CITATION: Sine v. Bannister, 2016 ONSC 7750
ORILLIA COURT FILE NO.: FC04-171-03
DATE: 20171229
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
DEBORAH SINE
Applicant
– and –
MICHAEL L. BANNISTER
Respondent
K. Bromley, for the Applicant
M. Stangarone & S. Kirby, for the Respondent
HEARD: November 20, 2017
DECISION
FRYER, J.
I. Introduction
[1] The Respondent (Father) brought this motion for a finding that the Applicant (Mother) was in breach of various orders relating to custody of and access to the parties’ child Aidan Kevin Bannister (born January 13, 2000). He sought a remedial order pursuant to Rule 1(8) of the Family Law Rules namely that the Mother be required to facilitate reunification therapy to repair his relationship with Aidan.
[2] The Applicant (Mother) brought a cross-motion seeking a dismissal of the Father’s motion and costs and an order that any access between Aidan and his Father be at Aidan’s discretion.
[3] Aidan, and his brother, Mitchell Lewis Bannister (born September 17, 1996), have lived primarily with the Mother since the parties separated. Aidan had reasonably regular access with the Father until about January 4, 2016 when Aidan told the Father that he did not want to go for visits any longer. Aidan has not had a scheduled access visit and little communication with the Father since.
[4] Aidan’s decision to terminate access and, it appears a relationship with the Father was preceded by his brother, Mitchell’s decision to terminate his relationship with the Father in 2012.
[5] The Father says that the Mother is responsible for the children’s attitude toward him and that she has engaged in “parental alienation”. The Father’s position is that the Mother’s campaign of estrangement combined with the fact that Aidan is mildly autistic is such that his son’s views and wishes cannot be seen as independent.
[6] The Mother denies having a role in the decision of either child to end his relationship with his Father. She stresses that the Father has a history of aggressive litigation and that he is the author of his own misfortune in terms of his relationship with the children. While she supports Aidan having a relationship with the Father, she cannot now force Aidan to do so.
[7] The parties retained Douglas Manning to act as counsel for Aidan. Mr. Manning advised the court that Aidan’s views and preferences are clear and consistent and that for various reasons he does not wish to attend reunification therapy or to have a relationship with his Father at this time.
II. Background & Chronology
[8] The parties separated in July 2002 after 6 years of marriage.
[9] The Mother later married, Calvin (Kelly) Sine. The children appear to have a close relationship with Mr. Sine. The Father later married Mary Stuart.
[10] The parties’ relationship is a high conflict one. According to the Mother, the parties have been in court over 20 times since the separation. There have been several Motions to Change and numerous orders relating to parenting. The police and the Children’s Aid Society have been involved more than once.
[11] The parties resolved the legal issues arising from the separation initially through the consent order of Salmers J. dated November 13, 2003. At the time of this order, the Mother, who was in a new relationship, was planning to move to Orillia. The children were to reside primarily with the Mother and following the move to have three out of four weekends with the Father.
[12] The access schedule was amended sometime after this initial order such that the Father had alternate weekend access.
[13] On September 2, 2009 Wood J. made an order on consent with respect to various parenting issues including the requirement that the parties attempt mediation as pre-condition before commencing further court proceedings and including provisions governing the ability of each party to communicate with and obtain information directly from professionals involved with the children.
[14] In June 2011 the Father brought a Motion to Change that resolved on consent by order of Wood J. dated June 15, 2011. This order stipulated at paragraph 4 that:
(a) …both children shall continue to attend for the alternating weekend schedule with the Respondent as much as possible, however:
i) if Mitchell expresses a desire to attend a special activity on either parent’s time, his wishes shall be considered and the parties shall be flexible so long as Mitchell makes arrangements directly with the parent for which he is seeking flexibility and has given reasonable notice;
ii) if Mitchell has an activity that interrupts the Respondent’s weekend time, Mitchell make arrangements directly with the Respondent to see him for part of the weekend, and;
iii) Mitchell shall be expected to participate in all holiday events and special occasions as outlined in the schedule.
(b) Paragraph 4(a) above shall also apply to Aidan, and his wishes, upon his fourteenth (14) birthday.
[15] In 2012 the Father and Mitchell had an altercation and the Father was charged with assaulting Mitchell. The Father’s access to both boys was suspended. The Crown ultimately withdrew the charges against the Father. Mitchell has had no relationship with the Father since that time and Mitchell adopted the last name of his stepfather. Aidan and his Father participated in counselling and Aidan resumed regular access visits.
