Court File and Parties
COURT FILE NO.: FS-13-78194-00 DATE: 2017-04-21 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
NADIA SABRINA HOSEIN Michael Stangarone, for the Applicant Applicant
- and -
ANOOP SINGH DHAMOON Olena Brusentsova, for the Respondent Respondent
HEARD: October 20, 2016, at Brampton, Ontario Price J.
Reasons For Order
NATURE OF MOTION
[22] Nadia Hosein and Anoop Dhamoon separated on December 26, 2012, after an 11 year marriage. They continued living in the matrimonial home in Brampton for another three years, until Ms. Hosein began the present proceeding in June 2013.
[23] In her Application, Ms. Hosein claimed custody of the parties’ two children, spousal and child support, and sale of the matrimonial home, among other relief. On December 20, 2013, Ms. Hosein made a motion for the immediate sale of the home.
[24] There followed a series of temporary orders, which: (a) required Mr. Dhamoon to buy out Ms. Hosein’s interest in the home, of which Mr. Dhamoon’s parents were 50% owners, and each of Mr. Dhamoon and Ms. Hosein owned 25%; (b) granted the parties joint custody of their children; (c) directed an assessment of the children’s needs pursuant to s. 30 of the Children’s Law Reform Act and, pending completion of the assessment, ordered that the children reside principally with Mr. Dhamoon, so that they could remain in the matrimonial home, where they were accustomed to reside, subject to access by Ms. Hosein three weekends out of four, and every Wednesday.
[25] On June 17, 2014, Emery J. made an Order that the children remain principally resident in the matrimonial home.
[26] Ms. Hosein asserts that, beginning immediately after Emery J. made his temporary Order directing that the children remain in the matrimonial home, exclusive possession of which had been granted to Mr. Dhamoon, Mr. Dhamoon used the children’s principal residence with him as an opportunity to alienate the children from her. The eldest child, Aidan, who is 15 years of age, now refuses to communicate with Ms. Hosein.
[27] On September 21, 2016, Ms. Hosein moved for enforcement of Emery J.’s Order of September 17, 2014, for an up-date of Ms. Perlis’ s. 30 assessment, and for an order sanctioning Mr. Dhamoon for his breaches of Emery J.’s Order.
BACKGROUND FACTS
[28] Mr. Dhamoon and Ms. Hosein were married on January 19, 2002. They separated 11 years later, on December 26, 2012. They continued to reside separate and apart in the matrimonial home until Ms. Hosein began the present proceeding on June 25, 2013.
[29] There are two children of the marriage: (a) Aidan, who is now 15 years old (born December 6, 2001); (b) Sophia, who is 12 (born March 31, 2005).
[30] On January 20, 2014, Ms. Hosein made a motion for sale of the home. The parties agreed that the environment in the home was, by then, toxic.
[31] On November 26, 2013, Sproat J. requested the involvement of the Office of the Children’s Lawyer. The Children’s Lawyer declined his request.
[32] On March 18, 2014, Emery J. adjourned Ms. Hosein’s motion, on consent, and on March 27, 2014, André J. made an order requiring Mr. Dhamoon to purchase Ms. Hosein’s interest in the home, having regard to the fact that Mr. Dhamoon’s parents owned a 50% interest, and Mr. Dhamoon and Ms. Hosein each owned 25%.
[33] On September 17, 2014, Emery J. made a temporary order: (a) granting the parties joint custody of the children; (b) directing that the children remain principally resident in the matrimonial home, exclusive possession of which was granted to Mr. Dhamoon; (c) granting Ms. Hosein access to the children on three weekends out of four, and every Wednesday; (d) ordering Ms. Hosein to pay child support and to contribute to the children’s section 7 expenses; and (e) directing an assessment of the children pursuant to s. 30 of the Children’s Law Reform Act (“CLRA”).
[34] Among Emery J.’s principal considerations in ordering the children to be principally resident with Mr. Dhamoon was the fact that Mr. Dhamoon was to buy out Ms. Hosein’s interest in the home and continue residing there. He stated: The children have lived with their parents in the house continuously since 2010. It is the only home they know. It would seem that the status quo of both children living with the father at the house on Paddington Road should remain the foundation for any order relating to custody, access, and parenting. In circumstances like those on this motion, courts are reluctant to change the status quo where the children are settled into accustomed living situations unless there is cogent evidence of a good reason to order a change, or a serious concern about the ability of the primary caregiver: Bortolotto v. Bortolotto, 2002 CarswellOnt 1717 (Ont. Master) and Papp v. Papp, [1970] 1 O.R. 331 (Ont. C.A.).
