Court File and Parties
BARRIE COURT FILE NO.: FC-10-167 DATE: 20170307 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Erzebet Kiss, Applicant AND: Ferenc Kiss, Respondent
BEFORE: THE HON. MADAM JUSTICE E.A. QUINLAN
COUNSEL: C. Williams, Counsel for the Applicant C. Severn, Counsel for the Respondent
HEARD: March 1 and 3, 2017
Endorsement
Overview
[1] On December 15, 2016 I found that the applicant mother intentionally breached the Order of Justice Graham dated October 22, 2014 in two respects. The mother denied the respondent father weekend access to the child Anna, born August 19, 2004, beginning on June 3, 2016 and continuing to the present. The mother also failed to give the father reasonable notice in writing of her decision to change Anna’s school.
[2] I adjourned the matter to allow the mother an opportunity to comply with the access provisions of the Order and to deal with the issue of penalty.
[3] The matter is before me to address those issues.
[4] The father filed affidavits to address his contact with Anna since the date of my finding. The mother filed an affidavit outlining her purported efforts to facilitate access. She also filed an affidavit from Lisa Rotar, a police officer and friend of the mother, about her attendance at the mother’s home when access was to be exercised and her "opinion", as a certified behavioural analyst, of the father's behaviour.
[5] After the mother reported to police that Anna told her that the father had a camera in her bedroom, Family Connexions (hereinafter referred to as CAS) became involved. At the penalty hearing, the father called the child protection worker to give evidence. After the mother’s counsel cross-examined the worker, the mother filed a letter from Anna’s counselor.
Evidence at this Hearing
[6] The father and mother filed detailed affidavits chronicling almost daily events since my finding of contempt. A summary of the evidence necessary for me to determine an appropriate penalty is set out below.
Father’s Evidence
[7] Beginning in June 2016, Anna has not attended for any weekend access with him. For the most part, between June and my finding of contempt on December 15, 2016, Anna attended for her Wednesday evening access. The day after my finding, Anna began giving "reasons" she did not want to see the father. When the father attended for his access visit on December 16, Anna said for the first time that she did not feel safe at night with the father. The Wednesday access visits then stopped, with Anna saying she did not feel safe in the father's house because he yelled at her.
[8] On January 4, 2017 when the father attended to pick up Anna for an access visit, Anna stood outside his car and loudly referred to a time in June 2016 when the father grabbed her arm, saying he left bruises that her mother had seen. Anna complained that her father yelled at her. A car, later determined to belong to Ms. Rotar, was outside the mother’s home at the time.
[9] On January 12, Anna told the father that she found a camera and that he was watching her. She told him that she broke the camera and “put it back”.
[10] CAS became involved. After that, Anna’s demeanour changed. She was calm when speaking to the father over the phone and agreed to a Wednesday visit with him in the community. That visit, on February 8, 2017, was positive. On February 9, 2017, Anna called and asked her father to take her to Hardwood Hills on the weekend.
[11] On February 10 that all changed. Anna called the father and left a message that she did not want to attend for access that weekend because she did not feel safe at his place. She told the father that she had “a choice if [she] want[s] to go or not…” When the father went to the mother's home on February 10, 2017 to pick up Anna, Ms. Rotar escorted Anna outside. Anna told the father she did not want to go because she did not feel safe and that maybe they could re-evaluate in a month or so. Ms. Rotar said, “Right”. The father asked for Ms. Rotar’s name. She told him her name and said that she was an O.P.P. officer, there to keep the peace and be a witness to what Anna was saying.
[12] The father denied getting angry with Anna and deposed that Anna is being asked to "choose between him and her mother and sister”, creating a “loyalty bind” for her. He deposed that there has never been a camera in Anna’s room. He has never asked her to sit on his lap. He has caressed Anna’s face with the back of his hand when she was leaving but abstained after she told him not to. He never touched his daughter in any inappropriate way or watched her in her bedroom.
