Jiang v. Parham, 2016 ONSC 5283

CITATION: Jiang v. Parham, 2016 ONSC 5283

COURT FILE NO.: FC-08-73-2

DATE: 2016/08/19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

XinJan (Joan) Jiang

Applicant

– and –

Eric Parham

Respondent

Elisabeth Amy Sheppard, for the Applicant

Tanya Davies, for the Respondent

HEARD: August 10, 2016

Endorsement

OVERVIEW

[1] The parties are the parents of Jerica Jiang-Parham born August 4, 2005. The mother brings a motion to suspend the father’s access. The father seeks an order reinstating his access.

[2] On July 2, 2015, after an eleven day trial, Justice Sheffield granted the mother sole custody of the child. On the issue of access, the Court granted the father generous access to his child including access on the first three weekends of each month from Friday at 4 pm to Sunday at 4 pm, every Wednesday from 4 pm to 8 pm, March break, Christmas vacation, Father’s Day, summer vacation and the right to communicate with the child. The pickup and drop-off area for all access was at a Starbucks restaurant.

[3] Justice Sheffield made certain findings of fact that are relevant and instructive to the Court at this juncture. Regarding the conduct of the parties, he stated at paragraphs 2 and 3 of his oral reasons:

For most, if not all of her childhood, Jerica has been exposed to extreme levels of emotional unpleasantness caused by the outrageous, selfish and self-centred behaviour of her two parents. She has, on numerous and frequent occasions, been caught in the middle of her parents verbal and physical altercations. Jerica has been exposed to toxic parental disputes of such a high level of conflict that police have been required to assist and restore order within the family, both at home and in the community. Regrettably, the involvement of this resource has occurred with alarming regularity.

To say that this is a high conflict case is truly an understatement. The mother and father have little, if any, insight into the detrimental impact that their conflict has had on their child.

[4] During the trial, the assessor, Dr. Weinberger, a psychologist, recommended that the father have access but under restricted and even supervised conditions. Justice Sheffield stated at paragraph 27:

At trial, however, Dr. Weinberger suggested that the access recommendations outlined in his July 30th, 2013 report could be varied to allow for continued access to the father, but under restricted or perhaps even supervised conditions. When questioned about whether an order of no access might be consistent with Jerica’s best interests, given the animosity between the parents, he explained that because the child loved and was closely bonded with each parent such a decision and order might have a devastating effect on Jerica. It was his considered opinion that the child’s best interests would be more appropriately and effectively served by a significant restriction in the father’s access or the supervision of his access in order to ensure the child is protected from involvement in the family litigation and disputes. Dr. Weinberger was aware of the degree to which Mr. Parham had drawn the child into both the parental conflict and litigation. He noted that the numerous text messages Jerica had received from Mr. Parham. The context of these notes made it clear that the child was being fully apprised to the acrimony that existed in the parental dispute. He opined that texts were “highly inappropriate”. He suggested that the child should be protected from this kind of involvement and should not be called upon to make adult decisions.

[5] Before granting the father access, Justice Sheffield stated at paragraph 53 of his reasons:

Over many anxious hours I have ruminated about how much access Jerica’s father should have to her in light of the evidence. He has relied on the child to make adult decisions that are stressful, inappropriate and, in my respectful view, not in her best interests. He has displayed an inability to refrain from insulting the child’s mother in front of her and has conflict with the school and medical authorities that Jerica is supposed to be free to trust and to rely upon. These behaviours are childish. They are selfish and display a dependence on the child that has forced her to take an inappropriate and emotionally complex parenting role. Mr. Parham, enough is enough. As the Court has heard, your child requires your stability now more than ever. She needs to be able to have a stable, positive relationship with all the adults and professionals in her life, whether you agree with them or not without you undermining their credibility or bringing conflict into spaces where she is meant to grow and feel protected. It is now time for you to behave like the adult in Jerica’s life and to be more consistent with her best interests.

[6] Justice Sheffield cautioned the father that his access may be varied unless he changed his behaviour at paragraph 59 of his reasons:

Mr. Parham, I wish to express to you that I gave very serious consideration to an order of no access. If it were not for the comments of Dr. Weinberger, I would have perhaps, in all of the circumstances of this case, ultimately arrived at that conclusion. If you continue to behave as you have in the past, the next time you are before the Court, however, it may very well result in a different order.

