Court File and Parties

COURT FILE NO.: FC-12-3056-0 DATE: 2016/08/18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nikhilesh Harit, Applicant AND Jaspreet Harit, Respondent

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Brian Ludmer, for the applicant Richard P. Bowles, for the respondent

HEARD: August 11, 2016

Endorsement

corthorn j.

[1] The applicant father brings this motion for variation of an interim order – in particular for the removal or suspension of the requirement that the children’s access visits with him be supervised. The respondent mother consents to the removal of the supervision requirement. However, her consent is conditional on the father agreeing to vary the access schedule. To that end, the mother brings a cross-motion for an order removing the supervision requirement and varying the access schedule. The variation requested to the access schedule is in accordance with the most recent recommendation of the psychologist who has been working with the family since 2013.

[2] The trial in this matter is scheduled to proceed during the sittings scheduled for the week of September 26, 2016 – 6.5 weeks subsequent to the date on which the motion was heard.

[3] The issues to be determined on this motion are:

1. Is the requirement for supervision of the children’s access visits with their father to be removed or suspended?
2. If the supervision requirement is removed or suspended, on what terms is the removal or suspension to occur?

Background

[4] The parties were married in 1997 and separated in late 2011 or early 2012. There are two children of the marriage: Aneesha Harit (born on July 22, 2004 – “Aneesha”) and Ajeet Harit (born on December 16, 2006 – “Ajeet”). Aneesha is now 12 years old and Ajeet is 9.5 years old.

[5] The endorsements, orders, and reasons given by my colleagues, who have previously been involved in this matter, are of assistance in understanding:

• The basis upon which the current access schedule was ordered;
• Why the requirement for supervision was added with respect to the children’s access visits with their father; and
• The circumstances under which it was originally anticipated that the supervision requirement would be removed and the children would once again have unsupervised access visits with their father.

[6] The current access schedule has been in place since September 2013 when each of the parties brought a motion for relief with respect to custody and access. The motions were heard by Justice Laliberté, whose order provides as follows:

1. The applicant and respondent have joint custody of the children;
2. The respondent makes final decisions with respect to health, education, and general welfare but must consult the applicant before coming to her final decisions in that regard;
3. The primary residence of the children is with the respondent;
4. The schedule pursuant to which the children have access visits with their father is as follows: a) Every second weekend from Friday at 4:00 p.m. until Sunday at 6:00 p.m., with the access visit to be extended to Monday at 6:00 p.m. on those weekends on which the Monday is a statutory or school holiday; b) On the Wednesday prior to the mother’s weekend from 4:00 p.m., overnight; with the father delivering the children to school; and c) On the Wednesday prior to his weekend with the children, from 4:00 to 7:00 p.m.

[7] The order of Justice Laliberté includes terms related to the method of and location for pick-up and drop-off, frequency and duration of telephone contact between the non-access parent and the children, and birthdays, et cetera. In his reasons, Justice Laliberté noted that his order was temporary and followed a period during which the father had not seen the children together (i.e. at the same time) or for any overnight visits. Justice Laliberté found that the parties and the children required a “transitional period”, with the intention that such a period would allow the parties to adapt to the new reality at the time; meaning an increase in the frequency and duration of the children’s access with their father.

[8] A case conference was to be the next step in the application following the motion before Justice Laliberté. That case conference did not take place prior to the parties returning to the Court on a motion by the father in which he alleged that the mother was in contempt of Justice Laliberté’s order. The mother had unilaterally terminated the children’s access visits with their father.

[9] In support of her unilateral decision to terminate the children’s access visits with their father, the mother relied on four incidents. In the mother’s view, the incidents demonstrated that the father could not control his anger and continued to place the children’s safety at risk. In response to the father’s motion, the mother requested that the children’s access visits with their father be supervised.

[10] The father’s motion was heard by Justice De Sousa in March 2014. She determined that the existing order of Justice Laliberté to be reinstated immediately. In her reasons, Justice De Sousa said that the father described himself at the time as “emotionally, mentally, and physically drained”. Justice De Sousa noted that it would be up to the father to “decide whether he has the emotional, mental and physical energy to create a conflict-free setting for the children’s visits. If not the existing visits, as recommended by Dr. Leonoff, will have to be reconsidered.” [1] Justice De Sousa did not require that the children’s access visits with their father be supervised.

