CITATION: Flowerday v. Flowerday, 2017 ONSC 7479

COURT FILE NO.: FS-17-88633-00

DATE: 2017 12 14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Jason Flowerday

Self-Represented

Applicant

• and -

Angela Flowerday

Self-Represented

Respondent

HEARD: September 26, 2017

ENDORSEMENT

TRIMBLE J

INTRODUCTION

[1] On September 26, 2017, I held the access review hearing in this matter as set out in paragraph 84 my March 13, 2017 Endorsement. The purpose of the hearing was to determine, with the assistance of the parties and Family Bridges, what Ms. Flowerday’s access going forward would look like.

A Preliminary Issue

Background

[2] In the first 16 paragraphs of my March 13, 2017 endorsement I outlined the events that delayed the review hearing from approximately June, to December, 2016, and the events that delayed the release of my reasons from December, 2016 to March 13, 2017.

The Positions of the Parties:

Ms. Flowerday

[3] Ms. Flowerday says that the family has been doing well since I reinstituted her access in March, 2017, albeit on a limited basis. While there have been some problems, they have been relatively few. Access has gone smoothly, overall. The parents have adjusted access from time to time, although Ms. Flowerday says that she has made most of the compromises.

[4] Ms. Flowerday admits that significant challenges remain. Most of these problems, however, are caused by the constant pressures of continued litigation which have prevented this family from finding their new state of normality. The constant litigation, she says, is driven by Mr. Flowerday’s interference with her access, and his failure to honour support obligations. She says that it is time that the family end the ceaseless litigation and began an access schedule that leads, gradually, to 50/50% access. The stress of the litigation is exacerbated by the interference of Family Bridges and the incorrect factual basis for its opinion.

Mr. Flowerday

[5] Mr. Flowerday says that immediately on Ms. Flowerday’s access being reinstituted in March, her alienating behaviours started again. She undermines his role as the custodial parent. She interrupts and disrupts his access. She demands that the children “choose sides”. She texts A outside of access time, thereby expanding access time.

[6] Ms. Flowerday has not followed any of the orders that I have made with respect to trying to change her alienating behaviours. She has seen Dr. Collins, only briefly, and only for supportive counselling. She has not taken any exploratory therapy to address her behaviour.

[7] Ms. Flowerday’s behaviour and that of her family at children’s events remains disruptive, often provokes confrontation, and often is done in front of the children.

[8] The children’s troubling behaviours, largely absent between February 2016 and March, 2017, have returned. A knows that she is to have contact with her mother only during access periods. They text each other and email each other, however. A deletes her emails and texts, and clears her trash bin to hide her breach of orders.

[9] A feels she has to advocate for Ms. Flowerday. The fact that A and Ms. Flowerday ask the same questions indicates that to Mr. Flowerday that Ms. Flowerday is involving A in the litigation, again. A has become hostile to Mr. Flowerday again, especially when she returns from her time with her mother. It takes some time for A to return to her normal temperament and relationship with Mr. Flowerday after she spends access time with Ms. Flowerday. She is openly hostile toward Mr. Flowerday’s new partner and her family. Mr. Flowerday has taken A to counselling but A quit after 3 sessions.

[10] A has become Ms. Flowerday’s advocate. A exerts influence on the other two children by her comments and body language.

[11] B’s eye twitch has returned. When he returns from his mother’s time, his eye twitch is worse, he will not make eye contact, he has lower confidence and he is withdrawn.

[12] C, to date remains largely unaffected except by the signals she receives from A.

[13] Notwithstanding that the children’s problems have returned with access to their mother, Mr. Flowerday accepts that Ms. Flowerday has a place in the children’s lives and that access adjustments must be made. He agrees that litigation is, itself, a stressor (both for the children and him), and should end. However, flexibility in access and changes demanded have caused stress for the children and friction between the parents. Therefore he says a strict access schedule should be imposed in order to consolidate the children’s gains since attending Family Bridges and minimize the impact of Ms. Flowerday’s unchanged behaviours. In Mr. Flowerday’s view, the strict access must be imposed, and enforced until Ms. Flowerday changes.

The Evidence

[14] On this review hearing, I received affidavit evidence from Mr. and Ms. Flowerday, Angela Polowin, and Mr. Flowerday’s new partner. In addition, I reviewed a letter that A sent to me via Family Bridges on September 13, 2017 and a report from Family Bridges dated September 21. Mr. and Ms. Flowerday, and Ms. Polowin were cross-examined. Finally, I received submissions from counsel for Mr. Flowerday and from Ms. Flowerday, who continues to self-represent.

Ms. Flowerday’s Progress

According to Ms. Flowerday

[15] Ms. Flowerday reports that she has made progress with her thinking and parenting skills. She reports that access has gone well, for the most part. She provided many instances in which adjustments to access were made, mutually and with minimal fuss. She noted that she made significant compromises in the access schedule to facilitate a two week holiday at the cottage for Mr. Flowerday and the children, so that Victoria could travel to Vancouver with her father.

[16] Ms. Flowerday says that while access, overall, has been relatively problem free, there have been problems which were driven by Mr. Flowerday’s one sided approach to access. Her access was delayed or denied with no replacement time provided. Many of the instances of denied access arose because Mr. Flowerday made plans, unilaterally, for the children during her access time and would not reschedule. Further, for the most part, he demanded concessions regarding access time from her without providing similar consideration.

[17] Ms. Flowerday also says that Mr. Flowerday’s family has attempted to provoke incidents during the children’s events.

[18] Ms. Flowerday says that most of the family’s continued problems are driven by the family’s continued litigation, which is driven by Mr. Flowerday. She says that every member of the family is exhausted and frustrated by the constant court related activity. The Court’s presence in this family’s life has prevented it from healing. She indicates that Dr. Collins, her therapist, will not become involved in other than supportive therapy for her, until the litigation ceases.