[7] Despite the strong language of the trial judge, slightly over six months after the trial decision, on January 15, 2016, the father assaulted the mother in front of the child. The father was charged and his original bail conditions provided that he would not have any direct or indirect contact with the mother. On March 16, 2016, these conditions were varied allowing counsel to communicate for the purposes of access. The father has pled not guilty to the charges in the criminal proceeding which may not be adjudicated until 2017 or even 2018.

Court proceedings

[8] In April 2016, counsel for the father, by two separate letters, requested access to the child. The mother did not respond to these requests. In April 2016, the mother commenced a motion to change seeking to terminate access to the father.

[9] The parties attended a case conference on July 5, 2016 at which time the Master issued the following order :

Granted the parties leave to bring a motion on the issues of access and the appointment of the Office of the Children’s Lawyer to be heard no later than August 15, 2016.
The respondent may bring a motion in the ordinary course for an order permitting her to obtain a passport and to travel with the child.
On consent of the parties, and subject to the consent of the Ottawa Children’s Aid Society, all records relating to Jerica Jiang-Parham born August 4, 2005, shall be made available to the parties for review and copy.
Following the motion, the matter should be set down for a Settlement Conference.
Costs of today shall be reserved to the motions judge.

[10] The mother seeks the following relief:

An interim order suspending the applicant’s access, unless it is supervised in a professional setting.
An order denying that the child has to participate in unsupervised access with the applicant.
The issue of access to the father will be adjourned either to a Settlement Conference or a further motion following the recommendations of the OCL, CAS and the Applicant’s resolution of criminal proceedings. In the meantime, the child and the father shall be free to communicate by telephone, email and text as long as the child consents to do so and said communication does not involve the Applicant speaking negatively about the Respondent mother.
The Office of the Children’s Lawyer and the CAS shall, if they agree to act, provide the court with an update as to the wishes and best interests of the child in relation to access and any other issues of importance.
Costs.
As such further and other relief as to this honourable Court seems just.

[11] In his affidavit dated July 25, 2016, the father seeks an order that paragraph 7(l) of the final order of Justice Sheffield be amended to have the pickup and drop-off are all access visitations at the FSO Centre in Ottawa and that while in Ottawa for his parenting time, that he shall parent the child and reside at the home of Ms. Steele and Mr. O’Connor at 601 O’Connor Street, Ottawa.

[12] However, in the father’s Notice of Motion dated August 3, 2016, the father seeks the following order:

An order declaring that the final order of Justice Sheffield dated July 2, 2015 shall continue to be in full force and effect with the following amendments:

a) paragraph 7(1) shall be amended to the following:

i) During summer vacation: Jerica shall be dropped off at the Steele/O’Connor residence at 601 O’Connor on the first three Fridays of the month at 4 PM and will be picked up at the Steele/O’Connor residence at 601 O’Connor 9 AM on Monday. The applicant shall not be present at the door during said exchanges. She shall be present inside the house. The respondent shall wait on the sidewalk until the child waives at the door.

ii) During the regular school year: Jerica shall walk over to the Steele/O’Connor residence(two blocks from school) at 601 O’Connor Street right after school on the first three Fridays of the month and return to school on Monday morning.

b) While in Ottawa for his parenting time, the applicant shall reside at the Steele/O’Connor residence situated at 601 O’Connor Street.

c) Para 7(b) shall be deleted.

An order that the respondent pay costs.

Mother’s position

[13] The mother’s affidavit recounts the extensive litigation in this matter. The parties married on April 3, 2004, had their child born August 4, 2005 and separated November 2006. They were divorced on April 3, 2009.

[14] The mother alleges that the father has embarked on a course of conduct to harass her and threaten her. She identifies incidents of dysfunctional behaviour by the father.

