Court File and Parties
COURT FILE NO.: FS-14-19405 and FS-14-19405-0001 DATE: 20160614 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.S., Applicant AND: K.L.H., Respondent
BEFORE: Kiteley J.
COUNSEL: Andrew Sudano, for the Applicant Lyna Perelman, for the Respondent
HEARD: June 9, 2016
Endorsement on Motion and Cross-Motion
[1] The parties have two children, L.J.S. born […], 2003 (12.5 years old) and O.S. born […], 2005 (11 years old). This is a motion by the Respondent mother to change the status quo on a temporary basis and a motion by the Applicant father for a referral to the OCL.
Background
[2] The parties do not agree whether they began living together in 2000 (Applicant) or 2001 (Respondent). They agree they separated in August 2013 but they do not agree as to the reasons for the separation. They have a fundamental disagreement as to the best interests of the children, and hence these motions.
[3] Having heard submissions on Thursday June 9, 2016, I reserved to give me an opportunity to review again the significant record that had been filed.
[4] Proceedings were commenced in the Ontario Court of Justice and in August and September 2013 the parents signed temporary agreements. Although they are not available to me, it appears from the OCL report dated March 4, 2015 that four orders/endorsements were made in the OCJ between September 9, 2013 and August 30, 2014. It appears that as a result of steps in the OCJ each parent has had the children 50% of the time and the children continued to attend school near where the Applicant resides which is their former family residence owned by the mother of the Applicant.
[5] The Applicant commenced the application FS-14-19405 on April 30, 2014. On May 6, 2014 Stevenson J. granted an ex parte order permitting the registration of Certificates of Pending Litigation which order was modified on consent on May 22, 2014 and again on August 28, 2015.
[6] The parties attended a case conference on August 20, 2014 at which time Paisley J. permitted questioning, referred the matter to the OCL as requested and authorized motions to be brought. He also made a referral to mediation and suggested that a settlement conference be held after disclosure and motions were completed.
[7] The parties brought motions returnable before Pollak J. on September 15, 2015 at which time she made an order on consent for a s. 30 assessment to be conducted by Ilana Tamari; that the Respondent pay the costs of the assessment subject to possible reapportionment at a later date or at trial; that dealt with proceeds of sale of properties; and that specified the location of pick up and drop off of the children.
[8] On March 3, 2016 on the occasion of the disclosure meeting with Ms. Tamari, the parties received her recommendations and parenting plan and signed final Minutes of Settlement in which they agreed to the following: they would share joint custody; parents would endeavor to make decisions together and if there was an impasse or disagreement they appointed Ms. Tamari as the Parenting Coordinator/arbitrator and signed an agreement with Ms. Tamari; commencing September 2016, the parents would share parenting pursuant to a 2-2-5 schedule; in the meantime, the schedule would continue as Sunday to Wednesday with the Applicant and Thursday to Sunday with the Respondent; changed the pick up and drop off arrangements; agreed that O.S. would remain at her school until the end of Grade 6; agreed to “endeavour to agree on a school for L.J.S. for the 2016/2017 year and if unable to agree then they would bring it to the attention of the PC who would “attempt to mediate/arbitrate”; agreed to address L.J.S.’ school issue “no later than June 2016”; detailed the arrangements for the summer including an expectation that the children would attend day camp to be agreed upon by January of each calendar year; and provided that each parent would have the option of taking two non-consecutive weeks holidays that would not interfere with day camp provided that by May 1st in even years the Applicant would choose his two non-consecutive weeks; mother’s day weekend with mother; father’s day weekend with father; parents would agree on extra curricular activities. The agreement included 9 paragraphs with respect to parental conduct.
[9] The following events have occurred since March 3, 2016. On April 2, 2016, the Applicant father was charged with two counts of sexual assault and one count of assault involving the Respondent. His recognizance of bail provided that he was prohibited from communicating directly or indirectly with the Respondent or being within 100 metres of her work or residence and that access to the children would be arranged through a mutually agreed upon third party.
[10] On or about May 4, 2016, counsel for the Respondent served a motion in FS-14-19405 returnable May 10, 2016 along with the affidavit of the Respondent sworn May 3, 2016. In that affidavit, she referred to and relied on her affidavits sworn September 3 and 14, 2015 filed in connection with the earlier motions. The Respondent asked for an order that the motion be heard prior to the filing of a Motion to Change, if deemed necessary, on the basis of urgency; an order for sole custody; an order that the Applicant have supervised access to the children; in the alternative, an order for temporary suspension of the Applicant’s access; an order that the Applicant comply with the Minutes of Settlement dated March 3, 2016; an order that the Applicant pay Ms. Tamari’s fees to act as a parenting co-ordinator and arbitrator; an order striking the Applicant’s pleadings if he failed to forthwith comply with the Minutes of Settlement; and an order that the Applicant pay his 50% share of the s. 30 assessment, namely $8,997.63.
