Court File and Parties
Citation: McGrath v. Sheppard, 2016 ONSC 8062 Oshawa Court File No.: FC-08-1026-00 Date: 2016-12-21
Ontario Superior Court of Justice Family Court
Between:
Elke Joan Watts (a.k.a. McGrath) Applicant
– and –
Adrian Wells Sheppard Respondent
Counsel: Unrepresented [for the Applicant] S. Gibb, for the Respondent
Heard: December 15, 2016
Ruling
1The Respondent father, Adrian Wells Sheppard, has brought this motion to continue the terms of the access suspension and restraining orders against the Applicant mother, Elke Joan Watts (aka McGrath). The Applicant mother filed materials in response to this motion and attended before the court by way of teleconference. She has not filed her own motion seeking access or any other relief.
2Following a motion brought by the Respondent father, I granted an order to temporarily suspend all access between the Applicant mother and children on April 21, 2016. I also restrained the mother from having any direct or indirect communication with the children.
3On July 25, 2016, Rowsell J. granted a 14B motion brought by the Respondent father for an expansion of the terms of the restraining order to include the Applicant mother's new husband (Peter) and other extended family members. Evidence filed in support of the motion showed that the mother's extended family members continued to communicate with the children ostensibly on behalf of the mother and in a manner that mirrored the past inappropriate communication from the mother.
4Below are examples of communication by the mother’s new husband:
(a) Dwelling on how upset Elke was by the restraining order (“She’s in bed, she is very sad”);
(b) Talking to Ian about court proceedings in direct contravention of the orders in place (“Mum has a letter saying she isn’t allowed to talk to you on skype or any way”);
(c) Telling Ian that anyone who told him the orders mean he was not permitted to speak with Peter and Jack (Elke and Peter’s son) was “lying”, and making other statements to instill a sense of mistrust in the children for Adrian and their counsellors (who were permitted to talk to them about the orders).
(d) Saying to Ian, with respect to his gender identity, “I can see why you couldn’t want to be [a female]… especially when females you love have been so badly treated”;
(e) Diverging from a discussion about Finn’s excitement to go on a camping trip in Ontario to say “OK. I have to say this; I haven’t seen you for two years and miss you terribly. You’ll always be my number 1 son, I think aout [sic] you every day, talk about you everyday and there will always be a home here for you, OK?”
Background
5The following factual background is derived from my April 21, 2016 ruling:
i. The father and mother began cohabiting in 1987, married in 2001, and separated in 2007. Their relationship lasted for more than 20 years. Their two children, Ruby and Finn, were born as a result of the relationship. In 2009 the mother and father participated in a two week trial. The main issue was mobility. The mother planned to move from Pickering Ontario to rural England to pursue an Internet relationship. She sought permission from the court to have the children, ages six and five at the time, move with her. To that point the children had lived their entire life in Canada. Apart from a few short visits to England, they have continued to reside in Canada to this day.
ii. At trial, Rowsell J. determined that it was in the children’s best interest to live primarily with the father in Ontario. After trial the mother elected to move to England without the children. The final order provided that the mother would have access with the children in both Ontario and England and provided that the parents would share joint custody of the children.
iii. The orders made in response to this motion are based upon the facts outlined below as asserted by the father, not opposed by the mother and accepted by the court.
iv. The mother was clearly disappointed with the final order and since 2009 has gone to great lengths to undermine all aspects of it. She has refused to pay or even acknowledge the cost orders against her resulting from the trial and subsequent court proceedings. She has made a concerted effort to denigrate and undermine the father’s authority and the lives of the children in Ontario. She has attempted to strongly influence the children to move permanently to England constantly referring to England as their real home. She criticizes everything from the weather to the food to the children’s school in Ontario. She describes their town in Ontario as being awful and built-up notwithstanding that the children live in a clean, safe and attractive home with a lot of green space. She speaks in poetic terms about her life in England describing her rural setting as idyllic and her forever home. She tells the children that England is their forever home.
v. The father has gone to great lengths to provide the mother with meaningful and extensive updates with regard to the lives of the children. In response the mother has made it quite clear that she has no intention of reading any correspondence from the father. In speaking to the children she refers to the father as “Darth Vader”, an evil father.