According to Mr. Flowerday

[19] Mr. Flowerday says that Ms. Flowerday has not, cannot, and will not change. She undermines his authority with the children. She challenges and frustrates Family Bridges’ involvement with the children. She continues to be confrontational with him and his family, both privately and at public events. Ms. Flowerday and her mother openly provoke Mr. Flowerday and his family at children’s events. She uses the children’s events which occur not on her access time, to expand her access time.

[20] The tell-tale sign of the fact that Ms. Flowerday has not changed her alienating behaviour is the return of the children’s pre- February, 2016 behaviours. The good work of Mr. Flowerday, the children, and Family Bridges are threatened.

Family Bridges’ Report

[21] At my request, Family Bridges principals, Jacqueline Vanbetlehem and Yvonne Parnell, provided a report dated September 21, 2017. The report summarizes the children’s progress since November 28, 2016. I have considered this report in conjunction with their previous reports.

[22] Family Bridges indicates that there are some limitations with respect to its reports. For example, it was unable to obtain a baseline of the children’s adjustment immediately prior to the reinstitution of Ms. Flowerday’s unmonitored parenting time. Information in this regard had to come from Mr. Flowerday and his family. Further, because of difficulties arranging a meeting with the children, Family Bridges was not able to meet with and assist the children in preparing for their first meeting with their mother after the blackout period that I imposed in February, 2016.

[23] In Family Bridges’ first meeting with the children on April 7, 2017, A was morose, preoccupied, and sullen. She was withdrawn from Family Bridges’ staff. This was a marked change from her previous behaviour. A also exerted a strong influence on her siblings which indicated to the Family Bridges staff that the other children were now attuned to A’s emotional needs and status, and that she wished them to know what she was thinking. A was frequently demeaning and judgmental of her siblings. This marked a return to the relationship dynamic she had with her siblings before their referral to Family Bridges; namely, she subtly and overtly messaged her siblings with her approval or disapproval of their conduct and opinions.

[24] Family Bridges reviewed my March 13, 2017 order. A asked many questions about the order. She was very concerned about the family name being in the public realm. She was also concerned Family Bridges did not meet with them earlier so they could commence their access with her mother earlier. A ridiculed or criticized her siblings about various issues. Notwithstanding discussions about the role of children in family litigation and how their evidence is received, she continued to demand a “voice” in the process.

[25] B and C appeared to be happy to meet with Family Bridges. They were open and answered questions. However, both were negatively affected by A’s messaging through her facial expressions, B more so than C. B’s eye twitching had returned.

[26] Family Bridges met again with A on April 12, 2017 because of their concerns about her mood and presentation on April 7, 2017. Mr. Flowerday’s mother brought A to the meeting and expressed some concerns she had. Mr. Flowerday joined later on. In the meeting, A was terse and declined to answer some questions. Her answers were one word, predominantly. She was angry with Mr. Flowerday’s new partner because the latter had spoken to A about her conduct, recently. A responded to Mr. Flowerday’s new partner saying that she was not A’s mother.

[27] Overall, Family Bridges thought that A was under a great deal of stress. She is challenged to maintain her own mental health and welfare while trying to have a relationship with both parents. She is struggling emotionally. Family Bridges stated “There is no data would suggest that [A]’s current challenges are temporary or reversible under the current access schedule.”

[28] Family Bridges met with the children again on August 14, 2017, meeting with each child separately. A complained bitterly about the unfairness of the time she had with her mother. She expressed that she was tired of being punished for mistakes of the past. She admitted that she stopped the therapy her father arranged for her because she determined it was unhelpful. The only thing she wanted was a relationship between the three children and her father and his family, and the three children and her mother and her family, and to move on. She did not think that spending more time with her mother contributed to any difficulty she was having with her father or his family. She denied any responsibility for any challenges she was having in her relationship with her father or his new partner.

[29] B was more nervous than before and his eye twitching was worse. He complained of incidences where his mother and her family had created difficulties that he had been involved in and at his ball games.

[30] C appeared to be the least affected of all the children.

[31] Family Bridges also met with Ms. Flowerday and exchanged a considerable amount of email with her. Ms. Flowerday completed the educational component of Family Bridges’ aftercare process but had not completed the monitored contact component. This ended because Family Bridges was concerned about detrimental emotional contagion between her and the children. Family Bridges felt that there was no further intervention to offer Ms. Flowerday individually, that Family Bridges thought would be of assistance.

[32] Family Bridges was concerned both by what Ms. Flowerday said, and did not say. It was clear to Family Bridges that Ms. Flowerday continued to place A in a “loyalty bind” between her parents. She was not helping A to put the matter in the context of parallel parenting wherein A has two families who love her. She did not give A permission to love both families. Ms. Flowerday did not intervene to correct A’s rejection of Mr. Flowerday’s new partner. Ms. Flowerday did not make use of conflict resolution skills she acquired in the education portion of the Family Bridges’ program. Rather, Ms. Flowerday took the position that A’s problems with Mr. Flowerday were none of her concern. They were A’s problems with Mr. Flowerday and it was up to them to resolve the problems. She did not attempt to assist A to assess the consequences of various actions with a view to preserving the relationship between A and her father. Instead, Ms. Flowerday focused on justifying and enabling A’s sadness and opinions. She was neither in compliance with the parallel parenting model nor with the educational component from Family Bridges’ educational module. Ms. Flowerday’s reactions exacerbated A’s negative feelings towards her father and his new partner.

[33] In her conversations and emails with Family Bridges, Ms. Flowerday was unable to understand that she was not supporting A’s relationship with her father. She was incredulous that Family Bridges disagreed with her that A’s conflict with her father should be redirected back to him. She ridiculed Family Bridges’ feedback and positions. At the same time as Ms. Flowerday challenged Family Bridges to help her understand “where she went wrong”, she resisted any education or information that did not align with her own beliefs. She was often shocked and yelled at Family Bridges, challenged their input, acted incredulous, ridiculed their feedback, and said she did not understand the feedback when it was provided.