[11] On May 9, 2016, Justice Janet Wilson signed the final order which incorporated the terms of the Minutes of Settlement.
[12] It appears that the motion returnable May 10 was adjourned to May 17.
[13] On or about May 10, 2016, counsel for the Applicant served a motion (in FS-14-19405) returnable May 17, 2016 in which he asked for an order for referral to the OCL for an order pursuant to s. 89(3.1) of the Courts of Justice Act. His affidavit sworn May 6, 2016 was served in opposition to the Respondent’s motion and in support of his motion.
[14] Counsel for the Respondent filed an affidavit of his law clerk sworn May 16, 2016, that said that on May 13, 2016, they had received a copy of the entered order dated May 9, 2016 and that the urgent motion returnable May 10, 2016 “was brought without prejudice [to] bringing the Motion to Change seeking the same relief because the order did not exist at the time the Urgent Motion was prepared.” From that evidence, I infer that it was counsel for the Respondent who caused the May 9 order to be signed and entered; on that date a final order was in place.
[15] On May 17, 2016, counsel for the Respondent issued a Motion to Change final order and Backhouse J. made an endorsement that the Respondent would file the Motion to Change final order; the parties would attend with the DRO on May 24; and the motion was adjourned to May 31, 2016.
[16] In the Motion to Change, the Respondent mother asks for sole custody as well as for an order to have decision-making authority including schooling/education, health care, extracurricular activities and day to day decisions; and an order that the Applicant have supervised access until he completes an anger management program and a parenting program.
[17] The Motion to Change, Change Information Form and Affidavit of the law clerk sworn May 16, 2016 were served on May 19, 2016.
[18] The DRO made an endorsement on May 24 that the case conference had been held.
[19] The Form 15B Response to Motion to Change was issued and served May 25 along with the Form 35.
[20] On May 26, 2016 the Respondent amended her Notice of Motion (in FS-14-19405) by indicating that the orders she sought for sole custody, supervised access by the Applicant, or suspension of access by the Applicant were all temporary orders.
[21] On May 31, 2016 Hood J. made an order (ostensibly in FS-14-19405) in accordance with the consent filed by which the motions were adjourned to June 9 on terms including that the Respondent mother would file her affidavit sworn May 30 and the affidavit of Ilana Tamari sworn May 30 and the Applicant could serve and file reply affidavit by June 3. The endorsement indicated that the Respondent could file reply material by June 7. The order also directed on consent that the CAS of Toronto release any and all records with respect to the children.
[22] The Applicant’s June 2, 2016 affidavit (in FS-14-19405-0001) was served by courier on June 2, 2016.
[23] On June 7, 2016, the Respondent’s affidavit (in FS-14-19405) sworn June 6, 2016 was served. On June 3, 2016, the CAS had disclosed more than 650 pages of typed records regarding the family and the Respondent attached a few of those pages to her affidavit.
[24] On the morning of the motion, counsel for the Applicant served his client’s affidavit (in FS-14-19405) sworn June 9, 2016 which responded to her June 6 affidavit and attached to which were a few more of the pages from the CAS records. Initially counsel made submissions as to whether I should receive the June 9th affidavit and if so, whether an adjournment would be required. In the end, I reviewed the affidavit during a recess and then heard the motions.
[25] At the outset, I indicated that since the motions were on the regular list, submissions by counsel would be time limited. I indicated that I would not make an order for referral to the OCL since there had been such an order in 2014 and in the meantime, a s.30 assessment had been conducted. I also indicated that since the motions were on the regular list and therefore time limited, I would not hear the submissions on the relief other than parenting orders sought by the Respondent such as the request that the Applicant pay 50% of the s. 30 assessment costs and that his pleadings be struck out.
