Stow v. Davidson, 2017 ONSC 6915

CITATION: Stow v. Davidson, 2017 ONSC 6915

COURT FILE NO.: FC-09-587-2

DATE: 2017/11/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Warren John Dennis Stow, Applicant

-and-

Cynthia Marjorie Davidson, Respondent

BEFORE: Madam Justice D. Summers

COUNSEL: Tanya C. Davies, for the Applicant

Rodney B. Cross, for the Respondent

HEARD: October 3, 2017

ENDORSEMENT

1The primary relief sought in this motion by the Applicant, Warren Stowe, is an order requesting the involvement of the Office of the Children’s Lawyer (“OCL”). This interim step is brought in the context of Mr. Stow’s Motion to Change Justice Polowin’s Order dated January 13, 2012, to obtain more generous access time with Georgia Blanche Davidson, born October 23, 2008. The changes sought there are lengthy and detailed as are the changes he seeks to make to the provisions that govern communication between the parties.

2This Notice of Motion advances the following claims:

1. That the Office of the Children’s Lawyer be appointed to represent the child, Georgia Blanche Davidson, born October 23, 2008 and to report back to the court with respect to the best interests of the child as it relates to parenting arrangements.

2. That the Respondent, Cynthia Davidson, be prevented from moving from Barrhaven to Kemptville with the child.

3. That Ms. Davidson be equally responsible for the transportation of the child to and from access visits, in the event that the move to Kemptville is allowed.

4. That the motion to Change proceed as a long motion (2 hours), if the OCL is not appointed or declines to act.

5. Costs.

Background

3Mr. Stow currently lives in Gatineau, Quebec. He works as an automobile sales representative in Pembroke, Ontario.

4Ms. Davidson has been employed as a member of the RCMP for over 20 years and works in Ottawa. She recently moved from Barrhaven to Kemptville, with Georgia.

5Georgia just had her 9th birthday. She attends the South Branch Elementary School in Kemptville.

6There is little, if any, trust between the parties. They disagree on virtually everything to do with Georgia. Their ability to parent together is limited and riddled with conflict.

Material Change in Circumstance?

7Ms. Davidson argues that Mr. Stow’s motion for the involvement of the OCL is premature. She says he must first meet the threshold test of proving that a material change in circumstance has occurred since Justice Polowin’s Order dated January 13, 2012 before he can seek any relief in the proceeding. She asserts that he has not established such a change and until he does, the necessary foundation for this motion is missing. Ms. Davidson suggests that Mr. Stow’s request for the OCL is made with the hope that their investigation will uncover a material change.

8Mr. Stow does not identify any specific fact or event as constituting a material change. However, it is my view that the totality of the evidence presented by both parties discloses a number of changes that considered collectively, constitutes a sufficient change to ground the variation proceeding and the relief sought in this motion. Whether the change is such that it will ultimately warrant a variation to Justice Polowin’s Order will be an issue for the trial judge to decide.

9In particular, some of the changes that have occurred include the fact that Georgia was 3 years old at the time of Justice Polowin’s Order and she is 9 years old now. She is in school, involved in many activities and able to express herself. Georgia has recently been diagnosed with dyslexia and ADHD and there is evidence that she is struggling with certain subjects in school.

10It is alleged by Mr. Stow that the conflict between he and Ms. Davidson has escalated since 2012. I find it is reasonable to conclude that Georgia, at age 9, is now considerably more aware of the conflict between her parents than she was as a toddler. There is evidence that the police have been involved with this family and that Georgia witnessed their intervention. Ms. Davidson reports that Georgia tells her weekly that she wishes to spend less time with her father and that she is afraid of him. It is Ms. Davidson’s evidence that Georgia cries before her access visits 90% of the time and categorically states her wish not to go. On the other hand, Mr. Stow states that Georgia tells him that she wants to spend more time with him.

The Request for the Children’s Lawyer

Mr. Stow’s Position

11Mr. Stow and Ms. Davidson each characterize their parenting relationship as high conflict. Their respective affidavits set out in great detail a long list of the complaints that each makes about the other. Mr. Stow alleges that Ms. Davidson interferes with his access and his ability to participate in Georgia’s life, in the meaningful way he wishes to parent including being present for her medical appointments and school activities. He further claims that Ms. Davidson speaks to Georgia about him in a disparaging manner. He fears that she is trying to alienate the child from him. Mr. Stow’s material is lengthy and provides many examples of the behaviour he complains of. He alleges that parenting provisions in Justice Polowin’s Order, although detailed, still leave room for interpretation. Mr. Stow argues that the way in which Ms. Davidson interprets those terms leaves him vulnerable and allows her to deny his access.

12It is the ongoing and increasing level of conflict that justifies help from the Office of the Children’s Lawyer according to Mr. Stow. It is his position that independent third party evidence is essential if a better path forward is to be found for Georgia that is consistent with her best interests.

Ms. Davidson’s Position

13Ms. Davidson acknowledges that her relationship with Mr. Stow has been tumultuous and high conflict. Her opposition to this motion is based in the concern that the appointment of the OCL will serve to further involve Georgia in the conflict. Ms. Davidson argues that Georgia should not become a “child of litigation” by being placed in the conflict between her parents. She claims Georgia is adamant that she does not want to talk to anyone and that she is fearful of her father’s rage as the fallout for speaking against his wishes. Ms. Davidson, despite her opposition, admits that she is torn over the potential involvement of the OCL. Mr. Stow responds that Georgia is already a “child of litigation” and that is precisely why the OCL is needed.