[34] Family Bridges’ view was that B and C managed to maintain a balanced, close relationship with both of the parents, C more so then B. A, however, has regressed since unmonitored contact with Ms. Flowerday began. A continues to say she wants the family conflict to end and to have equal access with her parents. She insists she is not involved in parental disputes and denies any deterioration in her mental health. The deterioration in her relationships with her father, his family, his new partner and her children, suggest otherwise. There are specific behaviours which indicate an alignment with the mother like that which predated Family Bridges’ involvement, including A’s denial of reality, resistance to comprehending material provided, and level of contempt and disrespect toward the team leaders.

[35] Ms. Flowerday’s evasiveness regarding instances where she was involved in disputes between A and Mr. Flowerday and her acknowledgement of speaking to A about it suggests a pattern of relationships that predated Family Bridges’ involvement. Family Bridges said:

“…most concerning is that it repeats similar themes of the children’s alienation, most particularly that the father does not prioritize their needs and or neglects their emotional needs. Ms. Tartaro-Flowerday’s description of the children’s father as “that man” supports this concern as does her fixed belief that [A] needs to hear her opinion about Mr. Flowerday. Ms. Tartaro-Flowerday’s response to us demonstrates a pervasive and substantial lack of insight into the harmful effects of her own behaviour.

[A]is at risk of choosing one parent over the other. This may be a result of the continuing family conflict and her pursuit of greater autonomy over her current life circumstances. At the same time, her challenges with her father continue to be related to entrenched behaviours on her mother’s part that are contributing to the re-emergence of previous enmeshed relationship patterns, particularly Ms. Tartaro-Flowerday’s fixed beliefs about Mr. Flowerday and her inability to assist the children to put into context any interpersonal difficulties they experience with their father. We believe that [A] would have more success in achieving a balanced relationship with both parents in the absence of the mother’s continued inability to support [A]’s relationship with their father.”

[36] In Family Bridges’ opinion, A will be challenged to accept Mr. Flowerday’s new partner, as most adolescents would. Her complaints, however, reflect a remerging theme reminiscent of her complaints prior to Family Bridges’ relationship assistance in this matter. It is clear that C and B recognized the divide between A and her father which puts them in an unsustainable loyalty bind as well.

[37] Family Bridges indicates that there should be the “utmost clarity in any future orders.” Given what has transpired since my March 13, 2017 endorsement, Family Bridges considers that A was inadvertently put back into the middle of this dispute by having a voice to the court by her letter and now has a greater sense of responsibility and right to have another voice. This is fuelled by her sense that her previous letter may have tipped the balance in favour of having unmonitored access.

[38] Clearly, Family Bridges does not support extended unmonitored access given Ms. Flowerday’s unwillingness or inability to change her behaviours.

[39] Ms. Flowerday was successful in cross-examining Mr. Flowerday on some of the factual issues that Family Bridges raised. She noted, and Mr. Flowerday agreed, that Family Bridges did not report many positive aspects of Mr. Flowerday’s relationship with A including the travel that they had taken together and her schooling. Family Bridges did not report on Mr. Flowerday’s trip to Vancouver with A or the family trip to the Dominican Republic in January 2017. It appeared that Family Bridges only reported on negative aspects of the A-Mr. Flowerday relationship. Further, Family Bridges commented that A’s schooling was suffering when it was not.

[40] Ms. Flowerday submitted that the Family Bridges’ report was not “balanced”, and I should not rely upon it.

[41] While Ms. Flowerday was successful in challenging certain aspects of the Family Bridges’ report through Mr. Flowerday, she did not seek to cross-examine Family Bridges, directly. Further, the overall thrust of the Family Bridges’ report was unchallenged and not affected by the factual issues Ms. Flowerday raised successfully. I accept the Family Bridges’ opinion although the observations of the children were limited and discrete.

A’s Letter to Me

[42] On September 13, 2017, A wrote me a letter in anticipation of the access review hearing. In that letter she indicates that since beginning to see her mother again her grades have improved dramatically, her swimming has improved, her relationships with her friends at school have improved, and, most importantly, her relationship with her father has improved. She says:

“Everything in my life has improved since I started to see my mother again, even for as little as eight hours a week.”

She also says:

“We have all made many mistakes over these past few years, and we have all now come to realize where we went wrong, but I believe that we’ve all payed for our mistakes during the 15 months we were not allowed to see each other. We have all dedicated so much of our lives to this, and I believe we all need to move on and can continue to improve our lives. Over these past 18 months, I have dedicated my life to improving my relationships and getting my life back on track so that I could eventually see my mom as much as I see my dad. We of all worked very diligently and we deserve to see our mother half the time.”

[43] She goes on to say that she has never disobeyed a court order, she has done everything expected of her, and she thinks that it is reasonable that she see her mother half of the time. She promises to continue on the path that she is on while seeing her mother half of the time. She wants her mother to be part of her life as much as her dad and eight hours a week is not enough.

[44] I accept A’s sentiments, as she expressed them, in a heartfelt way. I accept them, however, with serious reservations.

[45] First, A’s observations are not a reflection of reality. Her relationship with her father, by any account, is worse, not better. Her relationship with her siblings has deteriorated. Her pre-February, 2016 behaviours and attitudes have returned.

[46] Second, Ms. Flowerday’s influence on the letter is patent. She denied that she influenced A to write this letter or influenced its contents. A admitted to Mr. Flowerday, however, that Ms. Flowerday was involved in creating the letter. A’s language and the use of “we” (denoting the fault of all of the participants for the family’s current situation), is strikingly similar to the language Ms. Flowerday used in her submissions to me and in her affidavit.