vi. The mother has engaged in excessive communication with the children. Dozens of text messages have been at times sent to the children daily and constant requests that they call her. The children have a perpetual sense of obligation to be in communication with their mother. Notwithstanding the fact that the mother chose to move to England she has argued repeatedly that the father and the courts have prevented the children from living their real lives with her.
vii. At the end of court ordered access visits, whether in England or Ontario, the mother was not supportive of the children’s transitions back into the care of their father. Rather, she would emphasize the sadness of these events and burden the children with her own grief over separation.
viii. In August 2014, at the end of a summer access visit the mother went so far as to refuse to return Finn to Ontario. Several prior communications from the mother indicated that this scheme was planned and deliberate. She had suggested to the father that the children wanted to move to England and had encouraged Ruby to consider the move when she turned 12 years old and could make the decision for herself. Ruby asserted herself enough to convince her mother she did not wish to move to England at that time. In response, the mother insisted that the children be separated and only Finn stay with her in England, notwithstanding her full knowledge of how close the children were with each other being only 18 months apart in age.
ix. During the August 2014 summer visit Finn called his father to inform him that he wished to stay in England. The mother could be heard coaching and manipulating Finn in the background. Finn told his father that he trusted his mother more than he trusted him. It was evident that the mother supported the call and in no way was encouraging the child to return to Ontario. The mother placed the child in the middle of an adult situation and manipulated him.
x. When the father attended at the Manchester airport on August 19, 2014 to pick up the children, the mother was two hours late. She told Finn it was his choice whether he left with his father or stayed in England. The father had to commence a Hague proceeding to force the mother to comply with the existing custody order. During the two months the child remained in England pending the Hague hearing, the mother enrolled Finn in school in England without consulting with the father or receiving his consent. She also intentionally frustrated the father’s attempts to communicate with Finn during that time. For the purpose of the Hague hearing, Finn was interviewed by an independent agent who advised that the child was not opposed to returning to Ontario. Although the mother eventually entered into a consent order for the return of the child to Ontario, she told Ruby that Finn was very upset and physically ill about having to return and that she still believed both children should reside with her in England.
xi. After Finn returned to Ontario the mother embarked upon a campaign to make him feel guilty and responsible for the great sadness she and her new husband now felt. She blamed the father for standing in the way of Finn returning to his “home” in England. Some of the text messages she sent to Finn included the following:
“The house is stupid and empty and sad without you”
“We miss you too, horribly. I’ve been bawling all day”
“Why isn’t he [the father] trying to comfort you?”
“I don’t want you getting in any more trouble today with Dad ☹ ☹”
“I realised you weren’t in the little bed and felt sick”
“You need to make your dad understand”
“Your dad knows I will come and get you anytime, at any moment, the instant he agrees”
“As he [the father] won’t agree it continues to be a big long slow horrible thing with lawyers”
“I thought Matthew was going to faint when I told him you were back in Canada. He’s really upset. So is Duncan” [friends of Finn’s]
“I feel like the Bad News Fairy”
the mother: “Ruby must be happy you’re there at least!” / Finn: “She’s mad at dad” / the mother: “I bet”
xii. For the next four months after Finn’s return to Ontario the mother sent more than 2,000 iMessages to Finn. Notwithstanding the pressure placed on Finn by his mother he quickly settled back in his life in Ontario resuming all previous friendships, sports and extracurricular activities.
xiii. As a result of the mother refusing to return Finn following the access visit in England, the father commenced a motion to change, claiming that access visits should be restricted to Ontario. The mother completely ignored all efforts to resolve the issues raised by the father and continuously engaged in communication with the children directly encouraging them to become excited about travelling “home” to England. The father brought a motion regarding summer access on July 9, 2015. Hughes J. ordered that the children’s primary residence would remain with the father in Ontario and that the children would not travel to England for any further access. The order provided the mother with access with the children in Ontario during the months of August and September in lieu of summer access in England. The order also provided that a professional supervisor was to be hired to supervise access exchanges between the mother and the father. Additionally, the order provided that the mother was prohibited from removing the children from Ontario, and the terms of the order were to be enforced by the police. Both parents were also restrained from making any negative comments to the children about the other and from communicating with the children in any way about the court proceedings. Hughes J. commented that the failure to comply with the terms about making negative comments to the children regarding the other parent, or the other’s family members, and speaking to the children regarding court proceedings could be construed by the court as “child abuse”.