[13] On February 24, 2017, when the father went to the mother’s home to pick up Anna, Ms. Rotar came out of the house first and Anna followed. Anna again refused to go to the father's home.
Mother’s Evidence
[14] The mother deposed that she wants there to be re-integration therapy with the father. She has brought a Motion to Change in which she seeks the involvement of the OCL to assist in determining an access schedule that is in Anna’s best interests. The only pressure she puts on Anna is to go to her scheduled access visits with the father.
[15] Anna told the mother that she texted Ms. Rotar on February 9 and invited her over. The mother stated that Ms. Rotar is a police officer and a friend. On February 10, Anna went outside with Ms. Rotar when the father attended for his access visit. On February 24, Anna again invited Ms. Rotar to their home when the father was to pick up Anna, and Anna again refused to go.
[16] The mother deposed that she has tried to instill in Anna that she does not have a choice about attending for access. She said that she has told Anna that she has to go visit the father and “that it's important for her to have a relationship with her father and that it starts with having the regular visits with him". She deposed that she has encouraged Anna to speak to the father about doing different activities and that Anna told her, and she believes, that Anna is not yet ready to do that. She sets out a number of “reasons" that Anna says she does not want to stay overnight at the father's home.
[17] On January 4, 2017, Anna told her that she did not feel safe at the father's house. When the mother “pried”, Anna told her and the mother verily believes that the last time Anna was at the father's house, Anna noticed "a small camera" on a shelf in the bedroom where she slept. Anna complained that the father was watching her. The mother deposed that she has no reason to believe that these statements made by Anna are false. I note that this affidavit was sworn February 26, 2017, after CAS investigated the complaint and made clear to the mother that they did not verify the existence of the camera.
[18] On January 6, 2017, the mother reported the camera to police. Police investigated the matter on January 24 and reported it to CAS. On February 3, 2017 CAS determined that there were no safety concerns with the father exercising access to Anna.
[19] The mother "cannot remember" seeing bruises on Anna's wrist.
Lisa Rotar’s Evidence
[20] Ms. Rotar filed an affidavit. She deposed that she has been employed as a Provincial Constable with the Ontario Provincial Police since 2005. Her current position is in the Investigation and Support Bureau, Behavioural Sciences and Services Section, as a VICLAS (Violent Crime Linkage Analysis System) Behavioural Analyst. She has been certified as a Behavioural Analyst Specialist since 2013. Ms. Rotar does not mention in her affidavit that she is the mother’s friend.
[21] Ms. Rotar deposed that she received a text message from Anna on the evening of February 8 and spoke to her for 45 minutes the next evening. She said that she felt it “prudent” to disclose that on January 7, 2017, Anna disclosed to her that her father had placed a camera in her bedroom and would look at her while she pretended to sleep, that he asked her to sit on his lap, he pet her hair and in the past had grabbed her arm.
[22] Ms. Rotar deposed that "as a certified Behavioural Analyst Specialist with the O.P.P., I would treat this information as worthy of analysis and as a precursor of escalating sexual and or violent behaviour". She deemed the father's behaviour to be “alarming”.
[23] Anna requested that Ms. Rotar attend the mother’s home on February 10, 2017 to stand by while Anna told the father she would not be going to his home. Ms. Rotar agreed to attend. Ms. Rotar then called the mother who she deposed was not aware that Anna had contacted Ms. Rotar or asked her to come over. Ms. Rotar told the mother she would be coming over to support Anna in any way Anna required. The mother agreed to Ms. Rotar attending the home and explained there was a court order in place that mandated Anna go with the father.
[24] On Friday, February 10, Ms. Rotar attended the mother’s home. She and Anna walked out to the father's car. Among other things, Anna told the father that she did not feel safe with him, did not want to go with him and would consider meeting with him in a month or so. The father asked Ms. Rotar who she was. Ms. Rotar told the father her name. She told him that she was there to support Anna, she was an off-duty police officer with the O.P.P. and she wanted to keep the peace and be a witness for Anna.