[47] Third, the letter is A’s attempt to have an independent and direct “voice” in this proceeding, an idea that originated with Ms. Flowerday and which she facilitated to the extent of retaining a lawyer on A’s behalf in the trial, to whom I refused the right of audience, but who appeared on A’s behalf in the Ontario Court of Justice proceeding, and against whom was made an award of costs, personally.

[48] Fourth, A reports that “we [meaning herself among others] made many mistakes”. In this case the children made no mistakes. The children’s actions were driven by their parents’, and most notably Ms. Flowerday’s, actions. It is inappropriate and incorrect that any child should feel, be told or suggested to, that his or her actions are something that they should be responsible for in this dispute. Using the word “we” and concepts of collective responsibility, even of the children, is an example of A trying to protect Ms. Flowerday and of Ms. Flowerday’s avoidance of responsibility for her actions.

[49] Further, and in any event, while Victoria may consider that she has a “voice”, which I have accepted, she does not have a veto over the outcome.

Findings

[50] As in all matters of custody and access, I am guided solely by the best interests of the children. I have reviewed the law on the best interests of the children in my two earlier Reasons for Decision addressing custody and access. I do not repeat that law hear.

[51] Because the family, since March 2017, has not had the intense involvement with Family Bridges that it did between February 2016 and March, 2017, I do not have as complete an evidentiary record as I did for the period before March 2017. The evidence available at the access review hearing is sufficient, however, for me to draw reliable conclusions about the progress that the Flowerday family has made in the last 7 months.

[52] There are a number of instances in which the family’s behaviour in front of the children regressed to that which existed prior to February, 2016. Both parents can be criticized for failing to apply the lessons that Family Bridges taught them. In none of the incidences that have taken place since March, 2017, do the children, themselves, bear any responsibility for their conduct. Their ability to apply the tools Family Bridges gave them has been tested. They have done well, overall. Any regression in their conduct is a result of the failures of the parents to act in a child focused way and to apply the tools that Family Bridges gave them.

[53] Most of the evidence regarding the instances I consider, below, comes from Mr. Flowerday or his mother. Except as I have noted below, Ms. Flowerday did not challenge the evidence presented. Therefore, I accept the uncontested evidence as true. Where the evidence is contested, I indicate below how I have resolved that contested evidence.

[54] As in all custody and access disputes neither party is free from criticism. Both have had issues; both have illustrated that they have areas for improvement.

[55] I address Ms. Flowerday’s conduct first, as hers is the most concerning.

[56] All evidence indicates that Ms. Flowerday continues with her alienating behaviours, with no discernable changes. The effect of her behaviour is only limited because of the limited access the children have with her. Ms. Flowerday has no insight as to the cause or effect of her behaviour on the children and the damage it causes to their relationship with Mr. Flowerday. All evidence indicates that Ms. Flowerday has no willingness to embark on a process of change that accepts a parallel parenting model that fosters a loving, supportive relationship between the children and both parents. Instead, she continues to signal to the children, by word and deed, her contempt for Mr. Flowerday and his family, and to blame Mr. Flowerday and litigation for the family’s difficulties. This is illustrated by the following examples:

a) Varsity Stadium Track Meet – May 15

[57] Mr. Flowerday’s mother, Mrs. Polowin, reports that on May 15, 2017, B and his cousins were competing in a school track and field meet at Varsity Stadium. When she arrived, Ms. Flowerday was already present. It was not her access day. Mrs. Polowin took her seat and a few moments later, Ms. Polowin’s daughter (Mr. Flowerday’s sister), joined her. The school team entered and sat below them in the same section. Ms. Flowerday left her seat and sat directly behind B. When B noticed Mrs. Polowin, he sat beside her. Ms. Flowerday moved and sat between Mrs. Polowin and B, spoke to him, and then moved directly behind B. Mrs. Polowin reports that Ms. Flowerday was aggressive, almost hostile with her. Ms. Flowerday’s behaviour upset B. He cried.

[58] Later, another of Mrs. Polowin’s grandchildren came and sat between Mrs. Polowin and B. She spoke to B, offering words of encouragement to B as he was concerned about going on to the next level of track and field. Ms. Flowerday castigated the other child for interrupting her conversation with B. Ms. Polowin’s granddaughter cried following Ms. Flowerday’s rebuke. B looked away, dropped his head, and became noticeably withdrawn.

b) B’s Baseball Game - May 19

[59] This ball game did not occur on Ms. Flowerday’s access time. During the game, Ms. Flowerday, who attended with her mother, mocked Mr. Flowerday’s partner’s 12-year-old child when the child returned a foul ball to the umpire. Mr. Flowerday alleges that Ms. Flowerday and her mother “cast dirty looks” and stared aggressively at his new partner. On the way back to the car after the game, Ms. Flowerday and her mother followed Mr. Flowerday and B and “taunted me in Italian” a language of which he has an understanding.

[60] Mr. Flowerday allowed B to go see his mother and maternal grandmother. When he called B and said that it was time to leave, Ms. Flowerday held on to B, whispering in his ear. Mr. Flowerday believes that B understood that Ms. Flowerday and his maternal grandmother were speaking negatively about him in Italian, although does not say why he held this belief.

c) B’s Ball Game – June 11

[61] This ball game occurred in the middle of the tournament and during Ms. Flowerday's access time.

[62] Mr. Flowerday drove B to the ballpark because B was required to be there for earlier games. Ms. Flowerday, along with A and C, arrived in the afternoon. Mr. Flowerday went to speak to his other two children. He gave A a kiss on the cheek. A refused to acknowledge him or speak to him. A’s behaviour and Ms. Flowerday’s failure to encourage A to reciprocate her father’s kiss or to acknowledge him is reminiscent of her earlier alienating behaviours, which, implicitly, gave A permission to engage in negative behaviour toward her father and reinforced it.

