Court File and Parties
COURT FILE NO.: F1450/15 DATE: January 13, 2017 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: K.D.S., applicant AND: G.M.P., respondent
BEFORE: MITROW J.
COUNSEL: William R. Clayton for the applicant William J. Doran for the respondent Therese Landry for the Children’s Lawyer
HEARD: December 19, 2016
Endorsement
Introduction
[1] The parties have two children: a daughter, M., age 17; and a son, C., now age approximately 13½.
[2] The motion before the court is the respondent’s motion for an order: a) that C. continue to spend half of his time with the respondent as set out in the existing separation agreement; b) that C. and his mother attend counselling together; and c) a police assistance order.
[3] This court has been assisted, substantially, by the Office of the Children’s Lawyer (“OCL”). Mr. Morrison Reid, who holds a Masters of Social Work degree, is a member of the OCL clinical panel, and was assigned to provide clinical assistance to Ms. Landry. Mr. Reid has filed a very thorough 86 paragraph affidavit sworn in October 2016, and a brief supplementary affidavit sworn December 8, 2016. He was not cross-examined on either affidavit.
[4] Put simply, both children reside with the applicant father and neither child, currently, has any regular ongoing relationship with the respondent mother. The applicant submits that the children have made this choice; he deposes that he is supportive of the children seeing their mother but, despite all efforts on his part, the children refuse to have a relationship with the mother.
[5] The respondent deposes that the applicant has alienated the children from her; however, given their daughter’s age, the respondent focuses her motion only on C.
[6] By order dated April 26, 2016, I seized myself with all motions and steps in this case.
[7] On May 2, 2016, an order was made for Susan Abercromby, a registered psychotherapist, to provide counselling for the children and both parties, at the parties’ joint expense. At the therapist’s request for a “truce” while counselling was being facilitated, argument on the motion was deferred. As noted in more detail below, counselling did not assist the parties, nor the children, and a special appointment date was eventually set to argue the respondent’s motion on December 19, 2016.
[8] On that date, this case was ordered to proceed to trial during the May 2017 sittings, and a combined settlement conference and trial management conference was set before me in April 2017. The decision on the argued motion was reserved.
[9] The disposition of the motion must take into account that the trial date is pending; having said that, the evidence on the motion is quite concerning; in particular, this includes the applicant’s empowerment of the children and, especially, in relation to C., the fact that his apparent and somewhat extreme rejection of his mother is quite inconsistent with his reasons explaining why he does not want to see her.
[10] For reasons that follow, some access between C. and the respondent is ordered; further, the respondent is given authority to arrange counselling; the issue of the police assistance order is adjourned without prejudice to the respondent’s right to bring this matter back before me; and C. is to meet with me, in the presence of counsel, so that I can explain the court order to him.
Parents’ Evidence
[11] The trial judge will have the benefit of the full evidentiary record, including cross-examination. In deciding this motion, I rely primarily on facts that are not in dispute.
[12] The parties were married to each other in 1995; they separated in 2006 and were divorced pursuant to a divorce order dated August 25, 2008. The divorce order includes no claims for corollary relief.
[13] The pleadings in the present proceeding show that each party claims custody of the children pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12.
[14] The parties resolved all issues arising out of their separation by way of a separation agreement in March 2007. At that time, each party had legal advice from senior and experienced family law counsel.
[15] The parenting plan contained in the separation agreement provided for the children to spend equal time with each parent; further, the separation agreement stated that the parents “will have shared/joint custody of the children” (paragraph 4.1).
[16] The evidence on the motion suggests that each party was a fully engaged parent to both children, before and after separation; the parties abided by the parenting schedule set out in the separation agreement for many years.
[17] Both parties agree that a change in the children’s residence took place on April 8, 2014; at that time, both children moved in with the applicant.
[18] Importantly, the applicant (at paragraph 7 of his first affidavit) deposes that “… both [M.] and [C.] moved in with me at their request ” (my emphasis). At that time, M. had just turned age 15 and C. was age 10.
