. Those facts are:

• Victoria was three years of age in 2006 when the Parties began dating and six years of age when the Parties married in August 2009. • Victoria was six years old when she was adopted by Durwin. • In October 2011, when the Parties separated, Victoria was almost nine years old. • From October 2011 to August 2014, the informal agreement in place was that Victoria resided with her mother. In those years, Victoria was eight (almost nine) to 11.5 years old. Access visits with Durwin occurred on an alternating week basis as follows: ➢ Wednesday after school to Friday morning one week; and ➢ Tuesday after school to Thursday morning and Friday after school to Monday morning the following week. • In August 2014, the access schedule was changed to every second weekend from Friday after school to Monday morning and every Wednesday after school until Thursday morning. • On August 26, 2015 Durwin received an e-mail message from Victoria in which she said: I wanted to talk to you about this weekend. I feel like I need to take a break from going to your house for now. I will be staying here at mom’s for this and next weekend. When I am ready to come back, I’d like to continue every other weekend only. I will let you know when I am ready to come back. • Two days later – on August 28, 2015 – Victoria sent Durwin an e-mail in which she said as follows: … I can only hope that you respect my decision that I want to continue every other weekend like we have done for the last year. I know I used to go on Wednesday but I have school and I’ve got high school and 2 hours of homework and you send me to bed early and I don’t sleep and I’m stupid tired on Thursday mornings. I just can’t handle it anymore. I’m sorry. And please email me from now on cause I don’t always have my phone. • On September 10, 2015, Durwin received an e-mail message from Victoria in which she said, “Durwin I got your text, and I don’t want to go to your house anymore. I need you to know that this is 100 % my decision. And please, e-mail me.” • Barbara’s application for divorce was issued on September 16, 2015 and served on Durwin on September 19, 2015. In the application, Barbara “states that access to the Respondent should be suspended until such time as [various allegations relating to the environment in Durwin’s home] can be properly and completely investigated.” • Victoria did not have any access visits with Durwin from September 2015 until December 24, 2015 – the latter date being the date for access ordered by Master Champagne. • Access visits resumed as of December 24, 2015 and continued until February 6, 2016. • As of March 29, 2016 (the first return date for the motion), Durwin had not had any access visits with Victoria since February 6, 2016.

i) The New Relationships

[20] Each of the Parties has, since the date of separation, entered into a new relationship. Durwin and Barbara are each residing with their respective new partner. In my view it is the transition to the new relationships which is at the heart of the difficulties that have arisen with respect to the access visits for Victoria with her adoptive father. Victoria’s place in the family dynamics has not been fully considered by either of the Parties as they have each ‘moved on’.

[21] Barbara points to Durwin’s new partner and children as contributing significantly to Victoria’s increasing lack of interest in attending access visits with Durwin – in particular in the home that he shares with his new family. Much of Barbara’s evidence and the substance of the application for divorce relate to allegations of Durwin appearing to favour his new partner and her children over Victoria at all times and restrictions on behaviour, which are said to border on “abuse”, in the home which Durwin shares with his new family.

[22] Durwin’s evidence puts a different ‘spin’ on the home which he shares with his new family. Durwin downplays any potential negative impact on Victoria arising from his relationships with his new partner and her two children.

[23] Durwin points to Barbara’s involvement with Al-Ameen Sarkar (“Mr. Sarkar”) as central to his concerns with respect to Victoria’s safety and well-being and the dysfunction in the family dynamics. Barbara and Victoria lived with Mr. Sarkar from October 2011 (the month in which the Parties separated) until October 19, 2013. In her affidavit, Barbara acknowledges that she was the victim of a domestic assault on that date.

[24] In summary, Barbara’s evidence with respect to the domestic assault and the fallout from it is as follows:

• Victoria was at home when Barbara and Mr. Sarkar engaged in an argument, with each adult striking the other. • The police were called to the home. Mr. Sarkar was removed from the home, the Children’s Aid Society (“the CAS”) was called, and an investigation file was opened by the CAS. • Three charges were laid against Mr. Sarkar, two of which were dropped. Mr. Sarkar entered a plea of guilty in March 2014 to one count of assault. In May 2014 he was sentenced to 15 months’ probation. • A restraining order was put into effect. Mr. Sarkar was prohibited from contacting Barbara (until March 2014, following a plea of guilty) and Victoria (until May 2014, following the sentencing hearing).