[63] Ms. Flowerday’s access ended at the close of that baseball game. Mr. Flowerday told Ms. Flowerday quietly that he would extend the access by 35 to 45 minutes so that she could drive the children home. While holding C and B’s hands, Ms. Flowerday snapped at him “I don’t need your permission. What a joke”. This reaction, too, is reminiscent of her pre-February, 2016 alienating behaviour.

[64] Later that evening, as Mr. Flowerday and his new partner sat on the front porch and talked, and while C and his new partner’s two children played basketball in the driveway, Ms. Flowerday drove by his house three times, each time slowing to look, casting disapproving looks at the two of them, and once, stopping roughly for 20 to 30 seconds at the end of the driveway to make notes on her iPhone.

[65] Mrs. Polowin said that earlier that day, she took C to her Sunday morning basketball game. On the drive down, C complained of a headache and was given Tylenol, but became nauseous in the car. Mrs. Polowin offered to take C home but C insisted on going to the game. When they arrived at the basketball game, Ms. Flowerday was present. C went into a meeting with the coach. When she came out Ms. Flowerday approached her and hugged her and spoke to her. When C walked past Mrs. Polowin, she was carrying a bottle of Gatorade. Mrs. Polowin told her not to drink it because she had been nauseous. C said that she would not. Ms. Flowerday approached Mrs. Polowin angrily. Mrs. Polowin told Ms. Flowerday that she told C not to drink the Gatorade because she had a headache and was complaining of being nauseous on the way to the game. Ms. Flowerday made unpleasant comments, which Mrs. Polowin does not remember. Strangers who overheard the discussion told Mrs. Polowin not to let Ms. Flowerday get to her. After Mrs. Polowin sat down, Ms. Flowerday approached Ms. Polowin and “got in my face” and derided her about countermanding her authority with C. Mrs. Polowin, to her discredit, replied “You are a sicko. You have been throwing your children under the bus for 3 ½ years." Mrs. Polowin said that she reacted this way because Ms. Flowerday castigated and threatened her in full view of the other parents while C was in her care and it was not Ms. Flowerday's access time. Such is the nature of the relationship between Mrs. Polowin and Ms. Flowerday.

d) B’s Dance Competition – June 20

[66] On the evening of June 20, 2017, B was competing in the semi-finals of the Toronto District School Board Ballroom Dance Competition. Mrs. Polowin took B to the Palais Royale, gave B his outfit and shoes, and sent B to Ms. Flowerday for her access time. Mrs. Polowin stayed for the competition because B and another of her grandchildren were competing.

[67] Ms. Flowerday, her parents, along with A and C were already there, seated in the section reserved for children from the school. Mrs. Polowin sat behind Ms. Flowerday and her parents. Mrs. Polowin said hello to A. A did not acknowledge Mrs. Polowin. This is understandable in the circumstances. Neither Ms. Flowerday nor family encouraged A to acknowledge her paternal grandmother.

[68] Mrs. Polowin was saving seats for her other children. When she left to meet them and bring them back to the bleachers, she was advised by someone sitting nearby that someone else had tried to take the seats. When the woman said this, Ms. Flowerday, who was offering the seats to others, said to that woman that there was no saving seats. This was all done in front of A and C, as well as strangers.

e) Cooking Camp - July 21

[69] B and C attended a cooking camp together. On July 21, the students prepared and served a meal to 45 people. The event was not on Ms. Flowerday’s access time, although she and her mother were present. B worked in the kitchen cooking and preparing meals and C served them. Afterward, B sat with Mr. Flowerday and told him about his experiences in the kitchen and how demanding and fun the job was. As Mr. Flowerday and the two children walked to the car, Mr. Flowerday saw Ms. Flowerday sitting in her car with Ms. Flowerday’s mother. She drove toward the children and rolled down her passenger window. B and C approached the passenger side of the car. Ms. Flowerday’s mother spoke to the children. After a brief time C said she ran back to Mr. Flowerday's car. B stood at the window while Ms. Flowerday’s mother spoke to him, and began to cry. After B returned to Mr. Flowerday’s car he told Mr. Flowerday that Ms. Flowerday and her mother were angry because B did not pay attention to them during the dinner. Mr. Flowerday explained to B that adults should not put their emotional issues on their children.

f) Texting

[70] Mr. Flowerday says that Ms. Flowerday constantly texts A, which she does not do with the other children. This is significant for two reasons, he says. First, she uses texting to expand her access. Second, by her texting and the language he uses, she reinforces the relationship that existed between the two before February 2016. For example, she constantly refers to A as “my baby” and encourages A when A says that Ms. Flowerday is her best friend.

[71] Mr. Flowerday, in cross-examination, admitted that some of the texts he attached to his affidavit were related to arranging pickups and drop offs of A and her siblings, or were sent on access days. She is correct that these contacts do not expand access.

[72] Mr. Flowerday says, however, and I accept, that he has seen emails or texts on A’s phone which, when he checks later, have been deleted from the phone or computer and the phone’s or computer’s trash bin. He suspects, and I agree, that there is contact between Ms. Flowerday and A outside access time.

[73] I find that Ms. Flowerday uses texts and emails with A to expand her access time with her. Given the nature of the discussions and the language used in the emails in evidence before me, I find that there must be other emails and texts of the same nature. These communications reinforce the pre-February 2016 adultified relationship between A and Ms. Flowerday, reinforce the loyalty divide that A suffers, and undermine the parental relationship between Mr. Flowerday and A.

[74] While one might criticize Ms. Flowerday for acting poorly in each of these incidents, none of these incidents, in isolation, would be of grave concern. Individually, Ms. Flowerday’s actions might be seen as unique or out of the norm. What makes Ms. Flowerday’s actions problematic is their frequency and predictability. The evidence convinces me that she has changed little, notwithstanding the opportunities to do so. Based on her actions in public, I conclude that when with the children in private her messaging to them is the same, as is the persistence of it.

