Court File and Parties

COURT FILE NO.: 35/38/014138/15 DATE: 20160913 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Steven Andrew Charles Miller, Applicant AND: Tracy Ann Miller, Respondent

BEFORE: Justice R. Raikes

COUNSEL: George McFadyen, for the Applicant John Kirby, for the Respondent

HEARD: September 8, 2016

Endorsement

[1] This decision concerns the interim residency of two children: Hayden, now 13, almost 14 years old, and his sister, Cadence, who is now 7 years old. The parents are unable to communicate with one another on even the most basic issues.

[2] When the parties separated, the respondent mother took the children from the matrimonial home where they resided and were being home-schooled by the applicant father.

[3] On February 19, 2015, I made two consent orders: first, requesting the involvement of the Office of the Children’s Lawyer (“OCL”) pursuant to s. 112 of Courts of Justice Act; and, an order that pending adjournment of an interim motion for custody, the applicant would have the children in his care for the weekend of February 20-23, 2015 and for a mid-week visit on February 26, 2015 after school.

[4] On March 5, 2015, Justice Garson ordered that the children reside with the applicant father subject to weekend access and a mid-week evening visit with the respondent mother.

[5] The OCL accepted the appointment and a report was prepared by Brian Flint dated September 9, 2015. That report was critical of the applicant in a number of ways but most notably, the author concluded that he was undermining the children’s relationship with their mother. He indicated that:

“…Although the family dynamics is one of Alienation, Hayden and Cadence are not yet alienated, however, they are in the precarious position of becoming alienated unless a significant change occurs.”

[6] On September 25, 2015, Justice Desotti heard a motion to change the residency of the children in light of the report of the OCL. In his reasons released October 5, 2015, Justice Desotti carefully considered the evidence before him including the OCL report which was acknowledged by him to be disputed by the applicant father. Nevertheless, he ordered the residency of the children be changed to that of the respondent mother. The father was given access on alternating weekends together with a mid-week evening access and an additional evening in the week he does not have weekend access.

[7] Justice Desotti also ordered that the parties both access counselling and/or educational services to help them better understand how their negative relationship impacts the children and their emotional well-being, and how to manage their relationship in a reasonable manner going forward. He directed that a copy of his order be forwarded to the Sarnia-Lambton Children’s Aid Society and that the parties be amenable to any services directed by the CAS as it pertains to meeting the needs of the children.

[8] On July 27, 2016, the applicant father brought the motion presently before me seeking, inter alia, interim joint custody of the children with primary residence of the children with him. He asserts through his counsel that he was “urged” to bring this motion by Laura Carter of the CAS. No affidavit was filed by Ms. Carter although excerpts of her notes and those of other CAS workers are appended as exhibits to Mr. Miller’s affidavit sworn July 26, 2016.

[9] Counsel for Mrs. Miller argues that I can place no weight on the suggestion that Ms. Carter urged the applicant to bring this motion because no affidavit was filed by Ms. Carter. Counsel for Mr. Miller suggests that that position is disingenuous because counsel well knows that it is the policy of the local CAS that they will not swear affidavits in a private proceeding between parents. I agree with respondent’s counsel.

[10] In his affidavit sworn July 26, 2016, Mr. Miller has attached various notes and summaries made by one or more workers at CAS and a counsellor at FCC in Sarnia. Those notes evidence the following:

a. Hayden wishes to live with his father; b. Hayden hates living with his mother; c. Hayden asserts that his mother has put him in a hammerlock on more than one occasion; d. Hayden asserts that his mother has slapped him or hit him; e. Hayden asserts that his mother pulled him by the leg off the coach when he refused to come to the table for dinner. That caused him to bump his head on the floor; f. Hayden asserts that his mother insults him and yells at him; and, g. Hayden asserts that his mother insists upon washing his hair while he is standing in the shower. He does not suggest that anything sexual occurs but that she is exceeding appropriate boundaries.

[11] The affidavit indicates that Hayden has run away from his mother’s home to be with his father with whom he has a very close relationship. He did this three days after Justice Desotti released his decision on October 5, 2016. He has threatened to do it again. Counsel for Mr. Miller suggests that a change is necessary to “relieve the pressure”.

[12] The respondent opposes the motion and brings her own motion seeking a further report by the OCL. The applicant agrees that a further report from the OCL should be done.

[13] I have carefully reviewed the evidence filed on the motions by both parties. I am not persuaded that a change in residency is either necessary or appropriate. If anything, I am concerned that:

a. Hayden continues to be encouraged by his father to speak negatively about his experiences with his mother and how he feels about living with her; b. the relationship between Hayden and his mother may have been poisoned by the applicant father such that it may be necessary to consider a reasonable period of time where Hayden will have no access with his father to give him a chance to re-establish his relationship with his mother.

[14] The photographs filed by the respondent evidence a happy, engaged young man who, when allowed to just enjoy the moment, does so. The evidence suggests that Hayden has had a more difficult time than Cadence adjusting to being in the public school system, to making new friends and to the breakdown of the relationship between the parents. It is not surprising that he might prefer to be with his father for whom Hayden has a measure of child-like hero worship.

[15] I note that CAS has taken no steps to protect the children from the mother nor do they seem likely to do so on the material before me.

[16] Counsel for the applicant emphasizes Hayden’s age; viz., that he is a teen whose wishes should be given serious consideration. Where, as here, there is a risk of past or ongoing alienation, the child’s wishes must be scrutinized more carefully and with an eye to the bigger relationship picture.

[17] In a recent decision, Justice Pazaratz emphasized the need to take a cautious approach to safeguard the best interests of the children and avoid manipulation of the process. He noted that “the status quo – and avoiding reckless creation of a new status quo- are important considerations at the interim custody stage: Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17.

[18] I observe that Hayden’s reaction and words to the CAS worker who attended the school about his hair being washed by the respondent is suggestive of a child who is privy to a plan to force a change. Likewise, I observe that on occasion, after first saying he hates being with his mother or feels afraid to be with her, he concedes that he did feel safe (see Ex. “G”). Further, Cadence clearly does not share his concerns nor does she corroborate his version events. I accept that there was an occasion where the respondent restrained Hayden in a hammerlock, a fact she admitted before the decision of Justice Desotti, but her explanation for that incident was plausible. Nevertheless, the children return to that incident almost by default to bolster Hayden’s wish to be with his dad.

[19] I see no measurable effort by the applicant to get counselling to improve communication with the applicant. I see nothing in the evidence that leads me to conclude that the father has taken seriously the concerns about alienation or the prospect of a relationship between the children and their mother. Simply put, the material before me does not convince me that a change in residency is warranted.

[20] I agree that a further report for the OCL is desirable. Frankly, I have some misgivings that it may well be that Hayden, and to a lesser extent, Cadence, are being manipulated by the applicant to force a change in residency. Such behaviour, if found to have occurred, is unconscionable and may have long-term implications not only for the children but for the applicant’s future custody of or access with the children.

[21] I do agree, however, that the respondent should not be washing her son’s hair when he is in the shower. He is of an age where he should be able to manage that task himself.

[22] The motion by the applicant is dismissed. I have granted the order requesting a further OCL report. I urge the parties to get counselling as recommended by Justice Desotti and to work at better communication to help their children through this difficult period of adjustment.

[23] If the parties cannot agree on costs, written submissions may be made within 15 days.

“Original signed by Justice R. Raikes” The Honourable Justice R. Raikes Date: September 13, 2016