[25] A file closure letter from the CAS addressed to Barbara is included as an exhibit to her affidavit. The CAS did not identify any child protection concerns during its investigation following the domestic assault. In the letter, the CAS recommended that Barbara review the safety plan with Victoria on occasion. It also recommended that Barbara seek the appointment of the Office of the Children’s Lawyer for Victoria in the context of Barbara’s application for divorce in which she is requesting sole custody of Victoria. As noted above, at the case conference conducted in December 2015, Master Champagne provided for the appointment of the Office of the Children’s Lawyer to represent Victoria.

[26] In my view, each of the Parties has failed to be sufficiently mindful of the difficulties Victoria has faced from age eight to age 13. Those difficulties include the following:

a) Being witness to the breakdown of the family unit in which she lived for a two-year period; b) Observing her adoptive father become involved with a new family; c) Questioning her place in her adoptive father’s life given that his new family includes two children; c) Being at home at age 10 when her mother was the victim of a domestic assault at the hands of Mr. Sarkar; d) Being prevented from any contact with Mr. Sarkar from October 2013 until May 2014; and e) Having her mother decide to resume living with Mr. Sarkar as of the summer of 2015.

ii) The Obligations of the Parents

[27] Barbara admits that in the summer of 2015 when she and Victoria began to live with Mr. Sarkar again she did not tell Durwin who they were living with. In Barbara’s words, “Frankly I didn’t think it was any of his business who I was with.” On the basis of that evidence, I find that Barbara has little appreciation for the significance of Durwin’s role as Victoria’s adoptive father and his understandable level of interest in Victoria’s well-being and safety.

[28] With whom Barbara lives would likely not be of any concern to or the business of Durwin if the decisions that Barbara made in that regard had no impact on Victoria. However, at this stage of Victoria’s life, such decisions have an impact on Victoria. In my view, it is unreasonable on Barbara’s part not to inform Durwin as to where the two of them are living and with whom.

[29] Durwin admits that Barbara’s decision to return to live with Mr. Sarkar and the failure on Barbara’s part to inform Durwin of same became a point of contention for him. I find that it was entirely reasonable for Durwin to be concerned that Victoria was once again living with someone whom she knows assaulted her mother.

[30] The Parties differ in their respective descriptions as to Durwin’s level of upset and behaviour, including his dealings with Victoria, upon learning that Barbara and Victoria had resumed living with Mr. Sarkar in the summer of 2015. It is not possible, on the basis of the affidavit evidence, to make findings of fact as to how Durwin’s upset manifested itself in August 2015.

[31] Barbara’s affidavit evidence, the allegations in the application for divorce, and the submissions made on behalf of Victoria point to Durwin having challenges with integrating his new family into his pre-existing relationship with Victoria, with parenting generally, and with anger management. The issues with anger management are addressed in a letter from the CAS sent to Durwin and his new partner in September 2015. The CAS had completed its investigation into protection concerns arising from Durwin frightening Victoria and his new partner’s daughter by raising his voice to, if not yelling at, both girls.

[32] Certain aspects of Barbara’s evidence are troubling in as much as they demonstrate her lack of appreciation for her role as a parent to encourage Victoria to maintain a relationship with her adoptive father. In an e-mail sent to Durwin on February 6, 2016, Barbara said, “At this point, Al and I can no longer support encouraging these visits, Victoria has asked that she speak to her OCL lawyer, and there will be [no] more visits until her lawyer is appointed and she has an opportunity to meet with him/her.” In his affidavit, Durwin questions the involvement of Mr. Sarkar in Barbara’s parenting decisions with respect to Victoria.

[33] Barbara’s lack of support for Victoria continuing with the court-ordered access visits as of early 2016 is evident from her response to an e-mail from Durwin in late February 2016. At that time he inquired, for a second time, as to a potential weekend visit with Victoria. Barbara’s response by e-mail was: “Victoria has chosen not to have a visit.”