[75] I now turn to Mr. Flowerday’s behaviour.

[76] The evidence indicates that Mr. Flowerday demands a higher level of compliance by Ms. Flowerday with respect to access, and, from time to time, reacts poorly, out of frustration. A few examples will suffice:

a) Go Live with Your Mother

[77] Dealing with A since Ms. Flowerday’s restored access has been a challenge for Mr. Flowerday. The evidence indicates that A has relapsed to her pre-February, 2016 mindset and behaviour, which requires Mr. Flowerday to correct A’s behaviour when she returns to his care.

[78] In cross-examination, Mr. Flowerday admitted that on two or three occasions he had said to A “Go live with your mother” (or words to that effect). Each time he reacted out of frustration, given A’s attitude after she returned from her time with Ms. Flowerday. He admits that this comments were inappropriate, but born out of exasperation and frustration. In addition, he did not want A to think that she was a prisoner in his home. On each incident, however, he spent hours discussing his comment with A for which he apologized. A was very upset during these events. Both cried and had to talk through the matter for hours. In any event, A never left to live with her mother.

b) A’s Birthday – April 11

[79] Generally speaking, access has gone reasonably well. From time to time, however, Mr. Flowerday shows disregard for the access schedule, ostensibly for altruistic motives.

[80] I accept Ms. Flowerday’s evidence that Mr. Flowerday expects that she comply strictly with the access schedule without requiring the same compliance of himself. Conversely, I accept his evidence that from time to time Ms. Flowerday insists on strict compliance with the access schedule in terms of time and place of pick up and drop off, because she knows it is most inconvenient for Mr. Flowerday.

[81] A’s 15th birthday is an example of how Mr. Flowerday approaches Ms. Flowerday’s access time, notwithstanding my order, and oblivious to the reaction that he must know that he will provoke.

[82] After I released my March 13, 2017 access review endorsement, Mr. Flowerday made plans to take A for an “edge walk” and dinner at the CN Tower for A’s 15th birthday. That dinner was to include his mother, his new partner, and his new partner’s children. A’s birthday fell on Ms. Flowerday’s access day.

[83] On learning that his new partner and children would be joining for dinner, A refused to participate. The event did not proceed. It is of note that A’s birthday was Ms. Flowerday's access day. A expressed the opinion, forcefully, that she wanted to spend the birthday with her mother.

[84] This event took place four weeks into A’s unmonitored visits with Ms. Flowerday.

[85] Not surprisingly, this created a conflict between Mr. and Ms. Flowerday, and between A and Mr. Flowerday. Ms. Flowerday involved A in the process when she ought not to have. On the other hand, Mr. Flowerday arranged the birthday celebration on Ms. Flowerday’s access time, after my March, 2017 Endorsement was released. In other words, he made arrangements, unilaterally, which trenched upon Ms. Flowerday's access.

[86] How have the children fared?

[87] It is clear that as a result of Ms. Flowerday’s continued behaviour, A is showing signs of regression, as Family Bridges noted. A few examples will suffice to illustrate this conclusion:

a) The Broken Arm – Saturday March 18

[88] On Saturday, March 18, Mr. Flowerday’s new partner broke her arm in a snowmobile accident at the cottage and Mr. Flowerday had to take her to the local hospital. He asked A to watch her two siblings and Mr. Flowerday’s new partner’s children. A objected but was told to do so as it was an emergency.

[89] To a certain extent, A’s reaction is understandable. A new woman has entered Mr. Flowerday’s life. She has children. No doubt, A considered this new partner and her children were a threat do A’s existing family relationships. Her reaction, however, is extreme, and illustrates, in all the circumstances, A’s regression.

[90] There were constant text messages over the five hours that Mr. Flowerday was at the hospital, in which A was resentful of having to watch the children, resentful of the attention that Mr. Flowerday’s new partner was receiving, and objected that “no one cares about my mother”. A’s protestations continued after they arrived back at the cottage. A showed no empathy for Mr. Flowerday’s new partner. Instead she remained fixated on what she perceived to be Ms. Flowerday's suffering. A is clearly aligned with her mother during this period. This event also shows that A suffered a relapse in her relationship with Mr. Flowerday which coincided with the restoration of, or her hope of restoration of unmonitored access with her mother.

b) Approach to Family Generally

[91] Since access with Ms. Flowerday re-commenced in March, 2013, both Mrs. Polowin, Mr. Flowerday, and his new partner have commented on the fact that A has grown distant. The change with her was quick and dramatic. She became disengaged. She became rude and dismissive. She was cold, secretive, and resistant to contact. Her moods are low and she is lethargic. While some of the relationship pre-March 2017 has been recovered, it is not fully restored. A refuses to make eye contact with or speak to her paternal family when she is in her mother’s presence. This is understandable, but illustrates the loyalty battle she still finds herself engaged in. What is more disturbing is that Ms. Flowerday and her family, as she and they did before February, 2016, does nothing to correct A’s behaviour or encourage A to believe that she can have loving relationships with all her family members. Indeed, Ms. Flowerday’s failure to correct A’s negative behaviour is implicit approval and tacit encouragement of the behaviour.

[92] Ms. Flowerday’s approach with the other children is similar. Since Ms. Flowerday’s access has commenced B has become more withdrawn. He is less affectionate and often reticent. He is secretive. His confidence has waned. His eye tic has returned. He too has regained his footing but, continues to be affected by Ms. Flowerday’s behaviours.

[93] Luckily, C appears to be relatively unaffected. She is at risk, however. She is attuned to A’s emotional moods and messaging.

