Court File and Parties

COURT FILE NO.: FC-16-2039 DATE: 2018/07/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MABE MAPLE KWAN, Applicant -and- ROBERT WILLIAM DOHERTY, Respondent

BEFORE: Madam Justice S. Corthorn

COUNSEL: Sonia Smee, for the Applicant Cheryl Payette, for the Respondent Jane O’Neill, for the Office of the Children’s Lawyer

HEARD: July 6, 2018

Endorsement

Introduction

[1] The applicant mother brings this motion on an urgent basis to address parenting time with her 12-year-old daughter during the summer months. As of the date of release of this endorsement, there are slightly less than eight weeks left in the ten–week summer vacation period (Monday, July 16 to Monday, September 3).

[2] The level of discord between the parties is such that this matter was identified as a high conflict case and it is subject to case management. When this motion was argued, the parties were days away from attending their fourth settlement conference.

Background

[3] Addyson Doherty (“Addy”) was born in February 2006 and is now 12 years old. She resides with her father and sees her mother on a weekly basis.

[4] There are at least two interim orders governing how the parties’ respective parenting time with their daughter is shared. The most recent interim order was made on consent at a settlement conference held in March 2018. Pursuant to that order, the mother’s time with Addyson was increased from one overnight visit to two overnight visits per week. At present, Addy’s time with her mother starts on Sunday at 11:00 a.m. and continues until Tuesday at 8:00 p.m.

[5] Also still in effect is the interim order of Justice Labrosse dated September 2017. That order was made based on minutes of settlement filed by the parties. For the purpose of the present motion, the mother highlights paragraph 5 of that order. It provides that, “[n]either parent will schedule events on the other party’s parenting day. Communication regarding these events will occur between the parent and Addy.”

[6] None of the parties referred to the final paragraph of the order of Justice Labrosse. It provides for the “agreement” with respect to parenting time to be reviewed in two months. The parties were before the court in November 2017—approximately two months after the date of the order made by Justice Labrosse. At that time, Justice Sheard made an order that requires the parties to present a united front to Addy. Once again, the order was made on the consent of the parties.

[7] From mid-March through June 2018, the mother’s parenting time with Addy has been two overnights—the Sunday to Tuesday period as noted in paragraph 4, above. On this motion, the mother requests that parenting time for the summer months be on a week-on/week-off basis, with the weeks running from Sunday to Sunday. The mother’s position is that for the summer months, a 50-50 split of parenting time is the appropriate default position.

[8] The respondent father does not agree with such a significant change from the parenting time as ordered in March 2018. His position is that the default position is a schedule based on Addy’s best interests.

[9] The Office of the Children’s Lawyer’s (“OCL”) was appointed in January 2017, by Master Champagne, as she then was, to represent Addy. The position of the OCL is that (a) the parenting schedule continue as agreed upon in March 2018, and (b) the mother has additional parenting time with Addy for a single, five-day period during the summer months. The father does not agree with the recommendation for Addy to spend five consecutive days (including overnights) with her mother.

[10] The disagreement about the parenting schedule arises in the context of a damaged relationship between mother and daughter, the mother’s desire and ongoing attempts to repair that damaged relationship, the continuing discord between the parties, and the lack of progress made by the parties to minimize that discord in particular as it relates to assisting Addy with the re-unification process.

Procedural Relief Requested

[11] The mother also requests procedural relief in the form of an order striking certain paragraphs of the father’s responding affidavit. In that regard the mother relies on r. 14(19) of the Family Law Rules, O. Reg. 114/99 (the “FLR”). She submits that the relevant paragraphs do not meet the requirements of the FLR with respect to evidence based on information and belief.

[12] In addition, the mother requests that an exhibit be struck from the father’s responding affidavit—the letter of Dr. Cebulski. The OCL supports the mother’s position in that regard. As an alternative, the OCL submits that the letter is to be given minimal weight.

The Issue

[13] The substantive issue to be determined on this motion is a schedule for parenting time throughout the summer months in 2018.