[34] In my view, both Durwin and Barbara would benefit from professional assistance or guidance in dealing with the evolving family dynamics with which they are each faced.

iii) Victoria

[35] Counsel for Victoria said that the child is surprised by her adoptive father’s level of interest in maintaining a relationship with her, as she did not feel particularly close to him.

[36] Counsel on behalf of Victoria informed the Court that the child is clear and consistent in her desire not to have access visits with her adoptive father in the home which he shares with his new family. In particular, Victoria has expressed that she does not wish to have overnight visits in Durwin’s home. Victoria is said to find the back and forth between her home and Durwin’s home to be disruptive.

[37] The submissions on behalf of Victoria were more ‘evidence’ than they were submissions. There is, however, no evidence properly before the Court on Victoria’s behalf.

[38] The only evidence of any kind that appears to be directly from Victoria is in the form of e-mails she sent to Durwin in August and September 2015. Durwin questions whether all of the e-mails are in fact from Victoria.

[39] I find that the e-mail sent on August 28, 2015 was typed and sent by Victoria. That e-mail is in the language of a teenager and appears to be genuine in terms of the sentiments expressed with respect to Victoria’s management of her time and the demands she was experiencing with high school homework.

[40] There is no evidence to explain what happened between August 28, when Victoria said she was willing to continue access visits with Durwin every other weekend, and September 11 when an e-mail was sent to Durwin in which it appears that Victoria said that she wanted to take a break from any access visits. It is submitted on Durwin’s behalf that the September 11 message was typed and sent by Barbara. Durwin points to the use of his first name in the e-mail – the first time he ever received an e-mail from Victoria in which he is addressed by his first name. I am left with some doubt as to whether that e-mail was from Victoria or was sent on her behalf.

[41] I find that in late August, Victoria vacillated as to whether or not she wanted to continue to participate in access visits with Durwin at his home every second weekend. I find that there is no evidence as to her wishes from that point forward. In summary, it is not possible, based on the evidence before me to reasonably ascertain Victoria’s wishes.

[42] I am mindful of the August 28, 2016 e-mail from Victoria to Durwin in which she cited the demands of high school and time management as one of her reasons for wanting to revert to seeing her father every second weekend. It is possible that like the Parties, Victoria would benefit from counselling to assist her in managing the evolution of the family dynamics with which she is faced as she progresses into her teenage years. However, absent evidence from or on behalf of Victoria, I am of the view that it would be inappropriate for me to order that she participate in counselling – re-unification counselling for example – at this time.

[43] Whether or not Victoria requires counselling to assist her as she gradually resumes access visits is matter which may be brought before the Court over the next several months and at the instance of either of the Parties.

The Case Law

[44] In support of his position, Durwin relies on the decision of this Court in Stuyt v. Stuyt, 2009 ONSC 43948 and of the Ontario Court of Appeal in Godard v. Godard, 2015 ONCA 568. Both decisions are with respect to motions for findings of contempt and address the obligations of a parent in dealing with a child who is resisting contact with the access parent.

[45] The child in Godard was of a similar age to Victoria and was refusing for undetermined reasons to attend access visits even in the face of a Court order providing for such visits. At first instance, the appellant mother was found in contempt of the Court order which provided for access. The mother’s primary argument on appeal was that once the motion judge found that the child did not want to see her father and that the mother was making “some efforts” to encourage the child to see her father, it was inconsistent to then find that the mother was deliberately and wilfully disobeying the existing court order. The mother’s argument failed and her appeal was dismissed.

[46] There are striking similarities between the facts in Godard and those in the matter before me. For example, with respect to one access visit the mother in Godard sent an e-mail to the father stating, “I spoke with [the child] and she would prefer to stay here this weekend.” That e-mail is very similar to the e-mail sent by Barbara to Durwin in early February 2016.

[47] In another e-mail the mother in Godard said, “[The child] is getting older and is more than capable of deciding when she would like to go to your house to visit.” That e-mail is similar to the e-mail sent by Barbara to Durwin in late February 2016.