[19] The applicant explains what prompted the children to move. The gist of the children’s complaints, as explained by the applicant, included allegations that the children were confused by their mother’s disciplinary techniques, that if one child did something wrong, then both children would be consequenced (for example, taking away privileges, like electronic devices); the children complained that the disciplinary techniques were emotionally stressful, that the children would be accused of not loving their mother when they misbehaved; and the children complained that the discipline imposed by the mother was excessive.
[20] The applicant deposes that “finally” the children came to him in February 2014, stating to the applicant that if he did not allow the children to move in with him, that they would take “matters into their own hands,” which included, according to the applicant, trying to find a friend or relative to live with or, alternatively, the children threatened to “live on the street.” For emphasis, I repeat, that at this time C. was age 10!
[21] The applicant deposes that he tried to discuss this issue with the respondent on numerous occasions but that she would become “defensive, combative, and dismissive.”
[22] The respondent, generally, did not dispute the applicant’s account of access arrangements after the change in residence. The applicant deposes that he encouraged the children to see their mother on alternate weekends, plus C. saw his mother on Wednesdays. In May 2014, C. went on a trip to Hawaii with his mother, and there was a summer vacation week with both children and their mother in July 2014. After November 2014, the access became quite sporadic.
[23] At the time that the respondent brought her motion, first returnable February 24, 2016, the last time that she had seen the children was for a “few hours” during Christmas, according to the respondent.
[24] The applicant described his frustration in trying to encourage the children to see their mother; he recounted instances of the children crying, yelling at him, lying on the floor, and/or shutting themselves in their rooms when the respondent would arrive.
[25] Despite C.’s expressed resistance to see his mother, there is evidence that when a visit does occur, that he enjoys the visit. An example is Mother’s Day in May 2016. The respondent’s evidence is that she spent two hours with C. This included going out for lunch. When the respondent returned C. to his father’s home, he hugged the respondent, and told her how much he loved her. He did this in the car and a second time as he was closing the car door.
Evidence from the OCL – Mr. Reid
[26] The OCL interviews spanned a number of months. Individual interviews were conducted for each parent, and the partner of each parent. An observational visit was conducted at each parent’s home with both children being present. Finally, each child was interviewed separately on three occasions; further, as indicated in the supplementary affidavit, Mr. Reid and Ms. Landry also met separately one further time with each child – with M. on November 24, 2016 and with C. on December 1, 2016.
[27] There are aspects of Mr. Reid’s evidence, from the interviews, that are important, and relevant, on the motion, and it is on that evidence that I focus.
[28] The applicant confirmed that, although he tried to encourage the children to have a relationship with their mother, that “ he also assured them he would understand if they didn’t want to see her ” (my emphasis).
[29] The applicant began residing with M.P. (“Ms. P.”) in December 2013. Both the applicant and Ms. P. are college instructors. The applicant reported that both children “love her [Ms. P.] to death.” The applicant advised that Ms. P. supports the children’s decisions not to see their mother at this time.
[30] When Ms. P. was interviewed, she said that she told the children they could choose to live with either their mother or their father, and that she and the applicant would support whatever decision the children made.
[31] It was only four months after the applicant and Ms. P. began to co-habit that the children moved in with the applicant.
[32] Ms. P. was asked, specifically, whether she felt that a 10-year-old child was old enough to make a decision not to see a parent. Mr. Reid deposed that Ms. P. responded that she would support such a decision by a 10-year-old if that relationship was detrimental to the child.
[33] M. was clear and consistent in her interviews that she did not wish to have contact with her mother. She characterized her relationship with her mother as fraught with arguments, that her mother used guilt and emotional manipulation on both her and C., including crying in front of them.
[34] It was Mr. Reid’s evidence that M. has a very close relationship with C., that she is protective of him and that she needs to protect him from their mother. She views herself in almost a parental role, describing herself as a “mother bird.”