[15] After the decision of Justice Sheffield, the father was granted access on weekdays and on Wednesdays as well as holidays. On July 2, 2015 the father filed a notice of change in representation changing his address from Ottawa, Ontario to Norwood, New York. Very soon thereafter, the father gave up his access rights on Wednesdays. The mother refused a request to allow an unknown person to pick the child up and soon gave up his weekend access. The mother recounts the father has a history of being unstable and has randomly showed up at her property without permission. Further she indicates that he harassed her to such an extent that the Ottawa Police Service were required to mediate a request for summer access.

[16] The father has disregarded court orders such as when he showed up in November 2015 at the child’s school despite an order that he is not permitted to do so.

[17] The situation escalated when in January 15, 2016, the father physically assaulted the mother at the after school care facility in the presence of the daughter and thirty other children. The mother suffered a concussion.

[18] The father was charged with assaulting the mother and one of the conditions of his judicial release was that that he was not to contact directly or indirectly the mother and three other individuals.

[19] The Children’s Aid Society became involved in this matter after the assault. By letter dated April 8, 2016, the Society advised that they have closed their file because the mother is taking appropriate steps to insulate the child from the domestic violence and emotional trauma.

[20] The child started to see a psychotherapist as of June 8, 2016. This therapist has not met with the father but has met with the child on four separate occasions and recommends that the child requires the assistance of a child psychologist to deal with the conflict between the parents and the fears exhibited by the child.

[21] The mother also provides copies of emails exchange between the father and the child where he makes inappropriate comments about the mother to the child such as where he places the blame on him not seeing his daughter on the mother. The inappropriate conduct that Justice Sheffield was concerned about at the trial continues.

[22] The mother is not prepared to agree to anything other than supervised access through a professional organization such as through a supervised access program. The mother contacted the Separation Divorce Research Centre in Ottawa who provides that service.

[23] The mother is not prepared to agree to the supervisors proposed by the father because they are unaware of the actions conducted by the father, the concerns raised by Dr. Weinberger and Justice Sheffield.

Father’s Position

[24] The father alleges that the mother has been in continuous breach of the final order of Justice Sheffield regarding access and failing to provide information regarding the child.

[25] The father complains that it was the mother who unilaterally changed the conditions for access. He has primarily resided since late 2013 in the United States and has been driving to Ottawa, Ontario to exercise access. He maintained an apartment in Ottawa in order to parent the child. He attended the University Ottawa in late 2014 to qualify for admission to the Ontario bar. He stopped access on Wednesday’s because he accepted contract work in New York City which rendered the exercise of access on Wednesdays as being impractical due to the distance.

[26] He indicates he has a large support system and many friends in Ottawa who would be able to pick up the child. These people have children in the same school and after school program. He alleges that the mother has frustrated his efforts to be a parent or to have any communication with the child.

[27] The father is a lawyer in the United States and is seeking to be called to the Ontario bar. He denies the allegations raised by the mother. However, his call to the Bar may be delayed pending the disposition of the criminal charges.

[28] With respect to the incident of January 15, 2016 he indicates is unable to elaborate on the incident at this time but is defending the charges and believes the truth will be established once the evidence is tested in court.

[29] He alleges that the mother has denied him access, frustrated his attempts to develop a relationship with his child and embarked on a course of conduct to alienate the child from him. The father made similar allegations before Justice Sheffield during his 11 day trial.

[30] Despite the mother allegedly breaching the court order from the start, there is no evidence that the father commenced any proceedings to deal with the mother’s breaches. Had it not been for the criminal charges laid on January 15, 2016, the situation may have continued.

[31] The father’s plan is that when he is in Ottawa to parent his child, he will stay at the home of Marina Steele and Samuel O’Connor’s home. Both of these individuals have filed affidavits attesting to their friendship with the father, the positive interaction that they have personally observed between the father and the daughter, that the father is extremely patient, that there is no evidence of the father losing his temper with the child and indicating that they have a spare room in their home for the father to stay when he is in Ottawa. With respect to the daughter, she and Mrs. Steele and Mr. O’Connor’s daughter share a bedroom.

[32] The father has provided a series of affidavits from friends, colleagues and co-workers. Some of the affidavits deal with incidents that occurred prior to the trial in 2016. Some of the affidavits appear to be character references for the father confirming his close relationship with his daughter and the lack of any signs of domestic violence between the parties.