Positions taken by the parties
[26] The position taken by the Respondent is that since March 3, 2016 the following material changes in circumstances took place. First, on April 2, 2016, the Applicant was charged with two counts of sexual assault and one charge of assault all involving the Respondent. He admitted the sexual assault to Ilana Tamari. Second, the applicant continued to alienate the children from her and the children have been seriously damaged as a result. The Applicant is uncontrollable. Third, the Applicant has gone rogue. He refuses to adhere to the terms of the Minutes of Settlement. He refuses to follow any of Ilana Tamari’s instructions. He has repudiated the agreement with Ilana Tamari by advising her that he will no longer take part in the process and by providing her with NSF cheques for her services, showing his continuous disregard of the agreement and his belief that he is above the law. Fourth, Ilana Tamari now recommends sole custody to the Respondent and has confirmed that as an arbitrator she does not have jurisdiction to make changes to custody or to order supervised access or suspension of access. The Respondent asserts that sole custody should be given to her on an interim basis and access should be supervised or temporarily suspended to reverse the disruptive effects of the Applicant’s alienation of the children against her. The children require therapy to repair the damage of the alienation and Ilana Tamari agrees.
[27] The position taken by the Applicant is that the Respondent’s motion should be dismissed because there have been no material changes in circumstances; the parties should continue to have joint custody of the children as per the Minutes of Settlement dated March 3, 2016; the criminal allegations do not constitute a material change in circumstances; and the parties should continue to use Ilana Tamari as their parenting co-ordinator.
Analysis
[28] A decision is required as quickly as possible. For that reason, I will not take the time to include in this endorsement a summary of the many conflicts in the evidence between the parents. The following are the conclusions I draw from the extensive record.
[29] The extent of the conflict between the parents is pervasive and detailed and rebutted with considerable detail in the proliferation of affidavits, some of which is reinforced by emails and other evidence. The record contains significant contradictory evidence. It is not possible on this record for me to make findings of credibility nor is it in the best interests of the children that I make such findings at this preliminary stage in what is clearly a high conflict situation.
[30] Both counsel made submissions as to whether the onus is on the Respondent to establish that there has been a material change in circumstances since the final order was signed on May 9, 2016. After the Minutes of Settlement were signed March 3, 2016, neither party took the initiative to have the order signed until the Respondent initiated her motion in early May. It appears that the order was signed without informing Wilson J. that there was already a motion before the court to challenge continuation of the regime established by the Minutes of Settlement. Had that information been provided, she may have declined to sign the final order.
[31] It is the case that at the time of the attendance before Backhouse J. the final order had been signed. As indicated above, the materials were filed primarily in FS-14-19405 and, other than the Motion to Change and Response to Motion to Change, few were filed in FS-14-19405-0001. The relief sought in both proceedings was the same. There are outstanding child and spousal support and property issues in FS-14-19405 and it would be an administrative challenge for the lawyers and the court to distinguish between steps taken in the main action and in the motion to change. I will consolidate them as indicated below and I will convert the final order into a temporary order and treat the motion brought by the Respondent as seeking a variation of that temporary order.
[32] Pursuant to s. 29 of the Children’s Law Reform Act, before varying a temporary or a final order, the court is required to find that there has been a material change in circumstances that affects or is likely to affect the best interests of the child. No matter how strong the Respondent believes the evidence is, the Applicant is entitled to be presumed innocent of those charges. I do not agree that the criminal charges constitute a material change in circumstances. I do find that the recognizance of bail that prohibits the Applicant from having direct or indirect communication with the Respondent constitutes a material change in circumstances in this case where the parents have agreed to share joint custody and communication is fundamental to its implementation. Having found a material change in circumstances does not mean that it is in the best interests of the children that I vary the May 9 order.
[33] The parties have presented evidence that suggests that most avenues for intervention have been exhausted. The CAS has been involved with the family at least since late 2014. The 650 pages of notes, only a few of which were before me, will catalogue the extent of involvement. It appears that the CAS has been concerned about the extent to which the children have been put into the middle of the parental conflict but those concerns have not resulted in an apprehension application. Based on what has been provided, the CAS may close its file again.
[34] On August 20, 2014 Paisley J. made a referral to the Office of Children’s Lawyer. The OCL consented to provide services pursuant to s. 112 of the Courts of Justice Act. On October 22, 2014, the matter was assigned to Masters of Social Work Candidate and Clinical Investigator VA and she delivered a “Discontinued (Collapsed) Report of the Children’s Lawyer” dated March 4, 2015. VA indicated that the clinical investigation was close to completion but was discontinued because the Respondent refused to provide consent to the disclosure of collateral information. The report indicates that “the office of the Children’s Lawyer would consider completing the investigation by way of a fresh order of the Court”. According to the Respondent, she declined to consent to disclosure of historical personal therapeutic records. VA had observation visits with the children and each parent and separate interviews with the children at school. The report identifies a number of issues relevant to parenting capacity.