[11] In April 2015, the matter was once again before the Court; this time on a motion by the mother for an order addressing the manner of access by the father and for the file to be case managed; the latter because of the high degree of conflict in the case. The motion was before Justice Kershman, who concluded that the children’s access visits with their father should be supervised, “for the safety and peace of mind of the children based on the [f]ather’s past behaviour.” [2]

[12] The imposition of the supervision provision by Justice Kershman was based in part on the opinion of Dr. Leonoff, as expressed in his report dated April 2015, including the following:

Interestingly the children embraced this opportunity for supervision. My impression is that they felt relieved because they knew their mother would accept this condition, as it was her idea, and they could finally relax ...

I do think that supervised access for the father is a good idea although not necessarily for the reasons that [the mother] implied. Mainly, it frees the children to have a relationship with their father without aggravating [their mother’s] fears, deep mistrust, and concern for what the children are going through. This supervisory requirement will benefit the father as he can at least continue to see his children without threat of being excoriated for actions that he is sure are not valid.

[13] Justice Kershman made no other changes to the order of Justice Laliberté (as modified slightly by the order of Justice De Sousa). Based on the recommendations of Dr. Leonoff with respect to the duration of supervision and the manner in which it would ultimately be suspended, Justice Kershman ordered as follows:

Suspension of the supervision of access condition should be gradual and not considered for at least six months from April 14, 2015. When it is relaxed, the children should be de-briefed by an assessor, therapist or school counsellor after weekend visits to hear directly from them if there were problems. Telephone or Skype would suffice if in-person sessions are difficult to arrange. Any report of similar difficulties should be grounds for further assessment. An assessor or Parent Coordinator should assist the parents in the process. [3]

[14] The above-quoted term has not been varied by any subsequent order.

[15] I find that it is the order of Justice Laliberté, as varied by the May 2015 order of Justice Kershman, which provides the legal status quo with respect to: a) the schedule for the children’s access visits with their father; b) supervision of access visits; and c) the manner in which supervision of access visits is to be suspended.

[16] Justice Kershman presided over a case conference in January 2016, at which time and on the consent of the parties, he ordered that the children were to proceed to counselling. The order with respect to counselling required that the parties try two counsellors recommended by Dr. Leonoff.

[17] During the same case conference in January 2016, Justice Kershman scheduled the trial to proceed during the September 26, 2016 sittings, “[n]otwithstanding that no settlement conference has been held [and] due to the high conflict and the children involved.” He also scheduled a settlement conference to take place on June 20, 2016. The supervision in place at the time was to continue; although the supervisor was to be replaced.

[18] Another case conference order was made by Justice Kershman on May 3, 2016 in which the issue of counsellors for the children was addressed. As of that date, the parties had not been able to agree upon a counsellor or counsellors for the children. Justice Kershman’s order from that case conference provides for the counsellor(s) to be chosen by the court in the event the parties were not able to agree upon same.

[19] At the same case conference, Justice Kershman set the schedule for the father’s supervised access visits with the children for the month of May 2016. With respect to the litigation schedule, Justice Kershman ordered a further case conference to take place on May 31, 2016, “to discuss the access.” Justice Kershman identified August 11, 2016 as the return date for a motion, “out of an abundance of caution” and to deal with the issue of access if required. On the consent of the parties, Justice Kershman ordered that Dr. Leonoff was to prepare a report by June 30, 2016 and provide it to the parties.

[20] The parties were not able to agree upon a counsellor for the children. On May 6, 2016 Justice Kershman made an order appointing Dr. Sharon Francis Harrison as the counsellor for the children. In making that order, Justice Kershman noted that Dr. Harrison was recommended by Dr. Leonoff and that the mother objected to the appointment of Dr. Harrison.

[21] Justice Kershman presided over the case conference on May 31, 2016. His endorsement from that event includes the following:

Settlement conference scheduled for August 23, 2016 at 2:00 p.m. – 2 hours – before Kershman J.

The issue concerning access revolves around whether it should be supervised or not.

Both parties agree as to what the schedule is, which is every other weekend from Friday at 4:00 p.m. to Sunday at 6:00 p.m.; In Week 1, Wednesday night from 4:00 p.m. to Thursday at 8:30 a.m.; In Week 2, Wednesday from 4:00 p.m. to 7:00 p.m. …

This is only a case conference and not a motion. Notwithstanding what is set out in Rule 17(8)(b-f), the Court declines to make an order changing the access from supervised to unsupervised without [ illegible ] by a motion.