[35] An additional consideration of Emery J.’s was what he found to be deficiencies in Ms. Hosein’s proposed parenting schedule. Justice Emery stated: I am generally more impressed with Mr. Dhamoon’s schedule for Ms. Hosein’s access to the children for two reasons. First, it is my view that Ms. Hosein’s access schedule contains too many variations, too many participants as back-up persons to pick up and care for the children after school, and too many moveable parts to make it work cohesively as a comprehensive arrangement. The parties agree that any plan for access must be the least disruptive to the routines of the children, and I commend them for recognizing that fact. It is not in the best interest of the children at this time for the parties to share parenting on a variation of the week about model unless there is better evidence from Ms. Hosein before the court. Second, I am taking into account evidence from Mr. Dhamoon’s affidavit in reply that Ms. Hosein depends upon the assistance of her mother and her father and his wife to support her plan for shared parenting. According to Ms. Hosein’s affidavit, her new townhouse is a 15 minute drive from the school of each child. Mr. Dhamoon has deposed in an affidavit in reply that Ms. Hosein has issues from time to time with her own mother which leaves them on non-speaking terms, sometimes for months. Further, Ms. Hosein’s mother does not reply. The reply evidence also discloses that Ms. Hosein’s father and his wife reside in the Niagara region. This evidence leads me to conclude that the supporting arrangements for Ms. Hosein’s parenting plan that depends upon her parents are not sufficient to make that plan feasible at this time. [Emphasis added]
[36] On December 17, 2015, André J. made a temporary order: (a) granting Ms. Hosein parenting time during the Christmas holiday; (b) directing Mr. Dhamoon to encourage and facilitate Ms. Hosein’s parenting time with the children; (c) implementing the recommendations made by Ms. Perlis, pending the return of the motion; and (d) adjourning the balance of the motion to August 24, 2016.
[37] On September 21, 2016, Ms. Hosein moved for the following extension of the relief sought by her in earlier motions: (a) granting her parenting time with the parties’ 12 year old daughter, Sophia Dhamoon, born March 31, 2005 (“Sophia”), either on a 50/50 basis, as recommended by the s. 30 Assessor, Ms. Perlis, or in accordance with Emery J.’s order dated September 17, 2014; (b) requesting an up-dated assessment by Ms. Perlis, who released her initial report in November 2015; and (c) sanctioning Mr. Dhamoon for his ongoing breaches of court orders and for alienating the children from Ms. Hosein.
[38] Mr. Dhamoon requested an adjournment of Ms. Hosein’s motion on the ground that Ms. Hosein requested new relief on September 21, 2016. He additionally argued that the court should not hear Ms. Hosein’s motion until she paid the costs previously ordered. The court adjourned the hearing of Ms. Hosein’s motion from September 28 to October 20, 2016, to permit Mr. Dhamoon to deliver responding material, and then heard the motion on that date. The court reserved its decision until today, and now delivers its decision and reasons.
ISSUES
[39] The court must determine the following issues: (a) Should Ms. Hosein’s motion be dismissed owing to her failure to comply with past costs orders, or stay the motion until she complies? (b) Has Mr. Dhamoon breached Justice Emery’s parenting order and, if so, what sanction should be imposed? (c) Should Ms. Perlis be asked to update her assessment report? (d) Should Ms. Hosein’s parenting time with the children, pursuant to Justice Emery’s Order dated September 17, 2014, be enforced?
PARTIES’ POSITIONS
a) Should the court dismiss Ms. Hosein’s motion, or stay the motion until she pays the past costs orders?
Mr. Dhamoon’s position
[40] Mr. Dhamoon asserts that Ms. Hosein is in breach of the court’s past costs orders and argues that she should not be permitted to proceed with a further motion until those orders are paid.
Ms. Hosein’s position
[41] Ms. Hosein submits that it is in the interests of the children that the motion be heard, and that they should not be penalized for her inability to pay the costs orders.
b) Has Mr. Dhamoon breached Justice Emery’s parenting order and, if so, what sanction should be imposed?
Ms. Hosein’s position
[42] Ms. Hosein submits that immediately after Emery J.’s Order was issued, Mr. Dhamoon breached it, by: (a) failing to ensure that the children attended court ordered access visits with their mother; (b) coaching the children to send letters to their mother stating that they would not attend for the court ordered parenting time; (c) discussing the Order with the children without consulting Ms. Hosein; (d) unilaterally choosing a therapist who was not readily available to provide counselling; and (e) unilaterally registering the children for camp and other activities which encroached on their mother’s parenting time with them.
Mr. Dhamoon’s position
[43] Mr. Dhamoon argues that the children’s relationship with Ms. Hosein began to deteriorate before the parents separated, that he never prevented Ms. Hosein from exercising access to the children, and that it was the children themselves, and particularly Aiden, who consistently refused to spend time with her. Mr. Dhamoon submits that Ms. Hosein failed to cooperate with his efforts to arrange reunification counselling for her and the children, and breached Emery J.’s Order herself by failing to contribute to the children’s s. 7 expenses.
c) Should the court ask Ms. Perlis to update her s. 30 assessment?
Ms. Hosein’s position
[44] Ms. Hosein submits that, having regard to the parties’ failure to comply with Ms. Perlis’ recommendations, an updated report should be requested, so that up-to-date recommendations can be made to deal with the current situation. She argues that because Mr. Dhamoon has alienated the children, and especially the parties’ son, from her, he should be required to bear the cost of the reassessment as a sanction for his conduct.
Mr. Dhamoon’s position
[45] Mr. Dhamoon argues that Ms. Perlis exhibited bias when she produced an expanded report based on information from Ms. Hosein that she had not reviewed with Mr. Dhamoon, and that the court should renew its request for involvement of the Office of the Children’s Lawyer.
d) Should the court enforce Justice Emery’s 2014 order regarding Ms. Hosein’s parenting time?
Ms. Hosein’s position
[46] Ms. Hosein argues that Mr. Dhamoon has failed to comply with Justice Emery’s order and has made no effort to implement the court ordered parenting plan. She states that Mr. Dhamoon has taken active steps to defeat the terms of the order.
Mr. Dhamoon’s position
[47] Mr. Dhamoon argues that it is Ms. Hosein who has not complied with Justice Emery’s order, by not cooperating with his attempts to organize the court-mandated therapy sessions for the children. Mr. Dhamoon further argues that Ms. Hosein has not been paying the appropriate amount of child support or section 7 expenses.