[35] M. described experiencing high levels of anxiety beginning when she was in grade 9 (she is in grade 12 now). M. shared that she had a “bad episode” of anxiety around mid-April 2016 while at school. According to M., the anxiety has lessened, and she is not seeing a counsellor. M. shared that one of her worries is being a disappointment to her father’s side of the family. It is noted that M. described a close relationship with her paternal grandparents; in contrast, she did not have a similar relationship with her maternal grandparents. However, she did describe a positive relationship with her mother’s partner, D.K. (“Mr. K.”).
[36] M. refers to the applicant and Ms. P. as her parents.
[37] In relation to the children’s meeting with Ms. Abercromby, there was no independent report from her. The information about the children’s interaction with Ms. Abercromby came from the children’s interviews. For her part, M. stated that she did not have a positive meeting with Ms. Abercromby. It was M.’s perception that the therapist’s role was to try and make the children have a relationship with their mother, and that she does not wish a further meeting with Ms. Abercromby.
[38] In interviews, C. echoed his sister and was also clear and consistent about not having contact with his mother. However, C. also pointed out that whether he has contact with his mother should be his decision. Currently, C. has telephone contact with his mother once every three days pursuant to a court order. C. did express a resentment that the court is requiring him to have telephone access. However, it is somewhat instructive that the telephone access does take place. According to the evidence of Mr. Reid (his last affidavit) and a further affidavit from the applicant, C. saw his mother on two visits in August 2016, and he saw her at a chance encounter at a fall fair at the end of September 2016.
[39] Mr. Reid deposed that C. expressed his belief during interviews that “… at age ten he was old enough to make decisions not to see his mother . He shared that everyone from his father’s family supported his decision which he said he made with his sister ” (my emphasis).
[40] At paragraph 64, Mr. Reid deposes as follows regarding C.’s explanation as to why he is not seeing his mother:
When asked why he made the decision not to see his mother, he said that it was because of how she treated him and [M.]. For example, [C.] recalled that when he was 5 years old, he asked his mother for a new back pack. She refused and this made [C.] feel that he didn’t deserve it. As a form of discipline, [C.]’s mother would take away all of [the] children’s electronic devices. She also assigned [C.] and [M.] household chores such as hand washing dishes when there was a dishwasher in the home to do that. [C.] also reported that his mother would sometimes breakdown crying and say that the children didn’t love her during times when they were having disagreements. She would also sometimes raise her voice but he was never “scared” of her.
[41] C.’s description of the meeting with Ms. Abercromby, curiously, was similar to his sister’s. C. stated even though Ms. Abercromby had told him and M. that she was unbiased, it was C.’s view that Ms. Abercromby had sided with his mother. According to C., the information that Ms. Abercromby shared about the importance for children to have a relationship with both parents had no application to him because Ms. P. was his mother figure now. Like his sister, C. was clear he did not need to meet again with Ms. Abercromby.
[42] The home visit at the residence of the respondent and Mr. K. was described as being positive. Mr. Reid observed C., when being greeted, sharing a hug with his mother and leaning into her. M. was observed engaging in conversation “easily and in a friendly manner” with her mother and Mr. K. Mr. Reid did note that C. “ sometimes looked to his sister as if for direction ” (my emphasis). The observation lasted for one hour, but the children elected to stay longer, for approximately one-half hour, to continue to visit.
[43] Both children described a very positive relationship with their father.
[44] Interviews with Mr. K. and the respondent revealed that they have been living together since 2010. The respondent is a school teacher. It was the respondent’s observation that both children became hostile and disrespectful to her in January or February, 2014. This was just after Ms. P. and the applicant began to co-habit; the respondent believes there is a correlation between the children’s change in attitude and Ms. P. moving in with the applicant.
Discussion
[45] As the respondent’s motion is only in relation to C., the discussion below focuses on C.
[46] I find that the evidentiary record on the motion supports the conclusion that C. at age 10 was empowered by the applicant, who was supported by Ms. P., to make decisions about his own custodial care; and considering what C. himself said to Mr. Reid and Ms. Landry, it is not a stretch at all to conclude that this message was driven home clearly to C. by his paternal family.