xiv. Although her court order applied mutually to the mother and father, Hughes J. in her endorsement dated August 4, 2015 clearly established that she had grave concerns regarding the mother. She included the following in her endorsement, at paras. 2, 3, 4, 5:
I am not satisfied that the Applicant Mother has acquired any insight into the role her conduct played in the traumatic events of last summer which ultimately led to the Respondent Father having to commence proceedings in the United Kingdom under the Hague Convention on the Civil Aspects of International Child Abduction.
Permitting Finn [to decide he could remain in England] calls into question the parenting capacity of Applicant Mother, and her ability to facilitate the child’s relationship with his father.
As a result of the Applicant Mother’s lack of insight, I find it probable that the same scenario [over-holding] will unfold if the children are permitted to travel to England to visit with their mother this summer….
I find that the events of last summer which led to Finn staying in England (temporarily) were traumatic for the children and that it is not in their best interest they repeat that experience.
xv. At the August 27, 2015 settlement conference Hatton J. made an order continuing the terms of Hughes J.’s temporary order dated August 4, 2015 with respect to access. In response to the father's complaint that the mother was engaged in constant and invasive messaging and calling with the children every day and often multiple times a day, Hatton J. ordered that communication would be limited to three one-hour blocks of time per week. She also ordered that the mother be required to pay the costs outstanding to the father from the original 2009 trial before being able to proceed with her motion to change. She also ordered that the mother be required to post security for costs in the motion to change in the amount of $50,000 before being able to proceed in any way other than participation in settlement conferences. Hatton J. made the following further temporary orders on October 28, 2015:
a) The primary residence of the children would continue to be with the father until further order.
b) The mother and the father would continue to have joint custody of the children, and in the event of a disagreement, the father’s decision would prevail.
c) The mother’s consent for the children to be vaccinated would be dispensed with (the mother refused to consent to vaccinations).
d) The mother would have specified parenting time with the children in Ontario during March Break, summer, Christmas in alternating years, and an additional annual one week visit in Ontario.
e) The mother’s communications with the children, other than when she is exercising access, would be limited to three one-hour blocks per week.
f) The father would have specified communication with the children during their parenting time with the mother.
g) The mother would be responsible for retaining the services of Bleau & Associates to supervise exchanges of the children between the parties for the purposes of access visits and that the parties would share of costs of Bleau & Associates equally.
h) Subject to the specified three hours of communication with the children per week, the mother is not to initiate contact with the children while they are in the father’s care.
i) Both parties are restrained from making negative comments to the children regarding the other parent, or the other’s family members, or other aspects of the children’s life in either Canada or the United Kingdom and the parents are prohibited from communicating with the children regarding the court proceeding. Failure to abide by these terms of the Order may be construed by the court as child abuse.
j) The mother is restrained from removing the children from Ontario.
xvi. Since the date of this order the mother has not posted security for costs and she has not paid any of the outstanding costs owing to the father pursuant to various orders.
xvii. More concerning, however, is the fact that the mother has violated several other court orders regarding communication with the children resulting in serious consequences for the children. Notwithstanding the orders to the contrary, the mother continued to make negative comments to the children regarding the father and made no effort to help them accept the fact that access in England would not be happening. Her relentless commitment to the position that the children should be residing with her in England, blinded her from what was in the children’s day-to-day best interest. She continued to tease the children with the vision and fantasies of living in England and defied the three one-hour times slotted for communication. She messaged the children in online games and on Skype and through iMessage in contravention of the order of Hatton J.