There is an allegation by the mother that the CAS has opened a new file in relation to the children.

The court is not sure whether there is a concern of the CAS in relation to the children or not.

The court’s concern is the “best interests of the children”; A motion date is set for August 11, 2016.

There are existing court orders dealing with access.

The court orders that until [a] motion is heard access shall continue as above …

The court access regime is supervised access until either a consent of the parties [ illegible ] or an order of the court, the access shall be supervised …

Parties to advise Kershman J. by June 23, 2016 if Dr. Harrison is available to start children’s counselling in July 2016. If she is not available, Dr. Leonoff to provide recommendations to the court of who else can do the counselling.

[22] The report from Dr. Leonoff which Kershman J. ordered be available as of June 30, 2016 was not available until at least August 2, 2016. In that report, Dr. Leonoff recommends that the supervision of the father’s access visits with his children be suspended. That report, and the use, if any, that can be made of it on the motion and cross-motion are discussed in greater detail below.

Positions of the Parties

a) The Applicant Father

[23] The father’s position is that the affidavit evidence filed on the motion and cross-motion is sufficient to support a finding that it is in the best interests of the children that supervision of their access visits with him be suspended. The “layer” of supervision imposed on the existing access schedule, as set in September 2013 by Justice Laliberté, is to be removed without any variation of the access schedule. There has been no material change in circumstances which warrants a revision of the access schedule, in particular with a final determination of that issue to be made at trial in approximately six weeks.

[24] The father’s affidavit, which is 29 pages and 128 paragraphs in length, was sworn on August 4, 2016. In the affidavit, the father makes no mention of the August 2, 2016 report of Dr. Leonoff. The father’s position on the motion is said to be entirely independent of that report.

[25] The father also relies on affidavit evidence from friends, family members, and at least one of the supervisors formerly involved with the family. There are 16 such affidavits. I note that the affidavits were sworn on August 1, 2, or 3, 2016.

[26] In their respective affidavits, these individuals address the father’s qualities a parent and, in particular, his ability to care for the children without supervision.

b) The Respondent Mother

[27] The mother consents to the children having unsupervised visits with their father on the condition that the revised access schedule set out in Dr. Leonoff’s August 2, 2016 report is followed. She is, by way of a cross-motion, seeking an order varying the access terms on that basis.

[28] The revised schedule recommended by Dr. Leonoff, assuming the supervision requirement is suspended, is for the children to see their father:

• Every Wednesday night from 3:30 p.m. (or another time if more convenient) until the following morning when they are to be delivered to school or to their mother’s home depending on the time of year; and
• Every two of three weekends, from Saturday at 10:00 a.m. until Sunday at 3:00 p.m.

[29] The mother’s position is that if the access schedule is not revised accordingly, then the children’s access visits with their father are to continue as per the existing schedule and remain supervised.

[30] In response to the father’s motion and in support of her cross-motion, the mother relies on her affidavit sworn on August 7, 2016. That affidavit is three pages and 11 paragraphs in length. A copy of the August 2, 2016 report of Dr. Leonoff is included as an exhibit to her affidavit. The mother also relies on a number of her historical affidavits on file.

Evidence

[31] The factual record in this matter is in dispute. The evidence to be considered at the trial of this matter will include that of the father, the mother, and in all likelihood a number of the individuals who worked with the family as supervisors over time. Dr. Leonoff’s recommendations, including those made in his most recent report, are based at least in part on information provided to him by those individuals and others.

[32] The credibility of the individuals upon whose information Dr. Leonoff’s recommendations are based is an important issue in this case. None of the affiants, including the parties, have been cross-examined on their respective affidavits. Dr. Leonoff was not cross-examined on his August 2, 2016 report. As a result, it is not possible at this stage to weigh the evidence of the individuals and address their credibility as witnesses nor is it possible to weigh Dr. Leonoff’s conclusions.