[35] As indicated above, a consent order was made on September 15, 2015 for a s. 30 assessment. It was expected that it would be completed in 3 months but it took 6 weeks to sign the assessment agreement and then it took 4 more months before the disclosure meeting took place that led to the Minutes of Settlement on March 3. Ms. Tamari had prepared her recommendations but she has not started on the written report that she says would take considerable time and would require a significant retainer (in addition to the approximate $19,000 paid to date). As part of the s. 30 assessment, Ms. Tamari engaged with the children.
[36] In his motion, the Applicant asks for an order that the OCL appoint counsel to represent the children pursuant to s. 89(3.1) of the Courts of Justice Act. I am reluctant to make a second referral order given that there is an investigation that VA decided should be terminated.
[37] The children are 12.5 years old and 11 years old. They are of an age that the court must consider whether and how their views should be ascertained. Professor Rachel Birnbaum and the Office of Children’s Lawyer along with the Association of Family and Conciliation Courts – Ontario section are collaborating to conduct research into what are referred to as “voice of the child reports”. Neither counsel requested it, but I could make a referral into that research study. I have misgivings however. Children of these ages should have a voice but not a choice. According to the Applicant, the children have clear views and preferences. According to the Respondent, the views and preferences that the children might voice are a result of manipulation and alienation by the Respondent. Without accepting either position, on this record, I am not prepared to make a referral to the research project that risks reinforcing negative behavior that is currently demonstrated by the children.
[38] I indicated at the outset of the motion on June 9 that I would not make an order for representation pursuant to s. 89(3.1). Having reviewed all of the material, I will ask for input from the OCL before deciding what role, if any, I might ask the OCL to play.
[39] On August 20, 2014, Paisley J. made a referral to Mediate 393. There is no evidence that the parents pursued that opportunity and I ask that they seriously consider whether child-centred mediation might assist in reduction of the conflict that is engulfing the children.
[40] I am not prepared to make an order that the Respondent have temporary sole custody or that the Applicant’s access be supervised. To do so would require me to accept the evidence on behalf of the Respondent that the Applicant has engaged in manipulative behavior that has resulted in the children being alienated from their mother. Should a trial occur, such findings may be made. But it is premature at this point. If I were to make an order for temporary sole custody or temporary supervised access, it would be seen to vindicate the Respondent and penalize the Applicant. Equally as important, it would communicate to the children that the court had upheld the view of the father over the mother. Furthermore, given the long standing time-sharing regime, it would be a dramatic change to the children which would not be in their best interests.
[41] Having reviewed what has been done, I am nonetheless satisfied that the court must address the chaotic circumstances in which these children are situated. I rely on the primary objective in rule 2 and the best interests of the children.
[42] I see grave concerns that must be addressed and, in the absence of a functional collaborative decision-making protocol, I must give one parent the authority to do so. L.J.S. is expected to change schools, and as indicated in the Minutes of Settlement, the decision had to be made in June, 2016. The evidence does not indicate that the parents have managed to do so. If the decision has been made, then what follows will not be needed. If the decision has not been made, I am satisfied that since the Respondent has many years’ experience as an educator in the Toronto District School Board, and as mother of L.J.S., she will make the decision that takes into account the child’s needs, interests, and geographical issues arising from their separate residences.
[43] The Minutes of Settlement provided that for the summer of 2016, the children would attend day camp and that each parent would have 2 non-consecutive weeks with the children. There is no indication that any of the plans for 2016 have been implemented. The children and parents need certainty over the imminent summer and accordingly, I will make an order to address that below.
[44] The children, and particularly O.S., are exhibiting behavior that indicates they are under considerable stress. The very high conflict between the parents demonstrated in the affidavits mandates that parents and children need therapeutic intervention. As indicated in the CAS records, the worker recommended Yorktown Child and Family Services. Without deciding whether the need for therapy is caused by the alleged alienating behavior of the Applicant or simply because the children have been enmeshed in conflict for almost 3 years, it is clear that the children need independent professional help. The parents have been unable to come to an agreement as to the nature of the intervention. The parents ought to be part of a therapeutic process whether with the children or separately. As indicated below, I intend to take steps designed to accelerate that referral to Yorktown and make it a priority.
[45] The recognizance of bail prohibited the Applicant from having direct or indirect communication with the Respondent. I agree with the caution advocated by the Applicant’s defence counsel that communication by the Applicant to Ilana Tamari could be perceived as indirect contact with the Respondent and therefore possibly a violation of his bail conditions. In his affidavit, he indicated that he was returning to the Ontario Court of Justice to seek a variation of his bail conditions that would have allowed communication. I do not know if that was done or was successful. I am concerned that the suggestion may have been that Ms. Tamari act as the third person for communications. If that has happened, and if Ms. Tamari consented, then the communication dilemma may have been resolved. However, Ms. Tamari filed an affidavit in support of the Respondent’s motion and for that reason, her continuing role as parent co-ordinator/arbitrator may be questionable. Unless the parties agree otherwise, communications will have to be through counsel.