xviii. Although the mother was given the opportunity to have access in Ontario during the summer of 2015, she chose not to exercise that option. Instead she started a campaign of guilt and shame. She told the children that her summer was horrible because they did not visit with her, she scolded Ruby for participating in a big sisters mentoring program at school saying that such programs were only for children without mothers, and gave the children the clear impression that it was the father who was preventing them from communicating with her.
xix. In November 2015 the mother announced to the children, without notice to the father, that she would be visiting with them over Christmas in Ontario. She complained to them that such a visit would be very burdensome to her because of the expense of travel. She suggested it was the father’s fault. She refused to provide any details of her visit until the very last minute. At the end of the visit the children were very confrontational with the father and distraught that he was refusing to let them live in England. In the months leading up to Christmas the children had said very little about wanting to live in England. Clearly the unsupervised contact with the mother created false expectations in their minds once again. In fact Ruby stated categorically that she had a plan to make sure she would get to move to England to live with her mother. She told her father that she was going to refuse to go to school and if necessary she would call the police and would refuse to go places with the father.
xx. Ruby is working on executing this plan. She has been refusing to attend school regularly and the father has been advised that she is in jeopardy of losing her grade 8 year. Prior to Christmas she was always an enthusiastic student and eagerly looking forward to attending high school next year. An affidavit was filed with the court sworn by Rhonda, the mother of Ruby’s best friend. In that affidavit, Rhonda indicates that Ruby has told her best friend that Ruby and her mother concocted this plan ultimately to result in Ruby attending high school in England. The children’s nanny has overheard Ruby telling her mother during calls that she is not going to school. The mother’s response has been to laugh and to tell Ruby, “keep it up”.
xxi. Ruby continues to talk to her father about the court process, accuses him of fighting for sole custody and trying to prevent the children from seeing their mother. She has repeatedly threatened to call Kids Help Phone saying that she would be allowed to move to England if she called. Since the Christmas visit, Ruby has become very critical of life in Ontario.
xxii. The father has seen text messages from the mother in which the mother encourages Ruby to call Kids Help Phone to complain about the father. The mother warns Ruby not to tell anyone they are exchanging messages.
xxiii. Ruby has recently identified herself as gender neutral. The mother has sent text messages to Ruby telling her that the father would be very angry if Ruby “came out” to him. The father has been aware of Ruby’s self-identity for some time and is being supportive. The mother is clearly trying to undermine the father’s unconditional love for Ruby. The mother has also encouraged Ruby to change her last name from her father’s name to that of the mother’s new husband. The mother has encouraged Ruby to think of the stepfather as her “real dad” and refer to the father as her “bio dad”.
xxiv. Although Finn was the target of the mother’s attention when she refused to return him from England in 2014, he does not appear to be part of the new plan focused on Ruby. The mother appears to choose to manipulate the child most vulnerable at any particular time. She appears unconcerned about the prospect of separating the two children.
xx5. Emotionally, the children are turbulent. They can be happy and affectionate with the father some days and angry and upset with him other days. The mother continues to denigrate life in Canada to the children. It is apparent to the court that the mother’s actions are a significant contributing factor to this turbulence. Shockingly, the mother has also frustrated the father’s efforts to obtain counselling for the children.
xxvi. The father complies with the court orders to avoid discussing the court proceedings with the children. The mother does not. As such, the children have been placed in the impossible position of being exposed to the mother’s poisonous influences without their father being able to neutralize the situation. Therefore the children see the father as withholding information from them or, worse, lying to them.
xxvii. The father argues that the only way to bring some stability into the lives of the children is to suspend the mother’s access altogether and obtain meaningful counselling for the children. I agree.
6In the April 21, 2016 order, I made the following findings:
i. The mother’s conduct clearly has become extreme and unusual. She has become obsessed with disrupting the lives of the children with their father in Canada, in order to pursue her own interests. She has no regard for the negative impact that this obsession is having on the children. She has created circumstances of danger to the wellbeing of the children.
ii. The mother has demonstrated that she is unable to act as a parent or to provide the children with guidance and education and the necessaries of life. On the contrary she is willing to sabotage the mental health and emotional well-being of the children in an effort to accomplish her future goal of having them reside with her in England. She caused emotional turmoil in Finn’s life in 2014 when she retained him in England following her access visit. She is currently emotionally abusing Ruby by engaging her in the clandestine plan to break down her relationships and life in Canada such that no option exists but to move to England.