ANALYSIS AND EVIDENCE
a) Should the court dismiss or stay Ms. Hosein’s motion until she complies with the past costs orders?
Legislative framework
[48] Rule 14(23) of the Family Law Rules provides as follows:
14. Motions for Temporary Orders (23) FAILURE TO OBEY ORDER MADE ON MOTION - A party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this sub-rule does not apply, and the court may on motion, in addition to any other remedy allowed under these rules, (a) Dismiss the party’s case or strike out the party’s answer or any other document filed by the party; (b) Postpone the trial or any other step in the case; (c) Make any other order that is appropriate, including an order for costs. (My emphasis)
Jurisprudence
[49] In Diciaula v. Mastrogiacomo (2009), Boswell J. considered motions by the respondent to vary access provisions from one previous order and to vary support provisions in another. The applicant moved to strike, stay or dismiss the respondent’s motion to vary. Boswell J. made an order staying the motion pending, among other steps, a plan for the repaying of outstanding arrears and costs and payment of the applicant’s costs of responding to the motion. Later, when the respondent took no steps to comply with his earlier order, Boswell J. dismissed both of the respondent’s motions pursuant to Rules 1(8) and 14(23) of the Family Law Rules. He stated: Rule 1(8) of the Family Law Rules provides that the Court may dismiss a party’s proceeding, or make such other order as the Court considers necessary for a just determination of the matter where a party has failed to obey an order in this or a related case. Rule 14(23) of the Family Law Rules provides that a litigant is not entitled to any further order from the Court where the litigant is in breach of an outstanding order made on motion. The application of the Rule is mandatory, unless the Court orders that it not apply. The onus is on the Respondent to show that the Rule ought not to apply. It takes an extraordinary event to trigger the “unless” provisions of the Rule: see Gordon v. Starr (2007), 42 R.F.L. (6th) 366 (S.C.J.), 2007 ONSC 35527 (Emphasis mine)
[50] In Gordon v. Starr (2007), which Boswell J. relied on, although not a case concerning access, J. W. Quinn J. of this Court stated: Where a party has not complied with an order that was made on motion, relief under subrule 134 (23) is mandatory, “unless the court orders that this subrule does not apply.” Costs orders are captured by this subrule. The applicability of subrule 14 (23) to costs orders is consistent with the view of Justice Robert S. Montgomery in Canadian Express Ltd. v. Blair (1992), 11 O.R. (3d) 221, 13 C.P.C. (3d) 375, 1992 ONSC 7535 (with which Justice Douglas J.A. Rutherford agreed in Piskor v. Piskor, 42 R.F.L. (5th) 100, 2003 ONSC 53692 at paragraph [5], “that a cost order must be paid before [a] party can proceed further before the court.” [Emphasis mine]
[51] In Pepper v. Frankum (2007), 2007 ONCA 429, the Court of Appeal for Ontario allowed an appeal from a motion judge’s refusal to grant a father leave to bring a motion for access on the ground that the father had failed to pay a previous costs order. The Court held that the court could bar a parent from seeking access to a child on the sole ground of the parent’s failure to pay costs, but that it was an error to do so without considering certain relevant factors. The Court held: Moreover, in our view, it is an error in law to bar a parent from seeking access to a child on the sole ground of unpaid costs without considering the amount of costs, the reasons they were unpaid, and the parent’s ability to pay. The motion judge did not turn his mind to these considerations.
[52] In Bazinet v. Da Costa (2001), Belch J. held that the non-payment of costs did not preclude the wife in that case from proceeding with a motion for custody and access. The costs order was $7,547.78, and the wife had offered to pay $50 monthly until the costs were fully paid, or a lump sum of $1,000. She cited her financial circumstances as the reason for her not being able to pay more. The Court concluded that an appropriate solution was to put in place a payment schedule, and to order that, provided the schedule was adhered to, the mother’s motion would not be stayed. The reasoning in Bazinet v. DaCosta is consistent with the Court of Appeal’s decision in Pepper v. Frankum, and turned on the justification for non-payment.
[53] In Lidder v. Lidder (2009), 2009 ONSC 35603, the husband failed to comply with a costs order for $3,500 imposed a year earlier, which also required him to pay child support. Mr. Lidder did not offer any reason for not having paid the costs, other than arguing that a later agreement between the parties had vitiated the order. The court rejected that explanation and found no evidence that Mr. Lidder was unable to pay the costs ordered. It therefore dismissed his motion to vary access, without prejudice to his right to re-apply once he paid the outstanding costs.
Applying the legal principles to the facts of this case
[54] Ms. Hosein was ordered to pay costs in the amount of $7,624.19 by December 10, 2014. She paid $4,850.00 of that amount. She provided post-dated cheques for the balance, in the amount of $2,874.19.
[55] Ms. Hosein produced evidence as to why she had not paid the costs in full. She is in a precarious financial situation and Mr. Dhamoon’s failure to comply with court orders and the damage that this did to Ms. Hosein’s relationship with the children rendered the litigation more expensive than it otherwise would have been. I am satisfied that Ms. Hosein has substantially complied with the costs orders made against her, and that her payments represent the best she could do in her financial circumstances.