[33] The father indicates he is now completing a 12 hour course on high conflict co-parenting and another 12 hour course on positive parenting. He is also working with a therapist who has diagnosed him as having a mild adjustment disorder and situational depression.

[34] Based on all of these factors, the father proposes that he parents his daughter while residing at the Steele/O’Connor residence. He requests that the child be dropped off during the summer at the Steele/O’Connor residence on the first three Fridays of the month at 4 pm and picked up on the following Monday at 9 am. During the regular school year, he requests that the child walk over to the Steele/O’Connor residence right after school on the first three Fridays of the month and she shall be returned on Monday mornings.

Analysis

[35] During the trial, Justice Sheffield considered the recommendations of Dr. Weinberger that it may be in the child’s best interests to a significant reduction in the father’s access or the supervision of his access in order to ensure the child is protected from becoming involved in the family litigation and disputes.

[36] Justice Sheffield found that the father sent highly improper text messages to his daughter. He agreed with the assessor that unless the ongoing battle ends, the child would likely grow into adulthood without the benefit of joyful and a stress-free childhood. Justice Sheffield found the fault rested substantially on the shoulders of the father.

[37] Despite those findings, Justice Sheffield found that both parents had a meaningful relationship with their child.

[38] The Court finds that the concerns raised by Justice Sheffield on July 2, 2015 have not gone away. Despite an order granting the father significant and generous access, immediately after the trial, he did not exercise access on Wednesdays and on weekends.

[39] The stress between the parties increased culminating in the incident that gave rise to criminal charges on January 15, 2016. The incident took place in front of the child.

[40] The Office of the Children’s Lawyer (“OCL”) has been appointed but has not indicated whether they will become involved in this litigation. If the OCL becomes involved, the Court would benefit from the information and views provided. At this juncture, the Court makes this Order on an interim and without prejudice basis.

[41] The Court finds that the child’s best interest require that the father have supervised access to this child. The father in his own material anticipated that supervision was a possible outcome of this motion. Despite the father being charged with criminal assault in January 2016, he has made no effort to complete the required intake information for any supervised access program in the city of Ottawa. The mother has. The father should have made such applications.

[42] The Court has reviewed the assessment of Dr. Weinberger and the reasons for judgment of Justice Sheffield. This matter is a complex case based on the high levels of enduring conflict between the parties. Justice Sheffield found that the father has displayed an inability to listen or accept the opinion of others and reluctantly accepts anyone’s authority, that there was a real and substantial likelihood that the father developed an unhealthy emotional dependence on his relationship with his child and that he was not fulfilling the normal parent-child relationship and instead allowed his own needs to take precedence over the needs of his daughter.

[43] Despite the significant and generous access afforded to the father, he did not exercise it. If the mother interfered with the access as described by the father, he had legal options to enforce his rights. There is no evidence he pursued those options.

[44] Considering the psychological issues raised by Dr. Weinberger and acknowledged by Justice Sheffield, the Court is not satisfied that the best interests of the child would occur with the father having the child at his friend’s home in Ottawa. While the Court does not doubt the bona fides of Ms. Steele and Mr. O’Connor, the best interests of the child require her to be protected and insulated in a setting with professionals who were trained in high conflict custody matters.

Disposition

[45] After considering all the factors this court orders :

a. the father’s access rights set out in paragraph seven of the final order of Justice Sheffield dated July 2, 2015 are hereby suspended pending further order of this Court.

b. on an interim without prejudice basis, the father shall have access to the child every second Saturday and every second Sunday for two hours with said access to be supervised at the supervised access centre of the Family Services of Ottawa or at the Separation and Divorce Research Centre or as the parties may agree; and

c. the father shall be responsible for the costs for such supervision.

d. This order may be reviewed after the OCL, if they become involved, can provide further information to the Court as to the best interest of the child.

[46] On the issue of costs, if the parties are unable to settle the issue of costs, this Court orders that the mother provide her written costs submissions, not to exceed two pages plus any offers to settle and a bill of costs, no later than September 2, 2016. The father shall have the right to file his written cost submissions not to exceed two pages plus any offers to settle and bill of costs no later than September 16, 2016.

Shelston J.

Released: August 19, 2016