[16] On June 5, 2013 Wood J. granted an order on consent[^1] that set out various terms governing parenting of Aidan including a requirement that the parties use a Communication Book and that the Father was entitled to regular Facebook and phone communication with Aidan.
[17] Aidan continued to attend for access with the Father.
[18] On January 4, 2016 shortly after being picked up by the Mother from an access visit, Aidan sent a text to the Father stating that he had decided to stop attending for access and asking the Father not to call him. The Father states that there was no specific event that led him to terminate access visits; according to the Father he and Aidan had just had a great weekend together playing video games.
[19] Aidan did not attend for access after this.
[20] The Father continued to send polite text messages to Aidan inquiring as to whether he was going to come for access. In June 2016 the Father attended unannounced at Aidan’s school to take him for lunch; Aidan found this visit distressing. The Father also attended at Aidan’s Cadet graduation. The Father did not take any other steps to address his fractured relationship with Aidan until October 2016 when he wrote a letter to the Mother.
[21] On December 16, 2016 the Father served the Mother with this motion originally scheduled for December 22, 2016. The Mother expressed surprise at this course of action as she had assumed that the Father accepted Aidan’s decision. The parties agreed to re-engage Mr. Manning again as counsel for Aidan and the motion was adjourned a number of times.
[22] When I heard this motion on November 20, 2017, Aidan had not had an access visit with the Father for almost two years.
III. Issues
[23] The issues in this motion are as follows:
(a) Is the Mother in breach of any order?
(b) If yes, is an order for reunification therapy appropriate?
IV. Analysis
1. Rule 1(8) – Test for Relief
[24] Rule 1(8) of the Family Law Rules provides as follows:
If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, 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.
[25] In Ignjatov v. Di Lauro 2017 ONSC 3288 (S.C.J.) this court adopted the three part test in terms of Rule 1(8) from Ferguson v. Charlton, 2008 ONCJ 1 (Ont. C.J.):
• First, the court must ask whether there [is] a triggering event that would allow it to consider the wording of either subrule 1 (8) or subrule 14(23). That triggering event would be non-compliance with a court order “in the case or a related case” [subrule 1(8)] or an order “made on motion” [subrule 14(23)].
• Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8), or by ordering that subrule 14(23) does not apply….this discretion will only be granted in exceptional circumstances…..[T]he court’s decision whether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.
• Third, in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).
[26] As with a motion for contempt, in a motion under Rule 1 (8) clear and unequivocal about what should or should not be done Ignjatov at para. 37 citing Cinapri v. Fleck, 2016 ONSC 1297 (S.C.J.).
[27] The determination as to whether there has been a breach of the order is made on the balance of probabilities.
2. Has there been a Triggering Event?
[28] The Father does not detail the alleged breaches of the order in his Notice of Motion rather he references various and numerous alleged breaches in his affidavit evidence.
[29] In order to ground relief under Rule 1(8) the order must be specific as to what is to be done or not done. Many of the alleged breaches by the Father were broad in nature; he did not tie the allegation to a specific paragraph of the order and/or he did not provide sufficient detail of the alleged breach. For these reasons, I have not specifically addressed all of the Father’s alleged breaches.
[30] I have addressed below those alleged breaches that had more specificity and connection to the relevant court order.
(i) Did the Mother breach the Order of Salmers J.’s dated November 13, 2003 for joint custody by failing to involve the Father in medical decisions for Aidan?
[31] The Father alleges that the Mother has historically excluded him from being involved in medical decisions for Aidan and that this constitutes a breach of the order for joint custody.
[32] The Father provides one example wherein the Mother changed a medical appointment to a date when the Father would be out of town. When the Father objected, the Mother replied that Aidan himself was away on the week when the appointment was initially scheduled and that he needed to be seen before school started.
[33] The Father also alleged that the Mother deliberately did not provide him with details of an appointment for Aidan in September 2016 so he, the Father, was unable to attend. The Mother notes that Aidan was then 15 years old and did not want the Father to attend at his medical appointments.
[34] The order of Salmers J. does not contain specific terms regarding the Mother’s obligation with respect to medical appointments. The order of Wood J. dated September 2, 2009 states that both parties may communicate with teachers, doctors and dentists. I find no breach by the Mother of either order.