[56] It is important to note that Ms. Hosein does not seek to vary Emery J.’s Order, except as an alternative to enforcement of the Order. In the cases cited by Mr. Dhamoon, the applicant was seeking to vary an order. Justice Emery’s Order is presumed to be in the best interests of the children. It would not be appropriate to grant Mr. Dhamoon a dispensation from complying with the access provisions of that order on the ground that Ms. Hosein has not paid his costs of obtaining that order. It is not surprising that Ms. Hosein should find it unfair to be paying the costs of an order whose substantive terms Mr. Dhamoon has breached.
b) Did Mr. Dhamoon breach Emery J.’s parenting order and, if so, what sanction should be imposed?
The Law
[57] Rule 1(8) of the Family Law Rules sets out the powers a court may exercise when it finds a person fails to obey an order, including: (a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order.
[58] Rule 2 of the Family Law Rules provides guidance as to how the Family Law Rules as a whole should be interpreted. It provides, in part: 2(2) The primary objective of these rules is to enable the court to deal with cases justly. (3) Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. (4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. (5) The court shall promote the primary objective by active management of cases, which includes, (a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial; (b) encouraging and facilitating use of alternatives to the court process; (c) helping the parties to settle all or part of the case; (d) setting timetables or otherwise controlling the progress of the case; (e) considering whether the likely benefits of taking a step justify the cost.[Emphasis added.]
[59] The Family Law Rules affords judges a wide discretion to make an order that is necessary for a just determination, including an order for costs. See Clark v. Clark, 2014 ONCA 175 at para 66.
Analysis
[60] I find that Mr. Dhamoon breached Emery J.’s Order in the following ways: (a) On September 19, 2014, two days after Justice Emery’s Order was released, the children “hand wrote” letters to their mother. The letters were delivered to Ms. Hosein in an envelope addressed to her in Mr. Dhamoon’s handwriting. I agree with Ms. Perlis’ conclusion that Mr. Dhamoon likely influenced the children to write the letters. She states at page 33 of her report: …I have heard nothing that would make me think Mr. Dhamoon went to any lengths to facilitate access. In fact, I believe he directed the children to hand write notes the day after the Court judgment was released stating that “they were not comfortable with access”. This may be a serious act of contempt for a court Order. [Emphasis added]. (b) Page 6 of Ms. Perlis’ Report states that Aidan told his mother that he and Sophia did not have to follow the court Order; and that “we can do what we want after we turn twelve”. It is evident that Mr. Dhamoon was unhappy with the Order and immediately took steps to disobey it. He improperly influenced Aidan and Sophia to believe that they did not have to follow the court Order, and that their mother was forcing them to do so. (c) Mr. Dhamoon failed to ensure that the children obeyed the orders of André J. and Emery J. He imposed restrictions on Ms. Hosein’s access to Sophia in breach of the two orders. He offered no legal justification for doing so. His conduct is not justified by a supposed disruption of Sophia’s routine, especially having regard to the proximity of Ms. Hosein’s home to the children’s school. (d) Mr. Dhamoon delayed the reunification therapy that Ms. Perlis had recommended and undermined the therapy once it began. Ms. Hosein’s lawyer wrote to Mr. Dhamoon’s lawyer three times in November 2015, suggesting counsellors to implement Ms. Perlis’ recommendation. On November 26, 2015, Mr. Dhamoon advised Ms. Hosein directly that he had unilaterally chosen Annie Luu as the therapist, even though the two therapists Ms. Hosein had suggested were available one and two months before the first appointment made with Ms. Luu. Once Ms. Luu began therapy, Mr. Dhamoon cancelled appointments with her. (e) Mr. Dhamoon’s lawyer later procured a second therapist, Dr. Sharon Verniero, who apparently lacked specific expertise in dealing with alienation, and who agreed to take on the case without first obtaining Ms. Hosein’s consent to her selection. Mr. Dhamoon later had contact with Ms. Verniero before the lawyers’ first conference call with her, contrary to the agreement that the parties’ lawyers had reached to have a conference call with the therapist before either of the parties spoke with her. (f) Mr. Dhamoon cancelled a therapy session on August 2, 2016, the same morning it was to have taken place, and did not reschedule it until August 23, 2016, 35 days after the previous session had taken place. (g) Mr. Dhamoon failed to facilitate Aiden’s visits with his mother as the court had ordered, by not insisting that Aidan attended such visits and by failing to use methods available to him to encourage Aidan’s relationship with his mother. As of the date of Ms. Hosein’s affidavit, Aidan had not attended a Wednesday dinner with her in ten months. (h) During the three months between the hearing of the motion before Emery J. and the release of Emery J.’s decision, Ms. Hosein was able to see Aidan only twice. She was unable to see him at all after the Order was issued, despite repeat requests and attempts. She saw Sophia a handful of times, but not for scheduled parenting time, and she could not reach Mr. Dhamoon to make arrangements despite repeated efforts.
[61] It is noteworthy that Mr. Dhamoon “strongly opposes” Ms. Hosein’s request that Sophia reside with her every Friday after school until Monday morning, notwithstanding that this is what Emery J.’s Order contemplated.
[62] The penalty imposed should be designed to achieve the primary objective of the Order that has been breached and promote compliance. I agree with counsel for Ms. Hosein that an award of costs against Mr. Dhamoon is appropriate.
c) Should Ms. Perlis be asked to update her s. 30 assessment?
[63] Ms. Hosein has requested an Order directing that Ms. Perlis be asked to update her assessment report. Mr. Dhamoon asks that the court, instead, renew its request for involvement of the Office of the Children’s Lawyer. For the reasons that follow, I have concluded that it is more likely to benefit the children to ask Ms. Perlis to update her report.