[25] I note that Ms. Rotar's affidavit was sworn February 25, 2017, after the CAS had investigated the complaint of the camera and found that it was not verified.
Gaby Pechmann’s Evidence
[26] Ms. Pechmann is a child protection worker with CAS. She was assigned to investigate allegations that there was a camera in Anna’s bedroom at the father’s home.
[27] Ms. Pechmann met separately with the father, the child and the mother and then met with the child and mother together.
[28] Anna described the camera to Ms. Pechmann. Anna described its size and attached cables. Ms. Pechmann later asked the mother how Anna had described the camera to the mother. The mother gave a description and told Ms. Pechmann that she and Anna had “googled” cameras on the internet and Anna had picked out an image that Anna said looked like the camera that she had seen in her father’s house.
[29] The camera that Anna described to Ms. Pechmann was completely different from the description the child had given to the mother and had identified on the internet. Ms. Pechmann found the information to be “very contradictory". She told the mother that she highly doubted the existence of the camera.
[30] Anna complained to Ms. Pechmann that the father had grabbed her, resulting in bruising so bad that Anna showed the mother. When Ms. Pechmann asked the mother about this, the mother denied to Ms. Pechmann that she had seen any bruises on Anna.
[31] Anna told Ms. Pechmann that she did not feel comfortable having access with the father: he got angry, she got bored and she did not like it when the father petted her hair. Anna did not report any mental health concerns or show any signs of anxiety during her interview with Ms. Pechmann. Anna told Ms. Pechmann that on Wednesday access visits, she would like to go out more. When Ms. Pechmann asked about weekends and whether the paternal grandmother could be present to make Anna feel safe, Anna responded, "I feel uncomfortable".
[32] Ms. Pechmann found no reason to suspend access. She did not verify the camera complaint and reported this finding to the mother. Ms. Pechmann was of the opinion that if Wednesdays were modified and the paternal grandmother was in the home on weekends, visits between Anna and the father would be safe. Ms. Pechmann suggested to the mother that she would follow-up after two visits and re-interview Anna to see how the visits were going.
[33] When Ms. Pechmann met with Anna and the mother together, she told Anna that, as adults, their job was to keep her safe and there was nothing to suggest she would not be safe if she saw her father. On Wednesdays, visits would be in the community and they could do different activities and on weekends, the paternal grandmother would be there. Ms. Pechmann told Anna that she would meet her after access visits to get feedback. Anna seemed comfortable and showed no sign of distress although one time she indicated calmly that she did not want to sleep over at her father’s.
[34] During the next two weeks, Ms. Pechmann received updated information from both the father and the mother. Ms. Pechmann learned from the father that the weekend visit did not take place and that a police officer had told the father to leave.
[35] Later Ms. Pechmann received a telephone call from the mother. They had a lengthy conversation. When Ms. Pechmann asked the mother why the visits were no longer occurring, the mother was adamant that it must be because of the father. Ms. Pechmann asked the mother why the mother had allowed another adult to sabotage the visits. The mother had no clear answer. In that conversation, which took place around the middle of February, the mother raised Anna's mental health concerns for the first time.
[36] Ms. Pechmann testified that she is very concerned that the custody and access issues are causing emotional harm to Anna and concerned about the impact on Anna if the period of no access continues. She found no information to suggest Anna is at risk of harm due to access visits. Ms. Pechmann testified that if matters do not get back on track, she will consult with her legal department; CAS may file a protection application and seek a supervision order.
[37] Ms. Pechmann suggested that week-about access may be more beneficial to re-establish the father’s ability to parent. The short breaks that are presently occurring "mess things up". Any order needs to be police enforced because even with encouragement, access has not happened.
[38] Ms. Pechmann testified that at this stage, discussion with Anna’s counselor would not necessarily have any impact on her conclusions. However, I note that Ms. Cook's letter was not put to Ms. Pechmann so it is difficult to assess what impact it might have had on her evidence.