Result

[94] Based on the uncontradicted evidence at the hearing and the children’s reversion to behaviours that they exhibited prior to February, 2016, I conclude that Ms. Flowerday’s alienating behaviours have not ceased. While she completed the educational component of the Family Bridges program, she has not internalized any of the education she was given. She has no understanding or insight into her contribution to the dysfunction in the family. She has no insight into the effect of her behaviour on those around her. She has no insight into how attuned her children are to her emotional needs and how un-attuned she is to theirs. Ms. Flowerday is incapable or unwilling to separate her own feelings for her ex-husband and his family and to encourage a loving relationship between the children and Mr. Flowerday and his family. She is unwilling or unable to stop signalling to the children, both with her voice and body language, the anger and contempt she feels for Mr. Flowerday and his family.

[95] In light of Ms. Flowerday’s lack of progress, I am not prepared to increase access. I am prepared to re-arrange access to limit the opportunity for problems to arise.

[96] Ms. Flowerday has much to offer her children. She loves them. That love, however, is not unconditional. There are strings attached which require the children to accept and adopt her views of Mr. Flowerday. She constantly puts them in the loyalty bind. The message is clear:

• loving, respecting and obeying your father means you don’t love, respect and obey me;

• the more you love your father means the less you love me;

• I don’t think your father is a good father and you shouldn’t either;

• I don’t respect your father and you shouldn’t either;

• you are either with me or against me;

[97] Ms. Flowerday’s approach presumes that A, B and C each have a limited supply of love and respect for their parents, and that any amount of either that a child gives to Mr. Flowerday reduces the amount available for her. She does not understand that the children have an infinite supply love and respect for both parents. They do not have to choose between their parents. Only Ms. Flowerday appears to require that they chose.

[98] Until Ms. Flowerday demonstrates substantial change, access will remain the same, quantitatively.

[99] I agree with both parents that Ms. Flowerday’s access, spread over two days a week, is not working. Logistically, the current arrangement, superimposed on the busy schedules of the children, means that much of the children’s time with their mother is spent in the car or in bleachers at a ball park or gymnasium. For Mr. Flowerday, the current arrangement means that he is put to the task of trying to counteract the effect of the children’s time with Ms. Flowerday twice each week. In addition, the current access schedule was a temporary, experimental one that did not address holidays.

[100] Accordingly, effective December 17, 2017, the access schedule set out in paragraph 6 of my March 13, 2017 order is amended and the following access schedule will apply:

Regular access schedule

1. Ms. Flowerday will have access with the children on alternate Saturdays from 9 a.m. to 9 p.m. The first such Saturday access will occur on January 6, 2018.

2. Ms. Flowerday will have the afternoon access with the children every Wednesday from 4 p.m. to 9 p.m.

3. Unless specified elsewhere, Ms. Flowerday will pick up and drop off the children at Mr. Flowerday’s residence.

Holiday Access Schedule

4. The Holiday Access Schedule will prevail over the regular access schedule. To the extent that it displaces regular access, there will be no makeup access.

5. For Christmas access, in even numbered years, Ms. Flowerday will have access from December 23 at 9 a.m. to December 26 at 2 p.m. In odd numbered years Ms. Flowerday will have access to the children from 9 AM December 26 until 9 PM December 29. Otherwise, regular access will prevail over the Christmas holiday.

6. Ms. Flowerday shall have access with the children on Mother’s Day from 9 a.m. to 9 p.m. When Mother’s Day falls on a weekend in which Ms. Flowerday would normally have Saturday access, her Saturday access shall move to Mother’s Day.

7. For the children’s birthdays, in even numbered years, Ms. Flowerday will have access with all of the children from 4 p.m. until 9 p.m. on each of the children’s birthdays. If any of those birthdays fall on a Saturday, her access is not increased. If any of those birthdays fall on a Sunday of the weekend that Ms. Flowerday would normally have Saturday access, her Saturday access shall move to the Sunday. In odd numbered years, Ms. Flowerday will have telephone, or Skype or similar access, for one hour, with each of the children on that child’s birthday.

Summer Holiday

8. Mr. Flowerday will have two consecutive weeks of summer holidays with the children during the first two full weeks of July. That period shall include the weekends at the beginning and end of those first two full weeks. If, during any part of those two weeks he takes the children away from home for more than three consecutive days, he shall provide to Ms. Flowerday an itinerary for the period away from home, along with his contact information.

9. Ms. Flowerday will have access with the children from 9 a.m. to 9 p.m. on the Saturday immediately before and immediately after Mr. Flowerday’s summer vacation period, irrespective of whether those Saturdays are part of her regular access schedule.

Make-up access

10. If Mr. Flowerday or Ms. Flowerday must cancel scheduled access time for an emergency, Ms. Flowerday may ask to reschedule the access. Mr. Flowerday and Ms. Flowerday shall accommodate and agree on make-up time for Ms. Flowerday's access.

11. If Ms. Flowerday wishes to take a vacation that requires her to cancel regular Saturday access time with the children, she shall have make-up access on the next Saturday that is not her regular Saturday access day. She will be allowed two such make-up Saturdays per calendar year. She must notify Mr. Flowerday of the proposed missed Saturdays not less than three weeks in advance.

Extra-Curricular Activities

12. Ms. Flowerday and members of her family may attend the children’s extracurricular and school activities only when they fall during Ms. Flowerday’s access time.

13. If any or all of the children are unable to attend Ms. Flowerday's scheduled access due to their attendance at summer overnight camps, there will be no make-up access for those dates.

14. Mr. Flowerday shall take all reasonable efforts to not schedule activities during Ms. Flowerday’s access time. If activities occur during Ms. Flowerday’s access time, then she shall take the affected child or children to that or those activities.