Legislative framework
[64] The Children’s Law Reform Act provides as follows:
Assessment of needs of child 30. (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (1).
When order may be made (2) An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child and with or without a request by a party to the application. R.S.O. 1990, c. C.12, s. 30 (2).
Agreement by parties (3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person. R.S.O. 1990, c. C.12, s. 30 (3).
Consent to act (4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court. R.S.O. 1990, c. C.12, s. 30 (4).
Attendance for assessment (5) In an order under subsection (1), the court may require the parties, the child and any other person who has been given notice of the proposed order, or any of them, to attend for assessment by the person appointed by the order. R.S.O. 1990, c. C.12, s. 30 (5).
Refusal to attend (6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (6).
Report (7) The person appointed under subsection (1) shall file his or her report with the clerk of the court. R.S.O. 1990, c. C.12, s. 30 (7); 2009, c. 11, s. 13 (1).
Copies of report (8) The clerk of the court shall give a copy of the report to each of the parties and to counsel, if any, representing the child. R.S.O. 1990, c. C.12, s. 30 (8); 2009, c. 11, s. 13 (2).
Admissibility of report (9) The report mentioned in subsection (7) is admissible in evidence in the application. R.S.O. 1990, c. C.12, s. 30 (9).
Assessor may be witness (10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application. R.S.O. 1990, c. C.12, s. 30 (10).
Directions (11) Upon motion, the court by order may give such directions in respect of the assessment as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (11).
Fees and expenses (12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1). R.S.O. 1990, c. C.12, s. 30 (12).
Idem, proportions or amounts (13) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay. R.S.O. 1990, c. C.12, s. 30 (13).
Idem, serious financial hardship (14) The court may relieve a party from responsibility for payment of any of the fees and expenses of the person appointed under subsection (1) where the court is satisfied that payment would cause serious financial hardship to the party. R.S.O. 1990, c. C.12, s. 30 (14).
Other expert evidence (15) The appointment of a person under subsection (1) does not prevent the parties or counsel representing the child from submitting other expert evidence as to the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (15).
Section amendments with date in force (d/m/y) 1990, c. C.12,s. 81 - see: Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 - 31/12/2011. 2009, c. 11, s. 13 (1, 2) - 14/05/2009
Jurisprudence
[65] Counsel for a child is to be a zealous advocate, not a guardian acting in the child’s best interests. See Courts of Justice Act, R.S.O. 1990, c. C.43, s. 89(3.1). Where alienation is found, the child’s views have been accepted to be the views of the alienating parent. See Fielding v. Fielding, 2013 ONSC 5102, para. 168; Scervino v. Scervino, 2011 ONSC 4246, para. 39. In such circumstances, the appointment of child’s counsel may not be appropriate or in the child’s best interests.
[66] In Haywood v. Haywood (2010), 2010 ONSC 5615, McGee J. concluded that the father’s request for appointment of the OCL at an interim motion was not appropriate for the following reasons: Requesting counsel for a child, who has so clearly been conscripted by a parent to meet his needs, is to risk sacrificing the child's own needs. Children are to be protected by the court as much as possible. In the heat of litigation it is easily forgotten that every child deserves the love of both parents. A parent who offers such love on terms - that the other parent be denied - is no parent, and deserves no quarter in the litigation.
[67] The Court found that the father had “allied his daughter and engaged her in his cause to denigrate the mother.” In the present case, I have made a similar finding of alienation against Mr. Dhamoon.
[68] In Fiorito v. Wiggins (2014), 2014 ONCA 603, the Ontario Court of Appeal addressed the involvement of the OCL being requested by motion within the context of a trial judge’s finding that mother had engaged in parental alienation. The request for OCL involvement was dismissed. The Court stated that: “[i]f, as seems likely, the children take the position they want to live with their mother, counsel for the children would in large part be mirroring the submissions I would expect from the mother” (emphasis added). Pardu J.A. noted the complexity involved with appointing the OCL: It may be that the children would have to be investigated separately, given the suggestions on the evidence that the oldest child is more aligned with the mother, and influences the others to take the same position. It may be that the children have different views and that counsel for the children would have to take different positions for different children. [Emphasis added]
[69] The Court concluded: [L]ittle weight may ultimately be given to the children's positions if their preferences are the result of the mother's deliberate attempts to ruin the children's relationship with their father…. [C]ourt will only ask the O.C.L. to intervene if the Court is satisfied it is necessary to do so to ascertain the wishes of the child and/or provide professional input, usually from a social worker, in order to permit the Court to better ascertain what is in the best interest of the child [Emphasis added].
[70] The views and preferences of an alienated child are not independent views and preferences: With respect to the children's views and preferences, where they can be ascertained, the difficulty in an alienation case is determining who … is really speaking through the child's words, and whose views the child is really presenting. If I accept that there has been parental alienation in this case, as I do, then the children's preferences are not her own, but are those of her mother or other maternal family as she has been convinced. See Pettenuzzo-Deschene v. Deschene, 2007 ONSC 31787, para. 55.
[71] In L. (J.K.) v. S. (N.C.) (2011), 2011 ONSC 105 (S.C.J.), the father alienated the children and brought a motion to appoint a lawyer to represent their interests. The Court dismissed the father’s request, finding that: … it is not in the best interests of LS to have a lawyer appointed to represent his interests at this time. He is still in a transitional stage in restoring his relationship with his mother and to have the Office of the Children's Lawyer or another court appointed lawyer become involved in this matter at this stage will simply draw LS back into the situation where he is having to choose between his parents.