(ii) Did the Mother breach the Order of Salmers J.’s dated November 13, 2003 by failing to ensure that Aidan adhered to the access schedule:
[35] The Father alleges that the Mother has breached the order of Salmers J. dated November 13, 2003 by failing to ensure that Aidan attends for access. He did not address the fact that the access provisions of this order were modified by subsequent orders.
[36] It is not disputed that Aidan has not attended for any access visit with the Father since February 2016 by his own choice. However, the order of Wood J. dated June 15, 2011 states that Aidan would attend for the regular access with his Father “as much as possible” and that after age 14 Aidan could essentially make his own decisions with respect to the regular access schedule.
[37] Given the wording of this operative order, I find no breach with respect to Aidan’s failure to attend for access.
(iii) Did the Mother breach the Order of Wood J. dated February 22, 2006 by speaking negatively about the Father and/or discussing the court case with Aidan:
[38] The Father alleges that the Mother has on numerous occasions breached the following provision in the order of Wood J. dated February 22, 2006:
applicant and respondent have agreed that neither party shall speak negatively about the other party in the children’s prescence, and both shall make best efforts to prevent all third parties from doing so as well. Furthermore, neither party shall discuss this court case or other adult issues involving the parties with the children.
[39] The Father alleges that the Mother has breached the order when she refers to him with the children as “Michael”. For example, when he calls the children she says “it’s Michael on the phone”. If children historically call a parent “Mom” or “Dad”, to refer to that parent by his or her first name with the children can inappropriately de-personalize and undermine the parental relationship. While this could qualify as speaking negatively, it does not meet the threshold for a finding under Rule 1(8).
[40] In support of another alleged breach, the Father points to a particularly vitriolic e-mail that Mitchell sent to him wherein Mitchell says by way of examples why he does not want to see the Father: “How about last fite you sed you were going to kic the shit out of me or the nasty emails that you send my mom and dad about me….”[emphasis added]. Although it is possible that Mitchell was privy to e-mails, the evidence is not sufficient to demonstrate that the Mother breached the provisions of this order.
[41] The Father also states that on January 1, 2016, at the end of Aidan’s last regular access visit the Mother rolled down her window and asked the Father if he was “deaf or just stupid” in front of Aidan. The Mother denies that this ever happened. On a balance of probabilities, I am unable to find that the Mother breached Wood J.’s order in this respect.
[42] The Father also cites an excerpt from Mr. Manning’s “report” wherein Mr. Manning thought that Aidan was likely exposed to negative messages about the Father from members of the Sine household including the Mother, Mr. Sine and Mitchell. Mr. Manning’s speculation is not sufficient to support a finding that the Mother has breached Wood J.’s order on a balance of probabilities under Rule 1(8).
[43] The parties adjourned this motion from December 22, 2016 on certain terms set out in the order of DiTomaso J. The terms provided that the Father would have a phone call with Aidan on Christmas Day. Aidan and the Father did speak as planned on Christmas Day. In his Affidavit sworn March 21, 2017, the Father states that in the Christmas Day call, Aidan said:
no one’s been coaching me this whole time, and I know what you said….I don’t have that big of a learning disability. You make it sound like I have a huge one. That is not nice to do to your own son.
[44] The Mother did not expressly address this allegation in her Affidavit evidence. Aidan’s comments are concerning as it appears that he was made aware of his Father’s position in court. However, it is not clear how he came to learn of this and I am unable to find on a balance of probabilities that the Mother breached Wood J.’s order.
(iv) Did the Mother breach the Order of Wood J. dated June 5, 2013 by failing to facilitate communication with Aidan
[45] In Paragraph 5 of the order of Wood J. dated June 5, 2013 the Father was entitled to have regular phone and Facebook communication with Aidan and “the parties were to make best efforts” to ensure that such communication took place twice weekly.
[46] The Father asserts that the Mother has prevented his communication with Aidan. He provides examples wherein he left numerous voice mail messages and cell phone text messages. The Father’s evidence is that Aidan told him that he did not receive the phone or text messages and the Father asks the court to conclude that the Mother has deliberately frustrated this term of the order. The Mother denies that the Father has called Aidan regularly and she advises that she “always informed” the children of his calls. I would have hoped that the Mother might do more than “inform” the children that their Father had called - I would hope that the Mother might encourage Aidan to return his Father’s calls or texts. Having said that, the Father’s assertion of a breach of the order is based on information received from Aidan and in the context of this high conflict family, it is very possible that Aidan might have told his Father that he did not receive the communication to avoid telling his Father that he chose not to respond. Furthermore, the Mother’s obligation was a “best efforts” one. I find no breach by the Mother of the order of Wood J. in relation to this issue.