iii. …the mother’s actions demonstrate a total lack of judgment and an attempt to influence the children against the people they most care about. The mother’s actions have caused much anxiety for the children and at times they have become consumed with attempting to meet the needs and happiness of the mother. The mother and her partner constantly communicate their sadness that the children are not “home” with them in England. It is important to remember at this point in time that Ruby and Finn never resided with the mother in England. The mother moved to England from Ontario to follow a romantic Internet interest after the mobility trial in 2009. By her actions the mother has created an untenable position for the children.
iv. In my view the mother’s incessant badgering of the children has destabilized the children.
v. Her conduct of continually denigrating the father and the lives of the children here in Ontario and her discussion with them of the court proceedings are abusive. Modifications of the access orders to date have not abated her conduct. Her own fantasy of bringing the children “home” to live with her on the other side of the ocean, where she went to pursue a romantic relationship (when her children were only five and six years old,) has blinded her to this abusive behaviour and the children’s best interest.
Update on the Children
7After the order suspending all communication between the mother and the children and the further order that the restraining order also apply to the mother’s husband and extended family members, the children have thrived in the care of their father.
8The following update was included in the Respondent father's factum:
As the end of 2015/2016 school year approached, both children were enthusiastic about their plans for the following fall (including plans with their Scout group and Ian’s starting of high school). This was a sharp contrast to the end of previous school years, when the children were getting ready for extended visits with Elke; normally this was a time when the children would ramp up their criticisms of life in Canada with Elke’s encouragement, talking about things in Canada being “bad” and wanting instead to live with their mother.
The children had a very happy summer, which included a “graduation trip” to Montreal for Ian (who ultimately did successfully complete his school year), an Algonquin park camping trip with Scouts, a week holiday in Ottawa with Elke’s sister (to whom they and Adrian are close but from whom Elke is estranged), and a week-long trip in Ottawa, Montreal and Kingston with Adrian.
Ian “came out” to Adrian about his gender identity in July 2016 during their family holiday. Adrian told Ian he loves Ian for exactly who he is and accepts Ian for who he is. Adrian is proud of Ian for being the person he wants to be. Since then, Ian has also come out at school and has received overwhelming support and acceptance from his teachers and peers. Adrian met with Ian’s school principal on the first day of school to advocate for Ian and ensure he receives the treatment and respect he deserves at school. At school, Ian goes by the name “Florian”.
Both children are performing well in their current school years and are committed to their academic success. Ian is set on making the Honour Roll. The first day of school was a happy one (an event that historically Elke has “sabotaged”). Both children are diligent about their school work and are showing more maturity around taking responsibility for their work (this is particularly note worthy in Finn’s case). Both children are involved in a number of extra-curricular activities (lots of sports for Finn, choir and Gay-Straight Alliance club for Ian) and in Scouts. Ian has been talking about post-secondary education and has been mapping out the steps to get into the art programs that interest him. Ian is now pursuing his own dreams, rather than just obsessing about Elke’s dreams of having the children move to England.
The severe emotional responses that the children historically displayed around their contact with Elke and the emotional outbursts that escalated after their access with her at Christmas 2015 have subsided.
Both children began seeing counsellors in accordance with the Order of Justice Nicholson in May, 2016. Though the appointments can be difficult to schedule because of the family’s busy lives and schedules, the children have seen the counsellors on a relatively regular basis. Finn has a female counsellor, Debbie Salsbury, and Ian sees Debbie’s male associate, Gary Brooks. Both children have formed positive relationships with their counsellors. The counsellors were asked to prepare a report for this motion in accordance with the Order of Justice Nicholson, but declined to do so on the basis that it would violate their obligations of confidentiality to the children and might jeopardize the children’s confidence of them if they were to learn their discussions had been disclosed to the Court. Adrian is pleased that the children have faith and trust in their counsellors and is weary of jeopardizing those relationships, which have been positive for the children.