[48] The e-mails from the mother in Godard contributed to the Court of Appeal agreeing with the conclusion of the motion judge that the mother essentially left the decision concerning compliance with the access order up to the child. The Court of Appeal emphasized the following:

• A parent has some positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order (at para. 28). • It is recognized that as children grow older it may become more difficult to comply with an access order. However, the custodial parent is “required to do all that they reasonably can” to ensure compliance (at para. 29). • The custodial parent is required to “take concrete measures to apply normal parental authority to have the child comply with the access order.” More than mere encouragement is required (paras. 29 and 30).

[49] In the words of Justice Aitken at paragraph 55 of Stuyt, and substituting the names of the Parties and Victoria for the names of the individuals involved in that case:

Barbara cannot hide behind Victoria’s wishes as a reason not to comply with the order of Corthorn J. Whether Barbara or Victoria agrees or disagrees with that order both must comply with it. It is the responsibility of Barbara to show that she is the adult, she is the parent, and she will take appropriate steps to make sure that the access schedule in the order is complied with.

[50] A number of the cases relied on by Barbara are of minimal assistance in determining the issue of interim access. Barbara relies on cases related to a motion to move children from one city to another (Boone v. Boone, 2014 NSSC 227); the return of a wrongfully retained child and ‘The Hague Convention’ (M.L.E. v. J.C.E., 2005 ONCJ 89, [2005] O.J. No. 1100 (C.J.)); and a decision following a 22-day trial in which there were allegations of parental alienation (Ciarlariello v. Iuele-Ciarlariello, 2014 ONSC 5097 [Ciarlariello]).

[51] That said, the following passage from Ciarlariello, at paragraph 169, is helpful to emphasize the role which each of Durwin, Barbara, and Victoria have to play in resolving their family conflict:

Each parent and each child’s actions are integral to ending this family conflict. With increasing age, the children’s views carry added weight. However, in our society, with increasing rights come added responsibilities. Their father has listened to the criticisms of his parenting and taken courses to address those issues. He has spent more than two years working towards renewing his relationship with his boys. Without exception, each independent person in this case who has met the father has been impressed with his parenting abilities and his commitment to ALL of his children. He is most understanding of the positions of the two older boys. The children should be expected to give their father a chance.

Parental Alienation

[52] It is submitted on behalf of Durwin that Barbara has embarked on a course of parental alienation and that Victoria is demonstrating behaviours of an alienated child. It is not possible in the context of this interim motion to make a determination as to whether Barbara has embarked on a course of such conduct and/or whether Victoria is demonstrating such behaviours.

[53] In support of his submission on this subject, Durwin relies on the decision of Mackinnon J. in Fielding v. Fielding, 2013 ONSC 5102, 39 R.F.L. (7th) 59 [Fielding]. Specifically, it is submitted that in her decision Justice Mackinnon, “identified the strategies of an alienating parent, behaviours of an alienated child and the markers that alienation has occurred.” That is not, in fact, the substance of Justice Mackinnon’s decision.

[54] In Fielding, Justice Mackinnon discussed the evidence of Dr. Amy Baker, an expert witness who was qualified to provide opinion evidence on theory and research pertaining to parental alienation. In support of her testimony, Dr. Baker relied on a generic report she prepared on the subject and to which reference had previously been made in 15 to 20 cases.

[55] Justice Mackinnon was careful to point out that Dr. Baker: a) had not met with either parent or any of the children involved in Fielding; and b) did not provide any opinion evidence that was specific to the case. Justice Mackinnon reviewed the contents of Dr. Baker’s generic report including the identification of 17 alienating strategies utilized by one parent against another and eight behaviours observed in alienated children.

[56] After considering the evidence of Dr. Baker, Justice Mackinnon cautioned against applying generic lists to a specific case, in particular without the benefit of an individualized assessment. At paragraph 150 of her decision, Justice Mackinnon said:

The applicant hoped to use the generic report as a platform from which to argue her case and to challenge Dr. Sutton’s opinion. In my view, the approach taken in the generic report was overly simplistic and did not account for the complexity of the Fielding case. This generic research report could not replace an in-depth clinical assessment of the actual individuals in the family. Ultimately, if anything, the generic report reinforced Dr. Sutton’s opinion that this is a very complicated, “mixed” case with many factors arising before and after separation contributing to the overall dysfunction and relationship issues.