Access Location

15. Ms. Flowerday may have access where she chooses. If she intends to take the children outside of the City of Toronto, she must advise Mr. Flowerday and provide an itinerary and emergency contact information. If she intends to take the children outside of the Province of Ontario, she must, three weeks before departure, provide an itinerary to Mr. Flowerday and receive his permission. His permission will not be unreasonably withheld.

Communication

16. Ms. Flowerday and her family members will have no direct or indirect communication with the children outside of the scheduled access. This includes communication by phone calls, text messages, emails, face time and correspondence to third parties. The only exception to this is on the day before access Ms. Flowerday may communicate with Mr. Flowerday with respect to any out-of-the-ordinary clothing or other material the children may need to bring during her access time.

17. Except in emergencies involving the children, Mr. and Ms. Flowerday will communicate only by My Family Wizard or other similar third party hosted communication services. Every Monday and Thursday, Mr. Flowerday will post a message summarising the children’s activities and status since the last report. Mr. Flowerday will post reports (along with supporting documents) of any medical appointment, school appointments, report cards, or similar events, within 24 hours of their occurrence.

18. Within 24 hours of the end of Ms. Flowerday’s access time with the children, she shall post a message summarising the children’s activities and status during her access time.

Continued Counselling

19. Ms. Flowerday shall continue with counselling with Dr. Collins or another recognized counsellor in parental alienation, to address her alienating behaviours. Such counselling shall be at her own expense.

20. Mr. Flowerday shall, in his discretion, provide counselling for the children, with the costs to be borne between the parties as set out in previous costs orders.

Access Review

21. There will be a further access review, for one day, to occur within 30 days of the 1st anniversary of this endorsement. Mr. Flowerday is to arrange the date in consultation with Ms. Flowerday and the trial coordinator, once dates are made available by the trial office.

22. Justice Trimble shall remain seized of all custody and access issues.

23. Any issues of compliance with this order shall be brought, by regular motion, before Justice Trimble to be heard between 8:30 a.m. and 10:00 a.m. on any day he is sitting, on a dated to be agreed upon, or on 5 clear days’ notice.

Remaining Seized of this Matter

[101] Mr. Flowerday asked that I remain seized of custody and access issues in this ongoing dispute. Ms. Flowerday did not oppose this. At the hearing, Ms. Flowerday presented two Motions to Change that addressed the fact that Mr. Flowerday has paid no support since my initial order in February, 2016. Mr. Flowerday did not oppose this. He said that because of the effect of my two costs orders, either he owes no support, or Mrs. Flowerday owes him a small amount of money monthly.

[102] The issues she raised in this discussion are a) whether the costs provisions of two orders were cumulative, or whether the second amended the first, and b) whether Family Responsibility Office was to cease enforcement of all support payments (arrears and going forward), or only of arrears.

[103] At the hearing, I advised the parties that I was seized only of matters relating to custody and access. I indicated, however, that with the consent of the parties, I would address the issues raised with respect to support. I have not heard from the parties.

[104] Since Ms. Flowerday did not oppose my remaining seized of custody and access issues, until I decide otherwise, I will remain seized of these issues.

[105] In addition to remaining seized of custody and access issues, I will remain seized of all other issues in this matter. I make this order for the following reasons:

a) I do not know what the status is of child support payments by Ms. Flowerday, it is important for the welfare of the children, that I remain seized of the issue of child support.

b) The issue of spousal support appears to be stalled, and no money spousal support is flowing to Ms. Flowerday (I make no judgement on the propriety of this state of affairs). The question of spousal support has a direct bearing on Ms. Flowerday’s ability to exercise access with the children. Since spousal support has a direct bearing on access, it cannot be separated from access.

c) The question of costs and offsets against spousal support appears to be at the heart of the spousal support issue.

d) The parties appear to agree that I remain involved.

e) The ongoing dispute has consumed massive resources. The trial bankrupted Ms. Flowerday and decimated Mr. Flowerday’s net worth. Luckily, Mr. Flowerday’s earnings have remained high, and the children have not suffered, compared to other children in average income families. Significant public resources have been spent trying to assist this family. The most efficient and effect use of the parties’ and the public’s resources requires that I remain seized of all aspects of this matter. Were I not to remain involved the expenditure of the public’s and the parties’ resources would increase as the parties would be put to the effort of educating a sequence of judges unfamiliar with the file, and the judges would have to spend time becoming familiar with this complex matter.

f) For the same reasons as in (e), above, the best interests of the children require that I remain seized of all aspects of this matter.

g) This case, like D.G. v. A.F. 2014 ONCA 436, requires that someone firmly take direct responsibility for the access and other arrangements, and provide clear directions. Without a detailed understanding of this family it is difficult for any judge to fully appreciate this family.

h) My remaining seized of all aspects of this matter, including motions to change, will lead to the most just, expeditious and timely resolution of the issues in this matter, and meet the objectives of Family Law Rule 2 (2 to 5). By remaining involved, I can ensure that the procedures applied are fair, abbreviated where appropriate, save expense and time, and are appropriate to the importance and complexity of the issues involved. The overall intention in remaining seized of all issues in this dispute is to deal with this case justly.

[106] So long as I am able to deal with this case justly, I will remain seized of it. My role will involve some informal case management, as well. Notwithstanding that I am seized of all issues in this matter, with respect to any specific procedure, I reserve the right to decide that it is fair and just (having regard to Rule 2) to have the procedure heard by another judge.

[107] Given Ms. Flowerday’s status as an undischarged bankrupt, I make no order as to costs.

Trimble J.

Released: December14, 2017

CITATION: Flowerday v. Flowerday, 2017 ONSC 7479

COURT FILE NO.: FS-17-88633-00

DATE: 2017 12 14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Jason Flowerday

Applicant

– and –

Angela Flowerday

Respondent

Counsel: Jason Flowerday, self-represented Angela Flowerday, self-represented

ENDORSEMENT

TRIMBLE J.

Released: December 14, 2017