3. Should a Sanction be Imposed?
[47] I have not found that the Mother breached any of the court orders. However, even if I found a breach, I would have declined to make the order requested by the Father for the reasons set out below having regard to the history of the litigation and the nature of the alleged breaches.
[48] Firstly, the evidence suggests that the Father has also played a role in the state of his relationship with both children. The numerous court orders reflect that there were issues with both parties’ behaviour in terms of parenting. The Father alleges that the Mother has a history of breaching court orders dating back to 2003 however she has never been found in contempt and she has never been ordered to pay costs. Although the historical context is important in this type of motion, I was left with the impression that the Father was attempting to re-litigate many of his longstanding complaints against the Mother and her husband.
[49] Secondly, the Father was not proactive in addressing Aidan’s decision to terminate access. He waited some 7 months before writing the letter to the Mother on October 7, 2016. The Mother, not unsurprisingly, felt that by this time the Father had accepted Aidan’s decision as he had accepted Mitchell’s. The Father then brought this motion on the regular motions list returnable December 22, 2016. For various reasons, including the decision to re-involve Mr. Manning, this motion that was initially characterized as urgent was not heard for almost one year and it has been almost two years since Aidan had a regular access visit with the Father. It is possible that the Father was hoping that things would remedy themselves if he gave Aidan some space. However, given Aidan’s age at the time he ended access, there was a very small window within which to act.
[50] Thirdly, given Aidan’s age, the order sought by the Father if granted, would set the Mother up for failure and possibly a motion for contempt. Aidan’s resistance to the therapeutic process would be a significant factor: Testani v. Haughton, 2016 ONSC 5827, 92 R.F.L. (7th) 226 (Ont. S.C.J.) and E.T. v. L.D., 2017 CarswellOnt 12543 (Ont. S.C.J.). In this case, it would not be reasonable to expect the Mother to enforce the order sought: L. (N.) v. M. (R.R.) 2016 ONCA 915 at para. 36.
[51] Lastly, the order sought by the Father may not be in Aidan’s best interests. Aidan has been identified as having mild autism. Despite this challenge, Aidan sounds like a very capable and successful young man. He is at grade level in school, he is very involved in Cadets in a leadership role and he hopes to attend College upon graduation from high school. Aidan’s comment to his Father in the Christmas phone call last year reflects his understanding of his father’s perception of him. If I made the order requested by the Father, there is a real risk that Aidan would see this as his Father undermining his success and independence. In my view, to require Aidan to attend reunification therapy could have the reverse effect and negatively impact his relationship with his Father.
[52] Both of the boys appear to have had a positive relationship with the Father in the past. It is very sad and unfortunate that both children have chosen to terminate that relationship at least at present. Based on the evidence before me the reasons for this state of affairs are multi-faceted - both parties bear some responsibility and could have made different, more child focussed choices.
[53] All of the foregoing is not to say that parties should abandon a repair of both boys’ relationship with their Father. However, this repair must now take place through mutual cooperation of the parties and their children outside of the court process.
[54] Aidan will turn 18 in a couple of weeks and it is not necessary to make any order with respect to ongoing access.
[55] In my view this is not a case for costs unless the party seeking costs served an offer to settle. However, I am prepared to entertain brief submissions.
ORDER:
The motion by the Respondent (Father) is dismissed.
The Applicant (Mother) shall deliver costs submissions not to exceed two pages excluding a Bill of Costs and Offer to Settle on or before January 12, 2018. The Respondent (Father) shall deliver costs submissions not to exceed two pages excluding Bill of Costs and Offer to Settle on or before January 19, 2018. The Applicant (Mother) may deliver a one-page reply on or before January 24, 2018. The costs submissions shall be filed in the court file and e-mailed to my assistant Karen Hamilton.
JUSTICE L.E. FRYER
Released: December 29, 2017
[^1]: This order is marked Temporary however it appears to be a final order in that it speaks of vacating all prior temporary orders and confirms that all final orders made to date shall remain in full force and effect. Furthermore, the Father commenced a fresh Motion to Change on March 19, 2015.