[33] In reaching my decision in this matter, I must still give consideration to whether it is possible to rely in any way on the opinions and conclusions expressed in the report of Dr. Leonoff dated August 2, 2016. [4]

Analysis

[34] On an interim motion of this kind, in particular, with the trial of the matter scheduled to take place in six weeks, the primary considerations include providing stability for the children who are caught in the throes of their parents’ matrimonial dispute. An important factor in determining the best interests of the children is to maintain the legal status quo. [5]

[35] As noted above, I find that the legal status quo consists of: a) the access schedule as set out in the September 2013 order of Justice Laliberté; and b) the terms related to supervision in the order of Justice Kershman dated May 2015. For the status quo to be disturbed by an interim motion, the party seeking the variation must demonstrate either that the existing arrangements for the care of the children constitute a danger to the children or that there is some other compelling reason to change the arrangements. [6]

1) Request to Remove Supervision Requirement

[36] In deciding whether or not to remove the supervision provision, I have considered: a) why it was imposed initially; b) what was intended when supervision was ordered; and c) what basis there is at this time, if any, for the removal or suspension of the supervision.

[37] In April 2015, Dr. Leonoff released a report in which he recommended that the children’s time with their father be supervised. That report was released two days prior to the date on which the father’s motion, heard by Justice Kershman and arising from the mother’s unilateral cessation of access. I note the following with respect to Dr. Leonoff’s April 2015 report:

• The report is the second follow up report to Dr. Leonoff’s original report dated July 2013.
• Dr. Leonoff met with the parties and with the children at the request of counsel for the parties, “in order to address [the] latest incident of interrupted access instigated by the mother after hearing the reports of [then] 10-year old Aneesha and 8-year old Ajeet.”
• Dr. Leonoff described as an escalating situation, the “unhealthy psychological field” created by the interaction between the parties, “the highly charged and stymied family environment”, and the impact of all of the foregoing on the well-being of the children.

[38] Dr. Leonoff recommended that the children’s time with their father to be supervised. His reasons for doing so included the following:

I do think that supervised access for the father is a good idea although not necessarily for the reasons that Jaspreet implied. Mainly, it frees the children to have a relationship with their father without aggravating her fears, deep mistrust and concern for what the children are going through. This supervisory requirement will benefit the father as he can at least continue to see his children without threat of being excoriated for actions that he is sure are not valid.

[39] Dr. Leonoff’s recommendation was that the imposition of the supervision term should not result in a “diminution in access.” Dr. Leonoff also addressed that the father was, at times, taking the children to visit their extended family in Montreal. He made recommendations with respect to out-of-town supervision and interviews to be conducted of the children after such trips. I make note of these recommendations because they are similar to the recommendations upon which Justice Kershman relied in setting the terms pursuant to which supervision is to be suspended. [7]

[40] Dr. Leonoff recommended that supervision be in place for a minimum of six months. With respect to the duration and, in due course, suspension of supervision, Dr. Leonoff recommended as follows, “Suspension of the supervisory condition should be gradual and not considered for at least six months. When it is relaxed, the children should be de-briefed by an assessor, therapist or school counselor after weekend visits to hear directly from them if there were problems.” This recommendation was incorporated verbatim into the May 2015 order of Justice Kershman.

[41] The applicant’s uncontradicted evidence is that since May 2015, he has paid in excess of $27,000 for the services of private supervisors. In the 16 months since May 2015, nine individuals have worked as supervisors and in excess of 500 hours of the children’s access visits with their father have been supervised.

[42] It was anticipated that as of late 2015 or early 2016, there would be a review of the supervision requirement. The appearances by the parties before Justice Kershman in 2016 provided the Court with an opportunity to review the issue of access in light of the imposition of a supervision term that was intended to be temporary.

[43] The reports of Dr. Leonoff in this matter include a report dated January 22, 2016 addressed to the former Parenting Co-ordinator, Kathryn D’Artois (“Ms. D’Artois”). A copy of this report is included as an exhibit to the father’s affidavit. The report is said to be in response to a request that Dr. Leonoff provide feedback on the most recent cessation of access between the children and their father. The cessation was unilateral on the part of the mother.

[44] The following passage from Dr. Leonoff’s January 2016 report is relevant to the determination of the issues on the motion and cross-motion:

As to supervision in this case, I would reiterate that it was offered as the best route to stabilize father and Children in their relationship by providing [the father] with an independent witness to demonstrate the normalcy of his parenting behavior [sic]. It was not intended to be a fate or a punishment. It was recommended in combination with focused therapy.

[45] It is not clear whether that report was before Justice Kershman on January 26, 2016 for the purpose of the case conference at that time. He did not reference it in his endorsement.