[39] When asked her view as to whether the mother is supporting access, Ms. Pechmann testified that the mother's words do not match her actions.
Medical and Counselling Information
[40] The medical records show that although Anna complained in 2015 of not enjoying telephone access with her father and had general concerns relating to the custody and access dispute, her complaints of significant stress and anxiety only arose after my finding of contempt. Anna has been referred to a psychiatrist. Medication for mood and anxiety has been recommended. Anna is now seeing a counselor, Susan Cook.
[41] Ms. Cook filed a letter dated March 2, 2017 in which she reported information from Anna given to her in the course of the eight sessions she has had with her. Anna has consistently told Ms. Cook that she does not feel safe with her father and she does not want to go see him. Anna has reported apparent concerns with spending time with the father. Anna reported discussions that she has had with her sister, her mother and her maternal grandmother about the father and with both parents about the court process.
[42] A number of complaints Anna raised with Ms. Cook have obviously come from third parties. When Ms. Cook asked Anna if there was anything she wanted her to say on her behalf if asked by her mother or father, Anna said a number of things. Anna told Ms. Cook that the child protection worker forced her to say something about the cable with the camera. Anna does not appear to have reported that her father was watching her while in bed, had her on his lap or pet her hair, although I consider that perhaps this had been discussed in other sessions. Anna was concerned that no blame be placed on the mother for Anna’s failure to attend at access visits.
Analysis
[43] On December 15, 2016, I found beyond a reasonable doubt that the mother was in contempt of the 2014 Order. For the reasons set out below, I find that the mother has not purged her contempt and has no genuine intention to do so:
(i) Anna began providing “reasons" immediately after my contempt finding to support that there be no access. Anna reported to her counselor that she was concerned that her mother would be blamed for her not attending for access. Anna is aware that her mother might get “fined” if she does not attend for access. I have considered the extensive history in this matter and find that the only reasonable inference is that the mother is pressuring Anna to provide reasons to not see the father;
(ii) Only after my finding of contempt did the mother raise concerns that Anna is experiencing significant mental health issues. If the mother truly believed that Anna’s mental health issues made access with the father untenable, I find that she would have immediately contacted CAS. Instead, the mother used Anna’s mental health to argue she is not wilfully breaching the court order;
(iii) The mother has ignored the fact that Ms. Pechmann did not verify the camera complaint. She maintains there is no reason not to believe Anna, despite the significant contradictions in Anna’s description of the camera. If the mother believed Anna’s allegation about the camera, I find that she would have contacted CAS immediately. I accept Gaby Pechmann’s evidence that the mother acknowledged that, as a medical doctor, she was aware of the duty to report. The mother agreed with Ms. Pechmann that if a patient had made that allegation to her, she would have called the CAS. Instead, the mother contacted the police. Even after the CAS did not verify the allegation, the mother continued to argue that this was a reason that Anna did not want to see the father;
(iv) After CAS did not verify the camera allegation and after the successful access visit took place on February 8, 2017, the mother allowed her friend, who was a police officer, to insinuate herself into the situation and support Anna in not attending for access, in breach of the Order;
(v) After access did not take place on February 10, the mother did not immediately contact Ms. Pechmann to try to get things back on track;
(vi) The mother allowed Ms. Rotar to attend and again support Anna in her “choice” not to attend for access on February 24, the next scheduled weekend.
[44] I agree with Mr. Severn’s submission that my finding of contempt led the mother to “up the ante". Suddenly, Anna began making allegations against her father to explain the "reasons" why she did not want to go with him. Anna began complaining of mental health issues. After the CAS orchestrated a successful access visit, a family friend who was a police officer became involved. At the same time, Anna began to say that she had a choice whether to attend for access. At that point, despite the success that had been achieved with CAS involvement, matters between Anna and the father again deteriorated.