Applying the legal principles to the facts of this case
[72] As noted above, Sproat J. requested the involvement of the Office of the Children’s Lawyer on November 26, 2013. The Children’s Lawyer declined his request. The OCL normally requires six weeks in order to respond to a request and, if it accepts the request, normally requires a further three months to complete its investigation. If the parties do not accept its recommendations at a disclosure meeting, the OCL often requires a further month to prepare a report.
[73] There is no reason to believe that that the OCL is more likely now than it was in 2013 to accept a request from the court. Ordering the assessment to be conducted by Ms. Perlis will eliminate this uncertainty and the delay that would be attendant upon the court making a further request for OCL involvement.
[74] In the present case, I find, as Ms. Perlis did, that Mr. Dhamoon has engaged in at least passive parental alienation, and that Aidan is aligned with him and has been conscripted to meet his father’s emotional needs. Mr. Dhamoon has involved both children in this litigation, has told them about the proceeding, and has informed them that they can request the OCL to “fight dirty”.
[75] The OCL is not necessary in this case to ascertain the wishes that the children have expressed. Aidan has made clear what he intends to say in support of his father’s position in this case. The appointment of the OCL would further implicate the children in their parents’ conflict and risk further harm to them. A request for OCL involvement should not be available for the asking. In high conflict cases, children should be protected, to the extent possible, from the contest being waged over their future care and custody. See Sickinger v. Sickinger, 2009 ONSC 28203, para. 36; Reynolds v. Reynolds, 1996 ONSC 7273, para. 3.
[76] The OCL has already declined to become involved and the parties instead agreed to proceed with a section 30 assessment. Enlisting Ms. Perlis’ input is the least disruptive means by which the Court can obtain up-to-date information as to the impact that Mr. Dhamoon’s response to Emery J.’s Order has had on the children and as to the best means of mitigating the harm this has done.
[77] There has already been significant delay in remedying the damage that has been done to the children’s relationship with their mother. An update of Ms. Perlis’ assessment is the most expeditious means by which the court can obtain up-to-date information and expert guidance as to what intervention will best address Mr. Dhamoon’s breach of court orders and what change, if any, in the custody and parenting arrangement will most likely further the best interests of the children.
d) Should Ms. Hosein’s parenting time with the children, pursuant to Justice Emery’s Order dated September 17, 2014, be enforced?
[78] This is not a motion to change Emery J.’s September 2014 Order. Therefore, Emery J.’s Order is still in effect. I recognize that the Order may now be difficult to enforce in light of Aiden’s increasing age. However, each party has duty to comply with court orders or else follow the proper procedure to have a court order varied.
[79] Misconduct by one parent toward another, and a deliberate breach of the court’s orders concerning custody, access, and the residence of the children, when it impairs the ability of the other spouse to exercise access to the children, cannot help but be injurious to the long term interests of the children. The separation of parents deprives children of their major source of security, derived from an intact family. That security can only be replaced by the security they derive from strong and healthy relationships with each parent separately. Children’s positive self-image, crucial to their ability to adjust successfully to the changes in their family, depends in large measure on the positive regard they have toward each of their parents. If their respect for either parent is diminished, their regard for themselves may also suffer.
[80] I will, for the sake of the parties, review their evidence with reference to the factors set out in s. 24 of the CLRA, which must be considered when determining what parenting order is in the best interests of the children.
(a) Love, affection, and emotional ties
[81] For the reasons discussed under the children’s views and preferences, below, I find that the children have an underlying love and affection for both parents and that Aiden’s emotional ties with his mother have been strained by the tension between their parents and by Mr. Dhamoon’s failure to facilitate the repair of Aiden’s relationship with his mother and her access to him.
(b) Facilitating contact with the other parent
[82] The court, when making a custody and access order, whether pursuant to sections 20 and 24 of the CLRA, or pursuant to section 16(10) of the Divorce Act, “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each parent who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests. See Young v. Young, above, at pp. 46, 117-18.
[83] As for how the parties should share parenting of the children, I refer to the comments of McLachlin J., as she then was, in Young v. Young, [1993] 4 S.C.R. 3, where she discussed the “maximum contact principle,” in the context of an application under the Divorce Act. Justice McLachlin, speaking for the majority of the Court, said: ... s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982) (at pp. 117-18). [Emphasis added.]
[84] Unlike the Divorce Act, which the Court applied in Young v. Young, [1993] 4 S.C.R. 3, the CLRA sets out specific factors that the court should consider when determining what is in a child’s best interests. The CLRA does not include the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, as s. 16(10) of the Divorce Act does. Nevertheless, s. 20(1) and (4) of the CLRA require the court, if it finds that maximum contact with both parents is not in the child’s best interests, to explain why this is so. See Wiedrick v. LeMesurier, 2006 ONSC 919, per Wood J.
[85] A significant factor for the Court to consider in seeking to maximize each parent’s contact with the children is the role that the parents’ extended families are likely to play under any parenting regime that the Court imposes.
[86] I have found that Mr. Dhamoon undermined Aiden’s relationship with his mother and failed to facilitate her access to the children, as Emery J.’s Order required. If Mr. Dhamoon’s denigration of Ms. Hosein continues, it will be increasingly detrimental to the children’s regard for her, both as role model and a source of security.