[46] Rule 14(4) provides that no motion may be heard before a conference dealing with the substantive issues in the case has been completed. The only case conference was held on August 20, 2014. Much has happened since then. I am satisfied that it is the best interests of the children that the parents attend a case conference as soon as possible after the end of the school year and that the motions ought not to proceed until that case conference has been completed. On the basis of the record before me, it may be that I have no choice but to order a trial of the parenting issues as soon as possible, which could be in late fall 2016. That will be enormously costly both emotionally and financially. A case conference will give the parents an opportunity to avoid that course of action.
Order to Go as Follows
[47] K.L.H. has sole authority to make educational decisions for L.J.S., born […], 2003 for the school year September 2016 to June 2017 including registration at school, educational assessments, if any, extra-curricular activities associated with the school, and transportation to and from school. If there are costs associated with her choice, the Respondent shall pay those costs subject to reapportionment with the Applicant on a motion or by the trial judge.
[48] If necessary to make decisions immediately, counsel for the Respondent may take out an order consistent with paragraph 47 only without approval as to form and content by counsel for the Applicant.
[49] Through respective counsel, the parties shall do the following: (a) by Friday June 17, 2016 at 4:00 p.m. the Applicant shall confirm in writing the two non-consecutive weeks he wants; (b) by Monday June 20, 2016 at 4:00 p.m. the respondent shall confirm in writing the two non-consecutive weeks she wants provided that they do not conflict with the Applicant’s choices; (c) by Monday June 27, 2016 the parties shall agree on the camps or other activities the children will attend during the summer of 2016 when not with either parent and the parties shall each pay 50% of the costs, subject to re-apportionment on motion or at trial.
[50] Counsel for the Respondent shall forthwith send to the CAS worker Rob McMullan a copy of this endorsement by which I am asking that he make it a priority to accelerate the referral to Yorktown Child and Family Services or such other appropriate and available resource.
[51] Parties and counsel shall attend before me for a case conference on Monday July 4, 2016 at noon. Neither party is required to serve and file a case conference brief. Both counsel shall serve and file a confirmation form. The issues for consideration at that case conference will include the following: (a) what role, if any, the Office of Children’s Lawyer will play in resolving the outstanding issues; whether the refusal by the Respondent to consent to release of historical therapeutic records is an impediment to the OCL updating and completing the report; or an impediment to the OCL starting the clinical investigation anew; whether in the absence of a completed investigation and report, it would be appropriate for the OCL to consider appointing counsel pursuant to s. 89(3.1); and what order I should make, if any; (b) whether Ilana Tamari should be asked to write the s. 30 assessment, and if so, at what cost and paid by whom; (c) whether the CAS has expedited the referral to Yorktown and, if not, what therapeutic intervention the Applicant and Respondent have arranged for the parents and the children; (d) whether the parties have participated in mediation with 393 Mediate or other mediators; (e) whether a trial should be ordered in the late fall 2016 on the parenting issues only; (f) disclosure required by each party; (g) if necessary, scheduling of the remaining motion brought by the Respondent including the motion for an order that the Applicant pay 50% of the s. 30 assessment and the motion to strike the Applicant’s pleading; (h) other issues which counsel agree in advance should be discussed.
[52] Counsel for the Applicant father shall forward to Katherine Kavassalis, Legal Director, Children’s Lawyer, a copy of this endorsement with a request that she or her designate attend that case conference.
[53] The motion to change FS-14-19405-0001 issued May 17, 2016 is dismissed on the basis that it is unnecessary. The court clerk is directed to close the file FS-14-19405-0001.
[54] Upon delivery by counsel for the Respondent of a copy of the May 9, 2016 order in FS-14-19405, the court clerk shall cancel the order dated May 9, 2016 as a “final” order and reissue it as a “temporary” order and amend the court data entry accordingly.
[55] Counsel for the Applicant and for the Respondent shall: (a) consolidate all motions and affidavits into FS-14-19405, including all affidavits filed on behalf of the Applicant and the Respondent in these motions; (b) ensure that the endorsement briefs in FS-14-19405 and FS-14-19405-0001 are consolidated; and (c) ensure that the index to the consolidated endorsement brief in FS-14-19405 is brought up to date.