[57] Justice Mackinnon’s decision followed a 15-day trial. It would be inappropriate for me, at this stage of the matter and in the vacuum of evidence that exists on the issue of parental alienation, to make any findings with respect to the allegation by Durwin that Barbara is engaging in alienating behaviour. Those allegations are not a factor in my decision on this interim motion.

Conclusions

[58] The matter before me differs from any of the cases relied on by the Parties in that Durwin is Victoria’s adoptive, not biological, father and they resided together for only two years prior to the date of separation. In that two-year period, Victoria was ages eight through ten.

[59] It would not, in the circumstances, be surprising that Victoria does not feel as close to Durwin as a child of a similar age might be to a biological parent with whom she had resided for her entire life until the date of separation. The relatively brief period of time during which Victoria lived with her mother and Durwin as a family is relevant to the nature and extent of the access visits.

[60] Based on the evidence before me, I find as follows:

• As of August 28, 2015 Victoria was prepared to give Durwin a chance inasmuch as she was prepared to resume visiting with him every other weekend. • Victoria’s August 28, 2015 e-mail was sent subsequent to the disruption in the lives of the Parties and Victoria’s life which followed Durwin learning that Victoria and Barbara had resumed living with Mr. Sarkar. • There is no evidence from or on behalf of Victoria to explain why since September 11, 2015 she was no longer willing to participate in access visits with Durwin. • Since the late summer of 2015 and into 2016, Barbara has not been encouraging Victoria to continue to attend access visits with Durwin, as Barbara is required to do on the basis of the case law and pursuant to the December 2015 order of Master Champagne made on the consent of the Parties.

[61] There is nothing in the evidence before me to support a finding that Victoria should not be encouraged to give Durwin a chance. As was noted by Mackinnon J. at para. 170 of her decision in Fielding, “Despite [her] teenage years and points of view, the court has a duty to also consider [her] longer term interests in achieving [a] viable relationship[] with both parents …”.

[62] It has been a number of months since Victoria has participated in an access visit with Durwin. Given the passage of time, the resumption of access visits should take place gradually. In addition, unless the Parties agree as to how access is to continue, there needs to be the opportunity for a review in several months of the schedule for and terms of the access visits.

[63] I am of the view that, like the parents in Fielding, both Durwin and Barbara would benefit from professional assistance to address their respective issues and/or to assist Victoria in developing a positive relationship with each of her parents. They may well have greater success in doing so if they each undertake courses and/or programs on a voluntary basis.

[64] In summary, I order as follows:

1. Commencing the week of June 13, 2016, the respondent father is to have access visits with the child: a) On a weekly basis; b) In the community; c) Of two hours in duration; and d) Of longer than two hours in duration if the child requests that they last longer than two hours.

2. Commencing the week of July 18, 2016, the respondent father is to have access visits with the child: a) On a twice weekly basis; b) In the community; c) Of two hours in duration; and d) Of longer than two hours in duration if the child requests that they last longer than two hours.

3. Access may increase subsequent to the week of July 18, 2016 on agreement as between the Parties.

4. Either of the Parties may, after September 16, 2016 return to the Court for review of the schedule for and terms of the access visits.

5. Either of the Parties may, at any time, return to the Court for a review of the professional services that may be of benefit to the child in dealing with access visits with the respondent father.

6. Paragraphs 4 and 5 of my endorsement dated April 13, 2016 remain in effect.

Costs

[65] In the event the parties are unable to agree upon costs of the matters argued before me, they may make written submissions as follows:

a) The submissions shall be limited to a maximum of three pages, exclusive of a bill of costs; b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; c) Hard copies of any case law or other authorities relied on shall be provided with the submissions; d) The written submissions and authorities shall be single-sided pages; e) The respondent father shall deliver his submissions by 5:00 p.m. on the tenth business day following the date on which this endorsement is released; f) The applicant mother shall deliver her submissions by 5:00 p.m. on the 20th business day following the date on which this endorsement is released; and g) The respondent father may deliver a reply, not exceeding two pages and in accordance with paragraphs (a) to (d) above, by 5:00 p.m. on the 25th business day following the date on which this endorsement is released.

Madam Justice Sylvia Corthorn Date: June 7, 2016