9In addition, the school reports filed by the father indicated that both children have stabilized significantly. In particular, Ian has flourished. He has progressed from a student whose refusal to attend school regularly jeopardized his academic success, to an eager, motivated and focused student who is both socially and academically active.
10The Respondent father has regularly provided informative and respectful email updates to the Applicant mother regarding the progress of the children.
Response of the Mother
11Unfortunately the response of the mother to the progress made by the children continues to reflect an inability to prioritize their needs.
12The mother openly acknowledges that she refuses to open emails from the father regarding updates on the children. She has argued that the email address, used by both the father and counsel for the purpose of service, was no longer in use. However the father has filed evidence confirming that the email address was an active account. In any event, the mother had the benefit of service of the father’s motion materials which provided extensive updates regarding the children.
13In response, she did not make one positive comment regarding the children's progress. She has made no effort to pay any outstanding costs orders against her or any of the child support that was ordered by me in April 2016. The failure to fulfill the requirements of these court orders reflects a lack of appreciation for the needs of the children. She disclosed to the children that she and her husband were renovating their home in England. Clearly they had money to spend on themselves and no money was sent for the benefit of the children. Again, this suggests an inability or unwillingness to prioritize the children’s needs.
14In her brief affidavit filed in response to this motion, the mother focused on the history of her relationship with the father. For example, she states that “for almost 10 years now, Adrian [The respondent father] has wasted the courts time, and hours, with protracted and unnecessary litigation, the purpose of which is to bully, harass, intimidate and punish me for daring to leave him.”
15She focused on the impact of these proceedings on her and her new husband and failed to address any factors regarding the best interests of the children. The final paragraph of her affidavit states:
The grief, terror, anguish and psychological trauma of losing contact with the children we love, missing birthdays, graduations, the beginning of high school etc. has devastated us and had negative effects on our health. It has left little Jack [her Young child with her new husband since moving to England] sad, confused and heartbroken that the siblings he worships have stopped calling and didn't come home for the summer. I'm asking the court to restore normal family life to what was a very happy family.
Analysis
16Once again the test to be applied to the request made by the Respondent father to further extend the suspension of access and restraining order is whether such an order is in the best interests of the children. Section 24(2)(d)(e)(f)(g) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 offers the following guidelines for interpreting “best interests of the child”:
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent.
17I have considered whether the Applicant mother is able and willing to provide the children with guidance, education and the necessaries of life and also meet any special needs of the children. She continues to demonstrate an inability to see past her own needs. This is particularly evident in her treatment of Ian's coming out. The evidence filed at the April 2016 motion included text messages from the mother discouraging Ruby (as he then identified himself) from coming out to the father for fear that the father would be upset. She suggested that she would be supportive but the father would not. In her submissions for this motion, the mother insisted on referring to the child as Ruby. She said that she saw the child for only 18 days in 2016. She said that she always saw Ruby as a “girly girl” and needs to understand what has gone on. She refused to accept the child's gender neutrality on the word of the Respondent father alone.
18Although the court generally understands the inability of family litigants to trust the word of the other party, this mother was fully aware of her child's struggle with gender identity issues before communication was suspended by the court. Her comments now reflect a lack of appreciation for Ian’s emotional needs. She showed an interest in and sensitivity towards Ian’s transition when she perceived it as being a source of leverage against the Respondent father. Now she rejects the child's coming out and decision to identify as Ian, or Florian, and feels it is more important to communicate her mistrust of the Respondent father.
19The Applicant mother missed an opportunity to convey, through the court and/or counsellors, her support for the children’s progress.
20I have considered whether the mother has proposed a plan for access to the children or for their care and upbringing. I have also considered the mother's ability to act as a parent.
21In Zanewycz v. Manryk, 2010 ONSC 2827, 87 R.F.L. (6th) 323, at paras. 14-16, Warkentin J. addressed the issue of a parent proposing a plan for access:
In directing Mr. Zanewycz to prepare a parenting plan it was expected that he would follow the instructions of the court and that he would consider the many serious findings made against him regarding his conduct in this family law litigation and most particularly as it pertained to the children and the harm he was causing them by involving them in the parental conflict.