[87] Mr. Dhamoon has not facilitated the children’s access to Ms. Hosein. As Ms. Perlis notes at page 8 of her report, Ms. Hosein reported that neither Mr. Dhamoon nor his parents had ever driven them to Ms. Hosein’s house. He also had never declared to the children, in Ms. Hosein’s presence, and in front of their grandparents, that they had to go with their mother.
(c) The children’s views and preferences
[88] The children are 12 and 15 years old. Their views and preferences should be taken into account in the decision as to the parenting arrangements. In the present case, however, the views of the children, and especially Aiden’s, have been influenced by Mr. Dhamoon to an extent that they cannot be considered to reflect their own preferences, freely arrived at.
[89] As Ms. Perlis notes at page 17 of her report, Aidan told her that he did not want to visit his mother because “he doesn’t feel a connection with his mother and because he believes she will take him to malls and all manner of places he doesn’t want to go to.” Ms. Perlis notes that his fears seem to have no basis in experience.
[90] Sophia visits her mother erratically, but usually every other weekend. Sophia sets her own pick-up and drop-off times, which tend to be around 11:00 a.m. on Saturdays with a return late afternoon on Sunday.
(d) Ability and willingness of each parent to provide the children with guidance and education, the necessaries of life, and to meet any individual needs they have
[91] Ms. Hosein has good and stable employment in a finance department. Ms. Perlis visited her in her apartment and found it to be spacious, neat, roomy, and very close to the children’s home with their father and to their schools and friends. There is ample room for both children to stay over.
[92] There is also ample space for the children at the former matrimonial home. Each of the children has a bedroom which is colourfully decorated and reflects the child’s interests and talents. There is ample living space and a room for Sophia to practice her gymnastics.
[93] Ms. Perlis observed Ms. Hosein with Aidan during one visit at Ms. Perlis’ office with Sophia present. Ms. Perlis notes, at page 8 of her report, that Ms. Hosein understood the children’s individual qualities and characteristics, and their needs. She described their early years clearly. Ms. Perlis was impressed with the fact that there was a good mother/children bond, in spite of the current situation.
[94] According to Ms. Hosein, Mr. Dhamoon has anxiety leaving the house and can be fragile and fearful. He required almost five years of therapy to recover from Post-Traumatic Stress Disorder, which he suffered following a workplace assault. He was diagnosed with an acute anxiety disorder. He cut himself, which left scars on his arms that remain today. He would sometimes hover on a street corner for as long as three hours watching over Aidan as a played in a park. Ms. Hosein believes that the children, and especially Aidan, are protective of their father.
[95] Ms. Perlis concludes, at page 16 of her report, that Aidan has issues with anxiety that are keeping him tightly bound to his home and father and which might be impairing his freedom to form relationships with his peers. He does not sleep away from the house. Ms. Perlis notes that Mr. Dhamoon flatly denies that Aidan is anxious or that he picked up any anxiety from him when he was home from work for almost 5 years with a severe anxiety disorder. Ms. Perlis concludes that this is unlikely. She observes that “Someone with that level of anxiety that requires them to be off work for nearly five years, and attend for a lot of therapy, would necessarily transmit this anxiety, even unconsciously.”
[96] While Mr. Dhamoon asserts that the children’s relationship with their mother began to deteriorate before the parties’ separation, Ms. Hosein asserts that Mr. Dhamoon was turning the children against her at that time. She began to stay away, and every time she returned Mr. Dhamoon would loudly proclaim, “Your mom left”, and, when she returned, “She has returned after leaving us”, causing the children to believe that their mother was abandoning them. According to Ms. Hosein, Mr. Dhamoon began taking the children from the home during the evening without explanation.
[97] Further, according to Ms. Hosein, Mr. Dhamoon precipitated yelling between the parties, threatening to beat up or smash the car and go after the children of a man that Ms. Hosein was having an emotional relationship with. She attended at the police station several times, and the CAS were involved. In response, Mr. Dhamoon told the children, “Your mom tried to get me arrested.” Two nights before Ms. Hosein left the home permanently, Mr. Dhamoon allegedly spit on her and damaged her car.
[98] Ms. Perlis makes the following observations about Aiden at page 22 of her report: What Aidan’s relationship was like with his mother when his father was a stay at home dad, and his mother worked for those five years, is unknown. Now, he appears to feel no concern for her, or any empathy towards her, and this may reflect negative feelings he has internalized from his father towards his mother. A youth like Aidan, who seems to be otherwise emotionally intact, would naturally have feelings for his own mother unless something or more than one thing or event has interfered with them along the way. It is not a positive or healthy sign for Aidan that he lacks this. Having a hardened hart at age 13, especially to one’s own mother, may be a sign that his father’s parenting of him has not been as good as Mr. Dhamoon believes it to be…. Mr. Dhamoon prides himself on being an attentive and supportive parent to his children and meeting their needs. It seems that he does not view the lack of a positive relationship between Aidan and his mother with alarm for Aidan’s future emotional and social well-being. I would suggest that this is the one area of Aidan’s life that will directly affect his growth and that more parental energy should be directed to this than to homework, Aidan’s peer relationships, extracurricular activities like soccer and his general sense of recreation. The damage from the lack of a positive relationship is life long, but not readily clear when a thirteen year old seems to be functioning well…. The lack of attachment to his mother puts Aidan at risk of problems regarding trust, intimacy and mutuality in future relationships with females, and particularly when seeking partnership with a long term mate. It is short sighted to focus on day to day living, ignoring the problems between mother and son, and failing to take strong action to establish a significant bond between Aidan and his mom. Failure to re-connect with his mother may deprive his future life partner of a relationship with her mother in law and will deprive his children of the care and attention of a grandmother, which Aidan receives almost every day from his grandmother.