[45] The only reasonable inference I can draw is that, as Ms. Pechmann testified, the mother's words do not match her actions. If the mother truly wanted to support and facilitate Anna's relationship with the father, she would not have allowed an off-duty police officer to accompany Anna when Anna was to go with the father for access. I find that the mother was aware that Ms. Rotar’s purpose in attending outside the mother’s home with Anna was to thwart the access visits. The mother is aware that the camera complaint was not verified by CAS, yet she has continued to maintain that there is no reason to doubt what Anna has said. She either did not tell Ms. Rotar about the non-verification by CAS or Ms. Rotar failed to include this relevant information in her affidavit. Either proposition is troubling.
[46] In determining what is in Anna’s best interests, I have considered the factors set out in section 24(2) of the Children’s Law Reform Act. I accept the evidence of Ms. Pechmann, whose evidence I find credible and reliable. She was forthright in her evidence, and her suggestions to deal with matters were thorough and considered. Access was positive after Ms. Pechmann’s involvement. I do not accept the mother’s evidence. I find the mother is focused on marginalizing, and perhaps severing, the father’s relationship with Anna. The value of Ms. Cook’s evidence is limited: she openly acknowledged that she is not privy to all aspects of the case. Ms. Cook has set out "reasons" that she believes that any interaction with Anna and the father would be stressful for Anna. I do not accept the "reasons" set out in Ms. Cook's letter. They are premised on her accepting that everything that Anna has said is true. Ms. Cook's belief that "Anna is adamant and she will not change her mind about spending time with her father", which belief informs her recommendations, is contrary to what occurred after Anna met once with the CAS child protection worker. After that brief meeting, Anna willingly exercised access with her father, albeit in a community setting.
[47] I find that I cannot place any weight on Ms. Rotar's affidavit. She did not make clear in her affidavit that she is the mother’s friend. She purported to provide expert opinion evidence as a certified Behavioural Analyst that the father's behaviour could be considered “a precursor of escalating sexual and or violent behaviour". However, Ms. Rotar was not qualified as an expert witness. Ms. Rotar was not acting in the capacity of a police officer when she received information from the mother and Anna. Ms. Rotar was only privy to limited information. She was in a position of conflict as the mother’s friend. Particularly troubling is that Ms. Rotar, a police officer, was prepared to facilitate breaches of a court order.
[48] Anna and the father had a good access relationship for four years. After limited CAS involvement in February they again had a positive time together. I am satisfied that a resumption of Anna’s access relationship with the father is in Anna’s best interests. I accept Ms. Pechmann’s evidence that Anna’s demeanour demonstrated that, so long as access could be somewhat modified to ensure there were activities during access and the paternal grandmother was present, access would be positive for Anna.
[49] With the passage of time since there has been weekend access, I agree with Ms. Pechmann that the only way to get things back on track is to give the father extra time with Anna. I find that there needs to be meaningful time-sharing to ensure that access successfully resumes. Make-up access, especially in the context of a penalty for contempt, does not need to be determined on a day-for-day basis.
[50] I find that it is in Anna’s best interest that she engage in reconciliation counselling and have extra time with the father so that the mother does not succeed in what I find to be her attempts to marginalize and possibly sever Anna’s relationship with the father.
[51] As the court held in Peers v. Poupore, 2012 ONSC 2909 at para. 63:
[I]deally, a sentence for contempt in family law should be comprised of two components: one, restorative (to the victim of the contempt), the other, punitive (to the contemnor). To accomplish the former requires that the sentence correlate to the conduct that produced the contempt. While such dispositions serve to placate the victim of the contempt, they do not address the damage done to the administration of justice: that is where the punitive component enters the picture. [Citation omitted.]
[52] The parties agree that an appropriate penalty for contempt is to require the mother to pay for reconciliation counseling conducted between the father and Anna. They agree that this counseling be conducted by Shely Polak. Ms. Polak is available to commence reconciliation counseling March 27, 2017. This penalty accords with both the restorative and punitive components of a sentence for contempt.