It is a very serious step to move from a situation of shared time with the children to no access whatsoever and something that is taken with a great deal of caution and consideration.
Instead of making use of the opportunity provided to him to put forward a plan that demonstrated a sincere desire to rehabilitate his approach to the children’s care, their mother and the new environment of the children; Mr. Zanewycz submitted a plan that demonstrated no insight whatsoever into the needs of the children or the findings made against him by the court regarding his conduct.
22Although the Applicant mother here was not specifically requested to propose a plan for the expansion of access at this motion, she missed the opportunity to do so. She failed to acknowledge any responsibility for her previous conduct that resulted in the April 2016 suspension of access and restraining order. She demonstrated no insight of how her disregard for the needs of the children contributed to the previous findings of this court against her.
23Lastly I have considered the permanence and stability of the family unit and the potential disruption that might be caused to that stability if access is not further suspended.
24In April 2016 I made the findings that communication and contact with the mother had caused the children emotional turmoil, anxiety and extreme confusion in their lives. In particular, Ian was refusing to attend school at the behest of his mother. Furthermore the mother was frustrating the father's efforts to obtain counseling for the children. In contrast, during the period of time that the children have had no contact with the mother, they have stabilized and thrived in their current environment.
25The Applicant mother has demonstrated through her actions and inactions that contact between her and the children will likely have a destabilizing impact. Her husband’s continued inappropriate communication with the children after the imposition of the restraining order, together with her lack of appreciation for and focus upon the needs of the children in her responding affidavit, lead me to believe she is unable to act in a manner that is in the best interests of the children. Her failure to pay support, open emails containing updates on the children's progress, support her child's decision regarding gender neutrality and prioritize the needs of the children leads me to the conclusion that allowing any communication between her and the children is likely to disturb their emotional well-being.
26For the benefit of the children, I will allow the mother to record an audio or visual message that will be forwarded electronically to the Respondent father. The Respondent father will deliver the message to the children's counselors for their review and consideration. The children will be permitted to respond to this communication or communicate on their own to the mother by way of letter or electronic recording as deemed appropriate by the counselors.
27Subject to the foregoing, the orders requested by the Respondent father in his notice of motion dated October 14, 2016 and filed with the court October 18, 2016 are granted as requested, save and except the order regarding costs.
28Therefore I order as follows:
- A temporary Order that paragraphs 1-3 of the Restraining Order of Nicholson J. dated May 2, 2016, paragraphs 1-6 of the Order of Nicholson J. dated May 2, 2016, and paragraphs 1-4 of the Order of Rowsell J. dated July 25, 2016 shall continue, subject only to the following variation:
a) Commencing July 1, 2017, the Applicant, Elke Joan McGrath (“the Applicant”) and the children, Ruby Eibhilin Watts Sheppard, born July 25, 2002 and Finn Marley Watts Sheppard, born February 23, 2004 (collectively “the children”) shall speak by telephone, Skype or Facetime for a period of up to one hour every two weeks.
b) These calls shall be supervised by Linda Bleau of Bleau and Associates, or, if Ms. Bleau herself is unable or unwilling to act, another third party professional supervisor selected by counsel for the Respondent, Adrian Wells Sheppard (“the Respondent”), with the supervisor to be included as a third-party on the calls between the Applicant and the children.
c) The day of the week and the time for these calls shall be fixed and subject to the availability of the children, the supervisor, and the Applicant.
d) The Applicant shall be solely responsible for the fees of the supervisor. The Applicant shall also be responsible for the payment of a four hour retainer to allow for the supervisor to review the history of this file (with documents to be reviewed to be selected by counsel for the Respondent) prior to the commencement of the Applicant’s calls with the children.
e) Should the Respondent have concerns that the children are not adjusting well to the regime for bi-weekly calls with the Applicant, the Respondent may terminate the Applicant’s calls with the children and shall have leave to return this motion.
29The Respondent father is to submit no more than three pages of costs submissions regarding this motion within 14 days and the Applicant mother will have 21 days from today to submit her argument regarding costs, which will also not exceed three pages.
Justice P. Nicholson
Released: December 23, 2016