[47] It is noted that Ms. P. filed no affidavit.
[48] A 10-year-old child does not make decisions about his primary custodial care. This is a decision to be made by adults. The applicant abdicated his parental responsibility – he let his 10-year-old son decide where he should live. Then the applicant breached the separation agreement and unilaterally assumed primary de facto custodial care of C. The applicant’s conduct was unreasonable.
[49] When the applicant was confronted with the situation where C. was describing a negative relationship with his mother, and was resisting access, the applicant’s immediate response should have been a strong and tangible course of action in implementing meaningful counselling for C.; secondly, the applicant, rather than engaging in a self-help remedy, should have sought the assistance of the court immediately given the absence of the respondent’s agreement to the change in custody.
[50] Throughout his evidence, when referring to information received from M. and C., the applicant routinely deposed to what “ the children ” (my emphasis) told him. The applicant failed to explain what each child said individually. This is important because the evidence also supports the conclusion that M. was the leader, and C. was the follower. The age difference is not insignificant. M. viewed herself as having some parental oversight over C. She was the “mother bird.” Also, M.’s rejection of her mother was more extreme in contrast to C. who, in the recent past, has had some sporadic visits with his mother and does have regular telephone access.
[51] There is no evidence from the applicant that he gave any consideration as to what extent C.’s views may have been influenced by his sister. No reasonable attempt, if any, was made by the applicant to consider the needs and best interests of the children individually.
[52] I give significant weight to Mr. Reid’s observations, and his evidence as to what the children said, given that the children had separate interviews. Also, Mr. Reid brings an unbiased and neutral perspective.
[53] The sad reality is that C. has lived close to three years in an atmosphere of empowerment, led by his father and supported by Ms. P. While C.’s wishes and preferences are clear, those wishes and preferences are not in his best interests and have been influenced by the adults around him, and very likely by his sister.
[54] There is a puzzling, and significant, chasm between the nature of C.’s complaints about his mother as reported by Mr. Reid, and his extreme level of estrangement from his mother. While there are some aspects of troubling conduct engaged in by the respondent, as described by C. and M., to Mr. Reid, it is difficult to find a nexus between that behaviour and the extreme level of C.’s rejection of his mother.
[55] Further, C.’s visits with his mother, when they do occur, are positive and are coupled with an expression or show of affection by C. towards his mother. This also was clearly observed by Mr. Reid.
[56] It is trite law that decisions relating to custody or access are largely fact-based. This rings true, in particular, when a court must determine the weight to be placed on a child’s wishes.
[57] The applicant relies on various authorities, a number of which are trial decisions. However, some general principles emerge. A helpful summary, relied on by the applicant, is the trial decision of Gordon J. in J.L.M. v. I.H.M., 2004 ONSC 47774 that includes the following:
16 There is ample case law stating that a child's wishes do not bind the court, but that as a child's age advances into the teens, it is a strong consideration.
"In order for custody orders relating to children in their teens to be practical they must reasonably conform with the wishes of the child."
17 This is a quote from O'Connell v. McIndoe, 1998 BCCA 5835, [1998] B.C.J. No. 2392. Also see Shapiro v. Shapiro (1973), 33 D.L.R. (3d) 764, 1973 BCCA 1127 and Alexander v. Alexander (1988), 15 R.F.L. (3d) 363, 1988 BCCA 3385.
18 At the same time the child's wishes must not be considered in a vacuum.
19 In Blair v. Blair, 1995 ONSC 6977, [1995] O.J. No. 2962, Justice O'Connor says at paragraph 12;
"Further and obviously, the court must give considerable weight to the wishes of a 14 year old boy. That is not to say, however, that his wishes are determinate of the issue. The court should consider the maturity of the child, the extent to which he has thought through his decision and the factors influencing it. Ultimately, the court, not the child, must make the decision as to his best interests."