[53] The mother has agreed to continue with individual counseling and I strongly urge her to do so.
[54] The parties also agree that an appropriate penalty for contempt is that there should be make-up access visits awarded to the father and that there be some penalty for missed access. This penalty also accords with the restorative and punitive components of a sentence for contempt. The parties do not agree, however, on the extent of any make-up visits or, if there is police enforcement, when it should begin.
[55] In view of the successful access on February 8, I am satisfied that access should continue without waiting for reconciliation counselling to begin. Any delay would not be in Anna’s best interests. Recent access visits will also provide current information to assist Ms. Polak and guide her in the reconciliation counseling. I accept Ms. Pechmann’s evidence that extended time with the father, such as week-about access, is needed to get things back on track. I find that it is in Anna’s best interests to have week-about access and police enforcement after the reconciliation counseling has begun.
Conclusion
[56] Accordingly, I order that:
Commencing by March 27, 2017, there shall be reconciliation counselling conducted by Shely Polak between the father and Anna. The mother shall pay for the cost of such counseling. It shall take place at the frequency and for the duration recommended by Ms. Polak.
The mother shall be permitted to take Anna to the first appointment with Ms. Polak. At the first appointment, Ms. Polak shall determine who will be responsible for bringing Anna to and returning Anna from the counseling.
Access shall continue as per the Order of Graham J. dated October 22, 2014, except as follows:
(a) Commencing March 8 and until May 1, 2017, Wednesday access shall be exercised in the community. After May 1, 2017, Wednesday access may be exercised in the location recommended by Ms. Polak. Pick up shall be at Anna’s daycare provider at 5:30 p.m. and drop off shall be at the mother’s home.
(b) Commencing March 9 and until May 5, 2017, access to the father shall be every second Friday with pick-up at 5:30 p.m. at Anna’s daycare provider and drop off Monday mornings at Anna’s school. The paternal grandmother shall be present while access is exercised in the home.
(c) Commencing May 5, 2017, access shall take place on a week-about arrangement, with exchanges taking place on Fridays at 5:30 p.m. at Anna’s school during the school year and at Anna’s daycare provider during the summer, and continuing until September 1, 2017. After September 1, 2017, access shall revert to the access arrangements set out in the Order of Graham J. dated October 22, 2014.
(d) The parties may arrange extended summer access, on the recommendation of Ms. Polak, though counsel.
(e) The mother shall not contact Anna during access visits. The mother shall not be present at the daycare provider or the school during the access exchange. If Anna has concerns while exercising access, she may contact Gaby Pechmann or any other child protection worker at Family Connexions.
(f) Ms. Pechmann may monitor how access is progressing at any time.
(g) Commencing May 1, 2017, there shall be police enforcement of these access provisions. Pursuant to section 141 of the Courts of Justice Act and section 36(2) of the Children’s Law Reform Act, the Ontario Provincial Police, Barrie Police Service and all enforcement officials to whose attention this Order is brought, in the Province of Ontario, in the area where the child is located, shall assist as required for enforcing the provisions of this Order and shall specifically take all such action as required to locate, apprehend and deliver the said child to the respondent father including utilization of the powers of search and entry at any time.
(h) Any further access shall be subject to the recommendations of Ms. Polak.
(i) Should Ms. Polak recommend sessions that would breach any existing non-communication order, that order shall be varied to permit such recommended sessions to take place.
Costs
[57] If the parties are unable to agree on costs, I will receive written submissions from the respondent father by March 21, 2017, followed by responding submissions from the applicant mother by March 31, 2017. Reply by the respondent father, if any, shall be filed by April 7, 2017. Costs Submissions shall be no more than three pages in length, exclusive of any Costs Outline or Offers to Settle. If no submissions are received by March 31, 2017, the issue of costs will be deemed to have been settled as between the parties.