14Ms. Davidson claims that Mr. Stow suffers from a mental illness that makes parenting with him very difficult. She relies on medical notes from the Ottawa Hospital made in January, 2004 following a suicide attempt by Mr. Stow. He denies any pathology and notes that the incident happened over 13 years ago. Ms. Davidson describes Mr. Stow as manipulative and prone to making false allegations.

15Ms. Davidson points to Georgia’s current academic challenges and argues that less access is in her best interests, not more. At her mother’s initiative, Georgia underwent a Psycho-educational Assessment that got underway in early December, 2016. The Report is now complete and was filed with Ms. Davidson’s affidavit on this motion. One of the recommendations is for consideration to be given to access arrangements that would allow Georgia to be in only one home during the school week. Ms. Davidson, therefore, argues that more access would be contrary to Georgia’s best interests.

16As a defence to more access, Ms. Davidson further states that Mr. Stow often fails to exercise the access he already has as ordered by Justice Polowin. She claims the lack of consistency undermines Georgia’s need for structure and routine. Mr. Stow regards Ms. Davidson as rigid and inflexible. She, on the other hand, states that she has no choice but to insist on strict adherence to the court ordered access schedule. To do otherwise, she argues, is to invite chaos.

17It is Ms. Davidson’s evidence that Georgia is often tearful and resistant to her scheduled access with Mr. Stow. It is alleged that Mr. Stow speaks about Ms. Davidson in a derogatory manner in front of the child. Ms. Davidson claims that those comments cause a great deal of anxiety for Georgia.

The Law and Analysis

18The best interests of the child is the sole test to determine any issue of custody or access and the court is directed to consider all of the child’s needs and circumstances. See section 24 of the Children’s Law Reform Act (CLRA). Section 24(2), (3) and (4) sets out many of the factors to be considered. In particular, I note here the love, affection and emotional ties between Georgia and each of her parents, the ability of each of Mr. Stow and Ms. Davidson to act as a parent, the ways in which each of them propose to raise and care for the child, and the reasonableness of ascertaining Georgia’s views and preferences. I am especially mindful of the obvious hostility between the parties, the length of time it has endured, and the potential consequences for Georgia if the conflict continues unabated. The length of the affidavits alone that each party has filed in this proceeding, underscore the extent of the ongoing conflict. Mr. Stow’s Affidavit sworn May 3, 2017 consists of 81 paragraphs set out over 12 pages plus Exhibits “A” through “H”. Ms. Davidson’s Affidavit sworn September 22, 2017 is 131 paragraphs long set out over 20 pages plus Exhibits “A” through “S”.

19Sections 89(3.1) and s. 112 of the Courts of Justice Act, (R.S.O. 1990, c.C.43, as amended) (CJA) provide the court with the authority to request the assistance of the Office of the Children’s Lawyer where the custody of or access to a child is in dispute. Specifically, s. 89(3.1) provides that the Children’s Lawyer may act as the legal representative of a minor who is not a party to the proceeding, at the request of a court. The latter provision, s. 112, authorizes the Children’s Lawyer to cause an investigation to be made and to report and make recommendations to the court on all matters concerning the custody of or access to the child and the child’s support and education.

20The order sought by Mr. Stow in this motion is broadly framed and speaks to both ways in which the OCL can be involved in litigation. Considering the degree conflict that defines the relationship between the parties, the impact that it has on their ability to parent Georgia, the allegations that each makes about the other, I find that an investigation by the OCL would be of considerable assistance to the court in determining the child’s best interests.

21It is a fact that Georgia is already a child of litigation. The court proceedings between her parents began in 2009 and their struggles over her day to day life continue 8 years later. If the OCL finds it appropriate to assist this family, the court will have an objective assessment of the difficulties plaguing this family and it may gain some insight into Georgia’s views and preferences. The OCL will be in a position to determine her wishes to the extent possible in a manner that is sensitive and consistent with her age and stage of development. She is now 9 years old and by all accounts is a bright and articulate child.

22It is also hoped that an OCL report may offer some direction to the parties that will help reduce their conflict and allow Georgia to have a more harmonious life with both parents.

The Remaining Relief Sought in Mr. Stow’s Notice of Motion

23Mr. Stow did not pursue the claim for an order prohibiting Ms. Davidson from moving to Kemptville, Ontario. By the time the motion was heard, the move had already taken place. He did, however, argue for an order that Ms. Davidson be prohibited from moving the child again without his consent or leave of the court. This relief was not included in Mr. Stow’s Notice of Motion and there is no evidence to indicate that Ms. Davidson has any plan to move again. I decline to make this order.

24Neither party made submissions on the issue of sharing transportation to facilitate access, therefore, I decline to make an order.

25The final request by Mr. Stow is for an order that the Motion to Change proceed as a long motion if the OCL is not to take a role in this proceeding. Ms. Davidson did not oppose this request. If the OCL determines that involvement in this file is not appropriate, the matter is to be schedule for a long motion of 2 hours or more.

26For the reasons given and subject to their discretion, the Office of the Children’s Lawyer is requested to investigate and report to the court on all matters pertaining to the custody of and access to the child, Georgia Blanche Davidson, born October 23, 2008.

27I encourage the parties to resolve the issue of costs. If they cannot do so, Mr. Stow shall provide his cost submissions within 10 days. Ms. Davidson shall then have 10 days to provide her submissions and Mr. Stow shall have a further 5 day right of reply. Submissions are not to exceed 2 pages in length excluding Offers to Settle and Bills of Costs.