[58] In Kaplanis v. Kaplanis, 2005 ONCA 1625, also relied on by the applicant, the Court of Appeal for Ontario noted at para. 13 that, while a child’s best interests are not necessarily synonymous with a child’s wishes, the older the child, the more an order as to custody requires the cooperation of the child and a consideration of a child’s wishes. In the recent case of L.(N.) v. M.(R.R.), 2016 ONCA 915, it was again confirmed, at para. 36, that the wishes of a child, and the best interests of a child, are not necessarily synonymous. In my view, the aforesaid principles apply irrespective of whether the child’s wishes relate to custody or access.
[59] The OCL relies on two cases. In Kincl v. Malkova, 2008 ONCA 524, in a brief endorsement, the Court of Appeal for Ontario overturned a trial judge’s order as to access to a child almost age 14 based on fresh evidence, and made an order that access was to occur as requested by the child. A distinguishing aspect of that case is that there had been an absence of access by the parent in question for almost three years; this clearly is not the case with C. In the other case relied on by the OCL, V.F. v. J.C.F., 2013 ONSC 5102, the following statement by J. MacKinnon J. is relevant:
168 Little weight is given to the residential preferences of even a teenage child when those views are not independent, rather, are the product of unrelenting influence by an alienating parent. …
[60] While C.’s wishes have been tainted, it is not possible to ignore completely his wishes, having regard to his age.
[61] I find that it is not in C.’s best interests to allow him to decide, at this time, whether to see his mother. He shall see his mother. It is in C.’s best interests for the order to provide for some defined, modest access, pending trial, with flexibility to increase that access subject to C.’s wishes.
[62] Ms. Landry was supportive of a therapeutic approach. I agree that a therapeutic element is appropriate and in C.’s best interests. However, there are two important caveats: the counselling arrangements shall be controlled by the respondent and, secondly, the counselling shall be for C. and the respondent, with a view to repairing their relationship.
[63] Although I make no order, if the applicant wishes to arrange counselling for M., and if she is willing to go, then that counselling should occur separately.
[64] The respondent pressed for a police assistance order. This was resisted by both the applicant and the OCL.
[65] C. needs to know that he must attend access and counselling. It is important that C. should have an opportunity to demonstrate voluntary attendance at access visits and counselling. At this time, I decline to make a police assistance order; however, the order below does preserve the respondent’s right to make that request again.
[66] The telephone access, on the terms as ordered by Heeney J., shall continue. I find ongoing telephone access to be in C.’s best interests.
[67] While some of the complaints reported to Mr. Reid by M. and C. regarding their mother seem trivial and petty, there is a tangible issue raised as to some inappropriate conduct by the respondent.
[68] I find that the respondent’s affidavit material does not address, head on, the more serious allegations made against her that apparently caused emotional upset to M. and C. The respondent’s theory of the case, that this is solely a question of alienation, is not supported by the evidentiary record. It is much more likely that the children’s refusal to see their mother is a product of negative behaviour by both parents.
[69] Although I make no order to this effect, both parents are encouraged to pursue personal counselling to assist them in making any necessary changes or adjustments in relation to parenting.
[70] The applicant did raise the extent to which the court should rely on Mr. Reid’s evidence on the motion, as opposed to the trial.
[71] I regard Mr. Reid, primarily, as a “fact” witness. He is not conducting an assessment pursuant to s. 112. He made observations, reported what he saw, and he assisted the court with the children’s wishes and preferences.
[72] In the alternative, if it is found that I have mischaracterized the nature of Mr. Reid’s involvement, and that his affidavit amounts to an “assessment,” I find that the observations of Mr. Reid can be considered (without the necessity of finding exceptional circumstances) by applying the analysis I outlined in Bos v. Bos, 2012 ONSC 3425 at para. 26. (See also the reference to Bos in the following cases relied on by the applicant: Courville v. Courville, 2015 ONCJ 535 at para. 24; and Kirwan v. Kirwan, 2014 ONSC 3308 at para. 27.)