[46] Also included as an exhibit to the father’s affidavit, is a copy of an e-mail dated February 5, 2016 sent by Dr. Leonoff to Ms. D’Artois. In that e-mail, Dr. Leonoff appears to be setting the stage for the suspension of supervision. He stated as follows:

To reiterate what I covered in my January 26th report, the justification for supervision in the first place was for [the father] to demonstrate that he could provide care to the children without exposing them to excessive emotional frustration or involving them overtly in parental conflict. [The current supervisor] has subsequently reported that [the father’s] care is appropriate. My understanding is that this has been the case for some time …

I view it as essential, however, for the family’s interests that [the father] is able to document an accepted record of stability for his and the children’s welfare. It is a necessary part of the solution.

Thus, I would recommend that supervision continue long enough for [the father] to register two ‘clean’ additional cycles with each cycle comprising a Wednesday visit and a weekend.

Secondly, I would recommend that the percentage of cost sharing be reversed with [the mother] paying three-quarters and [the father] paying one-quarter. The underlying rationale is that [the father] had already demonstrated several ‘clean’ cycles, according to [the current supervisor]. As such, the requirement for additional supervision is essentially due to [the mother’s] loss of confidence in the [current supervisor].

[47] It is the father’s position that subsequent to early February 2016, the mother ‘engineered’ circumstances such that it made it difficult, if not impossible, for him to “register two ‘clean’ additional cycles” as directed by Dr. Leonoff. In the 16-week period from January until early May 2016, the children saw their father on one occasion. The mother’s ‘engineering’ of the circumstances is said to include her contact with the Children’s Aid Society of Ottawa Carleton (“the Society”) in the days prior to the May 31, 2016 case conference. The father’s position is that the mother’s contact with the Society was entirely unwarranted and made solely in an effort to delay the potential suspension or removal of the supervision requirement.

[48] The mother’s communication with the Society was noted by Justice Kershman in his May 31, 2016 endorsement. The end result of the Society’s involvement was not known on May 31, 2016.

[49] The father asks the Court to draw an inference that the supervision requirement would have been “lifted” but for the mother contacting the Society in advance of May 31, 2016. I am not in a position to draw an inference as to what Justice Kershman would have done but for that contact with the Society. I am, however, in a position to draw an inference that the uncertainty of an open file with the Society contributed to the continuation of the supervision requirement as of that date.

[50] The end result of the Society’s involvement at that time is now known. Their file was closed; they found no protection concerns. The Society is said to have informed the mother that it will not automatically open a file upon receipt of communication from her. Steps will be taken by the Society to determine the veracity of the information being provided by the mother before a file is opened. The father argues that the Society’s conclusions with respect to the manner in which the mother is attempting to ‘use’ the Society supports his position that the mother ‘engineered’ the circumstances in the spring of 2016 to preclude the suspension of the supervision requirement.

[51] The father does not rely on the contents of Dr. Leonoff’s report in support of his request for the supervision requirement to be removed. Rather, the father points to the evidentiary record which, in his submission, supports the following findings:

• It was clearly contemplated that the supervision requirement would not be a permanent state of affairs.
• A trial is not required to resolve the issue of whether the supervision requirement is to be removed or suspended.
• It would be contrary to the law for the supervision requirement to remain in place.

[52] As submitted on behalf of the father, regardless of the contradictory nature of the affidavit evidence over time, it is possible to find even without the benefit of cross-examinations or hearing the witnesses at trial, that supervision of the access visits has “taken on a life of its own”. I agree with counsel for the father that no one would have contemplated that supervision would have continued for almost 16 months, with nine different supervisors in place over time; resulted in over 500 hours of supervised access; and resulted in an expense of in excess of $27,000 for the father for the privately-hired supervisors.

[53] In her affidavit sworn on August 7, 2016 the mother states her agreement with the cessation of supervised access. The mother is represented by counsel and would no doubt have been advised that her consent in that regard is not determinative of the father’s motion. Regardless, the mother chose not to provide any evidence of any specific issues or concerns that she has, at this time, with respect to the removal or suspension of the supervision other than to say that she agrees with the revised access schedule recommended by Dr. Leonoff.

[54] Although I do not rely on the contents of Dr. Leonoff’s August 2016 report in support of my decision with respect to the issue of supervision, his description of what has become of the situation with supervision in effect appears to be apt: “Even supervisors, intended to eliminate the need for the children to report and [the father] to demonstrate his self-control, have become fuel for the fire.”