[99] While both Mr. Dhamoon and Ms. Hosein are able to attend to the children’s immediate day-to-day needs, I find that Ms. Hosein is better equipped to meet the emotional needs of the children. I find that Mr. Dhamoon has proved himself to be incapable of managing Aidan’s behaviour in a way that will restore Aidan’s relationship with his mother. This creates a serious risk to Aidan’s long term well-being.
[100] Ms. Perlis states, at page 25 of her report: It was an error, in my belief, for Mr. Dhamoon not to insist that his children visit their mother right from the beginning of the separation…. Unfortunately, Mr. Dhamoon, by the time he presented for the Assessment, was faced with a strong and persistent refusal to visit by his son for well over a year and he seems utterly incapable of remedying it…. He claims to have “told” Aidan to visit, however, clearly didn’t follow through with consequences of any magnitude. In the disclosure meeting, Mr. Dhamoon stated that he sent Aidan “to his room” and applied consequences, unspecified, and that he was vigorously demanding that Aidan visit. I am skeptical of this as Mr. Dhamoon didn’t relay this to me in over 6 hours of interviews. This would have been the first thing a parent in the position of Mr. Dhamoon would have said to me, not the last. Mr. Dhamoon did state that he has consistently “told” Aidan to visit however, I suspect not in a firm way at all, despite the fact that Mr. Dhamoon stated that he was an authoritative parent to his kids and was in control of parental decision-making…. Mr. Dhamoon appears to exercise little authority over his children in situations that are unwanted by the children. Clearly, this has played a role in the failure to visit. Apparently Aidan was “encouraged” to visit, but not required. No consequences were applied and I believe no strong pressure was put on him.
[101] I agree with Ms. Perlis’ conclusions in this regard. I find that Mr. Dhamoon failed to take the steps that were available to him to insist that Aidan conform to the access that the court granted to Ms. Hosein.
f) Plans proposed for the child’s care and upbringing
[102] Ms. Hosein has remedied some of the deficiencies that Emery J. found in her parenting plan at the time when he made his temporary and without-prejudice order. Ms. Perlis states, at page 26 of her report: Yes, there were some instrumental difficulties with the plan Ms. Hosein was assembling for after care and this seemed to be a factor in Justice Emery’s decision. Nevertheless, she now lives in the neighbourhood of the school and she may be able to reinvent her care arrangements if there is some certainty that the children will actually adhere to a schedule. There is no point in organizing this unless there is an extreme change in the attitude and direction of Mr. Dhamoon regarding both Aidan and Sophia. It may be that Ms. Hosein will seek sole custody at a trial or an entirely different parenting plan – that will have to be seen.
[103] If the court were considering a change in the parenting schedule of the children at this time, it would require additional evidence as to the parenting plans of each parent.
g) Permanence and stability of each family unit
[104] Both parents have established family units that are, for the foreseeable future, permanent and stable.
h) The ability of each person applying to act as a parent
[105] I find that, subject to the comments above concerning Mr. Dhamoon’s failure to facilitate Ms. Hosein’s access to Aidan, each parent is able to act as a parent to the children. The parties will benefit from an up-dated s. 30 assessment to ascertain the current needs of the children and the ability of the parents to meet their needs, in light of the changed circumstances that Mr. Dhamoon’s non-compliance with Emery J.’s Order has created.
CONCLUSION AND ORDER
[106] For the foregoing reasons, it is ordered that:
Ms. Hosein shall forthwith request an updated s. 30 assessment from Ms. Perlis. She and Mr. Dhamoon shall contribute equally to the cost of the assessment. Both parties shall co-operate fully in the assessment. If there is any failure to do so, either party may apply to the court for directions, which may be in the form of a motion, on short notice, to be heard by me between 9 and 10 a.m. on a day when I am presiding, to be arranged in advance with my judicial secretary.
Ms. Hosein shall forthwith arrange therapy for herself and Aidan, with a therapist of her choice, as described by Ms. Perlis at page 42 and 43 of her report. The parties shall contribute equally to the cost of the therapy. Mr. Dhamoon shall ensure that Aidan attends regularly for all appointments. In the event of any failure by him to do so, Ms. Hosein may apply to this court for a sanction, by motion before me between 9 and 10 a.m. on a date when I am presiding, to be arranged in advance with my judicial secretary.
The parties shall comply strictly with the access ordered by Emery J. on September 17, 2014, with Ms. Hosein’s mid-week access to resume on Wednesday, April 26, 2017, and her weekend access to resume on Friday, April 28, 2017.
Mr. Dhamoon shall pay Ms. Hosein’s costs of this motion, in an amount to be determined by me on May 25, 2017.
The parties shall re-attend before me on Thursday, May 25, 2017, to provide evidence that this Order has been implemented, to make submissions regarding summer access, and to make oral argument regarding the amount of costs to be paid by Mr. Dhamoon. No further motion shall be brought until the issues referred to in this paragraph are determined.
The parties have leave to deliver additional evidence on the issues to be addressed on May 25, 2017. They shall submit written arguments on costs, not to exceed 4 pages and a Costs Outline, by May 19, 2017.
Price J.
Released: April 21, 2017