[73] In relation to Mr. Reid’s affidavit, he does offer some concerns from a clinical perspective, as set out in paragraphs 82 and 83. I have not relied on this clinical analysis for the purpose of the motion. Instead, I have relied on the facts as presented in the evidentiary record, from which I have drawn my own conclusions.
[74] Finally, during the argument of the motion, it was discussed, and all counsel agreed, that it would be appropriate for me to meet with C. for the purpose of explaining my order to him. This was not to be an “interview” to assist in determining his wishes and preferences, as that evidence is already before the court. A date was canvassed with counsel to do that, and that date is reflected in the order below. The anticipation is that this meeting would be on the record, with all counsel present (but not the parents). Also, if Mr. Reid is available, and wishes to attend, he can do so.
Order
[75] For reasons set out above, I make the following interim order:
The respondent shall have interim access to C. on the first three Saturdays of every four-week cycle starting January 21, 2017 from noon to 4:00 p.m., and C. shall have the option to extend each visit to up to 6:00 p.m. Further, the respondent shall have interim access alternate Wednesdays starting January 18, 2017 from after school, or if there is no school, then from 4:00 p.m., to 7:30 p.m.
In addition, C. may choose to visit with the respondent at such additional times as arranged between C. and the respondent, and the respondent shall advise the applicant as to any such arrangements.
Unless the applicant and respondent agree otherwise, the respondent shall pick up C. from his residence (or school on Wednesdays) and return C. to his residence for all access visits.
The respondent shall continue to have interim telephone access to C. on the same terms and conditions as specified in the order of Heeney J. dated February 24, 2016.
The respondent shall have the sole authority and responsibility to arrange counselling for C., with the focus of the counselling to be in assisting C. and the respondent to rebuild their relationship. The following terms and conditions apply to the counselling: a) in choosing a counsellor, the respondent shall rely on any recommendations made by the Children’s Lawyer; b) both the applicant and the respondent shall give first priority to attending any meeting as requested by the counsellor, and shall comply fully with any requests from the counsellor to sign consents, or any requests from the counsellor for information; c) C. shall attend all the counselling sessions that are arranged; d) the costs of the counselling shall be shared equally by the applicant and respondent, after applying any reimbursement available to either party through his or her employment.
The applicant is put on notice as to his responsibility to ensure compliance with this order. The applicant shall ensure that C. is ready for, and attends, all access visits and counselling as provided for in this order. Unless the parties agree otherwise, the applicant shall take C. to all his counselling sessions, and the respondent shall return C. either to his home or back to school, after each counselling session.
The applicant and respondent may tell C. about the access and counselling provisions contained in the order, but otherwise, except as approved in advance by the Children’s Lawyer, the applicant and respondent are prohibited directly or indirectly from providing C. and M. with a copy of the court’s order or reasons for the order or discussing with C. and M. the contents of the court order or reasons.
Paragraph 7 of this order does not in any way limit the discretion of the Children’s Lawyer to discuss the court’s reasons with C. and M. or to provide to C. and M. a copy of the reasons or a copy of the order.
This case is adjourned, before me, at 10:00 a.m. January 17, 2017 for the purpose of the court explaining the court order to C.
The request in the respondent’s motion for a police assistance order is adjourned sine die, without prejudice to the respondent’s right to return the motion back before me, based on events subsequent to this order, on at least 4 days’ notice, at 9:30 a.m., as arranged by the trial coordinator. Any affidavit material from each of the applicant or respondent on the return of the motion shall be limited to four pages, double-spaced, and shall deal only with relevant events subsequent to this order.
This order is made pursuant to the Children's Law Reform Act.
If the parties are unable to agree on costs, written costs submissions shall be forwarded to the trial coordinator, limited to three typed double-spaced pages (two pages for reply) plus any offers, authorities, time dockets and bills of costs, as follows: by the respondent within two weeks, any response by the applicant (or OCL) within two weeks thereafter, and reply, if any, within one week thereafter.
“Justice Victor Mitrow” Justice Victor Mitrow Date: January 13, 2017