[55] In his August 2, 2016 report, Dr. Leonoff re-visited the rationale behind his 2015 recommendation for supervision and considered the end-result of the supervised access visits:

I did provide a rationale for supervision that could be seen as supportive of the children and father. On the other hand, it was in the context that [the father] was pressuring the children to go around their mother if they wanted more time with him. He notes that the children do not appreciate the supervision although they apparently told the Violence Against Women counselors that they welcomed it. Unfortunately, the supervision simply added another risk factor in many cases rather than offering a way out as was intended. The children had no input into this decision and, in any case, the family field, so split and fractious along the lines I have already described, was in place before there was ever a supervisor.

[56] In keeping with the principle of maximizing the contact between the children and their parents that I find that it is appropriate to remove the supervision requirement. In that regard, I refer to the decision of Jollimore, J. in Moore v. Moore, 2013 NSSC 252, in which the phrase “maximizing parental contact” was considered:

In making a variation order, I am to give effect to the principle that [the child] should have as much contact with each of her parents as is consistent with her best interests. This is provided for in subsection 17(9) of the Divorce Act. While this is often reduced to the phrase “maximizing parental contact”, the principle is more nuanced than that. The Principle requires that the child’s best interests must be considered in determining the optimum amount of contact the child should have with each parent. For this reason, I prefer to think of subsection 17(9) as optimizing parental contact: what is the greatest amount of contact that is in the child’s best interests in the existing circumstances? [8]

[57] The father’s application in this matter is pursuant to the Children’s Law Reform Act [9] and not the Divorce Act [10]. However, the principle of maximizing or optimizing the contact between children and their parents is the same under either statute.

[58] On the father’s motion, it is a matter of optimizing the quality of the children’s time with their father. In my view, the contact which Aneesha and Ajeet have with their father will be optimized by the suspension of supervision of their access visits with their father. I find that it is in their best interests that the supervision be suspended pending further order of this court, at trial or otherwise.

2) Terms for Suspension of Supervision

[59] The father’s position is that: a) the return to unsupervised access does not, in and of itself, lead to the requirement to change the access schedule; and b) a change in the existing access schedule may only be ordered if there has been a material change in the circumstances subsequent to the September 2013 order made by Justice Laliberté. With respect to the latter, the father submits that the concerns with respect to his behaviour (anger management and volatility) were not the primary reason why supervision was ordered initially. To the extent that there remain concerns about his anger management and volatility those concerns have been present from the outset. They are not something “new and unforeseen”. [11] In summary, there has been no material change in circumstances.

[60] The mother’s position is that Dr. Leonoff’s recommendations are to be followed and a new access schedule, in accordance with his recommendations, is to be ordered. Addressing the evidentiary issue which arises from that position, the mother submits that Justice Kershman ordered the most recent report of Dr. Leonoff specifically for the purpose of reviewing or re-considering the supervision issue. As a result, the Court is not restricted in the use to be made of the report on the motion and cross-motion for interim relief.

a) Evidentiary Issue – Dr. Leonoff’s August 2016 Report

i) Purpose for which the Report was Ordered

[61] I find that Dr. Leonoff’s most recent report was ordered for the purpose of trial and not for the interim motion anticipated with respect to the issue of access. First, it was on the consent of the parties that Dr. Leonoff was ordered to provide an updated report. The order was made on May 3, 2016. Justice Kershman set the deadline of June 30, 2016 for the delivery of the report to the parties.

[62] Justice Kershman also ordered that a further case conference be held on May 31, 2016 “to discuss the access”. It is clear that he was not seeking further input from Dr. Leonoff for the purpose of the May 31, 2016 case conference. In May 2015, Justice Kershman prescribed the process for the suspension of supervision. He began in January 2016 and continued through May 2016 to deal with the parties with respect to the issue of the potential suspension of supervision of the father’s access visits with the children.

[63] It was at the case conference on May 31, 2016 that the settlement conference was re-scheduled from June 20 to August 23, 2016 and the return date of August 11, 2016 was set for a motion with respect to access if required. In that regard, Justice Kershman highlighted that, “[t]he issue concerning access revolves around whether it should be supervised or not.” Justice Kershman made no mention whatsoever of Dr. Leonoff’s report in the context of the motion with respect to access.

[64] In summary, I find that the purpose of the updated report from Dr. Leonoff was for use at trial.

ii) Use of Dr. Leonoff’s Report on Interim Motions

[65] Given my finding with respect to the purpose for which the August 2016 report of Dr. Leonoff was ordered, it is necessary to determine whether any portion of the report may be relied on to determine the mother’s cross-motion for interim relief. In particular, is it possible to rely on the portion of Dr. Leonoff’s report in which he recommends that the access schedule be revised?

[66] The law is clear that an assessment report prepared for trial should not be relied upon for an interim purpose other than in exceptional circumstances where immediate action is mandated by the assessor’s report. [12] I am aware of the line of cases which suggests that a finding of “exceptional circumstances” is not required to permit the Court to consider an assessment report where, on an interim motion, the Court is determining an issue addressed by the assessment and for which there are no existing orders. Proceeding in that manner allows for issues not previously adjudicated upon to be addressed while leaving “genuine triable issues” alone and to be determined through evidence at trial. [13]

[67] The issues of the imposition and suspension of the supervision requirement have already been addressed: in Justice Kershman’s May 2015 order. Pursuant to that order, supervision is to be suspended gradually and the method by which to monitor the situation once unsupervised access visits begin is prescribed.

[68] Counsel for the father described the supervision as a ‘layer’ added in 2015 to the existing access schedule. He described the father’s motion as confined to the narrow issue of removal of that layer. I agree with that characterization of the father’s motion.

[69] In support of her request for a variation in the access schedule, the mother asks the Court to consider the following portion of Dr. Leonoff’s August 2, 2016 report:

Supervision should be lifted as a requirement not because the incidents do not matter but because the supervision offers no protection from them occurring. Further, the children continue to report to their mother, which only fuels the repercussions. At the same time, the access should be channeled to brief visits, which should prove easier on the children and their father. To be clear, the goal in this case is to improve the probability that he can have successful and adverse-event free visits with his son and daughter.

[70] Custody and access are the two main issues to be determined at trial. An important issue for the trial judge will be how to achieve the goal of “adverse-event free” access visits for the children with their father. The factual record, as it relates to the parenting abilities of the father over time, is in dispute. The schedule for the children’s access visits with their father is not a matter that can be determined on the basis of the record before me. It requires the full investigation that the trial provides. As part of that process, the trial judge will determine the weight to be given to the opinion of Dr. Leonoff with respect to the access schedule.

[71] In my view it would be inappropriate to change the access schedule six weeks in advance of the date of trial. To make a change to the schedule now would lead to the possibility that these children, who have to date experienced significant turmoil in their lives and inconsistency in their access visits with their father, would see the schedule changed twice in a relatively short period of time. [14]

[72] I find that providing stability for the children as they approach the commencement of another school year and as the trial date approaches is in their best interests. The access schedule shall remain as set out in the September 2013 order of Justice Laliberté.

b) Suspension of Supervision

[73] The order of Justice Kershman dated May 2015 provides “a reasonably acceptable solution to a difficult problem [the imposition and suspension of supervision] until trial.” [15] There is no compelling reason to vary paragraph 6 of the May 2015 order.

[74] In accordance with that order, the children are to be de-briefed by an assessor, therapist, or school counsellor after weekend visits – allowing them to speak directly regarding any problems encountered. Pursuant to the order of Justice Kershman dated May 6, 2016, Dr. Sharon Francis Harrison was appointed as the counsellor for the children. It is therefore appropriate that she be the person with whom the children speak after weekend visits with their father.

[75] When appointing Dr. Harrison as the children’s counsellor, Justice Kershman “noted” the mother’s objection to same. I therefore require the father to take the steps necessary to arrange the de-briefing appointments to follow each of the next three weekend access visits that the children are scheduled to have with him. In accordance with the order of Justice Kershman, these de-briefing sessions may take place by telephone or by Skype if an in-person session is not possible.

[76] The parties are to share equally the expenses associated with the de-briefing sessions. The sessions are for the benefit of the children, not the parties. Therefore, it is appropriate that both parties share in the expense.

[77] Justice Kershman’s May 2015 order requires that the parents do their part to ensure that the transition from supervised to unsupervised access visits for the children with their father goes smoothly. They are to work with either a Parenting Co-ordinator or an assessor. The Parenting Co-ordinator who was previously involved with the parties resigned from that position. As there is no Parenting Co-ordinator in place, it is incumbent upon the parties to work with an assessor.

[78] The parents are therefore to individually consult with Dr. Leonoff and to work with him, in accordance with his recommendations, to assist them with the transition from supervised to unsupervised access visits for the children with their father.

[79] The children see their father every second weekend from Friday evening until Sunday evening and they see him every Wednesday night (with every second Wednesday night being overnight). Based on the calendar for 2016, there are six weekends between now and the week in which the trial is scheduled to commence. The children therefore have three weekend visits scheduled with their father between now and the commencement of the trial.

[80] I do not know where in the two-week access cycle the family is at the moment. In accordance with the requirement that the suspension of supervision be gradual, the transition of unsupervised visits is to occur as follows:

a) The first unsupervised visit is to occur on the next Wednesday following the date of release of this endorsement on which the access visit is scheduled for 4:00 to 7:00 p.m.; b) The children’s access visit with their father immediately thereafter shall be supervised; c) The second unsupervised visit is to occur on the next Wednesday following the date of release of this endorsement on which the access visit is scheduled from 4:00 p.m. and overnight; d) The children shall, in accordance with the existing schedule, be with their mother on the weekend immediately thereafter; e) The third unsupervised visit is to occur on the second Wednesday following the date of release of this endorsement on which the access visit is scheduled for 4:00 to 7:00 p.m. f) The fourth unsupervised visit shall occur on the children’s access visit with their father on the weekend that immediately follows the third unsupervised visit; and g) Following the fourth unsupervised visit and for each weekend access visit with their father, the children shall be de-briefed by Dr. Harrison in accordance with paragraph 6 of the May 2015 order of Justice Kershman.

[81] The intention of the schedule set out above is that the unsupervised visits will increase in duration from three hours on Wednesday night to Wednesday overnight and ultimately to the full weekend access visit.

Summary

[82] For the reasons set out herein, I order as follows:

1. The supervision of the children’s access visits with the applicant is suspended pending further order of the court.
2. The suspension of the supervision of the children’s access visits with the applicant shall occur on a gradual basis, in accordance with the following schedule: a) The first unsupervised visit shall occur on the next Wednesday following August 17, 2016 on which the access visit is scheduled for 4:00 to 7:00 p.m.; b) The children’s access visit with the applicant immediately thereafter shall be supervised; c) The second unsupervised visit shall occur on the next Wednesday following August 17, 2016 on which the access visit is scheduled from 4:00 p.m. and overnight; d) The children shall, in accordance with the existing schedule, be with the respondent on the weekend immediately thereafter; e) The third unsupervised visit shall occur on the second Wednesday following August 17, 2016 on which the access visit is scheduled for 4:00 to 7:00 p.m.; and f) The fourth unsupervised visit shall occur on the children’s access visit with the applicant on the weekend that immediately follows the third unsupervised visit.
3. Following the fourth unsupervised access visit with the applicant (i.e. pursuant to paragraph 2(f) above) the children shall be de-briefed by their counsellor, Dr. Sharon Francis Harrison (“Dr. Harrison”).
4. The applicant shall be responsible to arrange for the de-briefing of the children by Dr. Harrison and the de-briefing may occur by telephone or by Skype in the event in-person sessions are difficult to arrange.
5. The expenses for the de-briefing sessions between the children and Dr. Harrison shall be shared equally by the parties.
6. The parents shall each make arrangements with Dr. Leonoff for assistance with the transition from supervised to unsupervised access visits for the children with the applicant.
7. The respondent’s cross-motion for an order varying the access schedule set out in the September 23, 2013 order of Justice Laliberté is dismissed.

Costs

[83] The applicant has been successful on his motion and the respondent unsuccessful on her cross-motion. The applicant is entitled to his costs of both the motion and cross-motion. In the event the parties are unable to agree upon the scale and quantum of costs to be paid by the respondent to the applicant, 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) All submissions, case law, and other authorities shall be on single-sided pages; and e) Submissions shall be delivered in accordance with the following schedule: i) On behalf of the applicant – within 10 business days following the date of release of this endorsement; ii) On behalf of the respondent – within 20 business days following the date of release of this endorsement; and iii) Reply, if any, on behalf of the applicant – within 25 business days following the date of release of this endorsement.

Madam Justice Sylvia Corthorn Date: August 18, 2016