[14] There are two procedural issues to be addressed: a) whether any or all of the subject paragraphs from the father’s responding affidavit are to be struck; and b) whether the June 2018 letter from Dr. Cebulski, attached as an exhibit to the father’s responding affidavit, is to be struck.

Analysis

[15] It is unfortunate that the level of discord and mistrust between the parties is such that summer camp—an activity intended to provide enjoyment and personal growth for Addy—results in the parties being back before the court again. The mother submits that the proposals made and the timing of the proposals about summer camp were a deliberate attempt on the father’s part to detract from the mother’s parenting time during the summer months.

[16] The father denies any intention of that kind. He submits that he was simply responding to requests from Addy, made at a time when some of her friends (and their parents) were getting organized for summer camp registration.

[17] There is no evidence from either party as to the specific registration periods (opening and closing dates) for the camps in which Addy is registered for the summer. Registration for camps may well have opened in March or April, with the potential for spots at the camps to be filled quickly. If so, then it was important that registration be carried out in a timely manner to ensure Addy her spots in various camps.

[18] I note that the communication with respect to summer camp began relatively innocuously with the following email from the father to the mother on March 20, 2018:

Hi Mabe,

Addy wants to attend camp again this year with her friends. This will be her last year because next year she will not be eligible due to age. Addy wants to take three camps on the following weeks ….

July 23rd to 27th

August 7th to 10th

August 20th to 24th

I need to know if you are agreeable with her attending camp with her friends as spots book up quickly.

The camps run from 8:30 a.m. – 4:30 p.m. Monday to Friday with the exception of the August 7th week on both our parenting times.

Please let me know as soon as possible.

Thanks

Rob

[19] The wording of the initial email does not appear to be manipulative or calculated in any way to specifically target the mother’s parenting time. I find that it was not the father’s intention, at least initially, to disregard paragraph 5 of the order of Justice Labrosse.

[20] What ensued, however, was communication by email that provides an example of the inability of both parties to:

• Communicate effectively and respectfully with one another;
• Be mindful that Addy’s best interests are the paramount consideration;
• Put Addy’s best interests ahead of their respective personal stakes;
• Recognize that Addy (and her well-being) is not a pawn in the parties’ ongoing dispute; and
• Negotiate a reasonable solution of their dispute.

[21] Based on the emails exchanged between the parents, I find that the mother agreed with Addy attending swim camp and one week (not two) of jiu-jitsu camp. In that regard, I refer to the mother’s April 9, 2018 email (C.R. Vol. 4, Tab 1E) and April 25, 2018 email (C.R. Vol. 3, Tab 5C).

[22] A concern expressed by the mother in her emails is that she receives time to make up for Mondays and Tuesdays on which Addy spends time at camp that would otherwise be the mother’s parenting time. I understand that the mother wants to maximize both the amount and quality of time spent with Addy. Parenting time does not, however, mean that mother and daughter must spend every waking moment together. As I am certain the mother appreciates, parenting time includes supporting Addy in the activities she wishes to pursue.

[23] I find that Addy’s registration in the camps to which her mother agreed is reasonable. I also find that Addy’s time at camp on the Mondays and Tuesdays does not, during the two-weeks agreed to, entitle the mother to “make-up time.” For those weeks, the mother agreed to Addy’s choice as to how she wished to spend her time on the Monday and Tuesday.

[24] I find that there was no agreement between the parties with respect to the second week of jiu-jitsu camp. I agree, however, with the position of the OCL as set out in the affidavit of Janet Claridge (the OCL Clinical Investigator): it would, at this point, be unfair to Addy to take her out of any of the camps for which she has for some time been both registered and expecting to attend.

[25] Given the lack of agreement to the second week of jiu-jitsu camp, the father registered Addy for that camp in breach of the 2017 order of Justice Labrosse. I find that the mother is entitled to make-up time for the daytime hours with Addy for that Monday and Tuesday. That time shall be made up by extending the mother’s parenting time from Tuesday at 8:00 p.m. to Wednesday at 8:00 p.m. during a week that Addy is not registered for camp. I specify the Tuesday overnight for the additional time based on my understanding that the mother works in her family’s restaurant on Saturday nights.

[26] There is insufficient evidence to support the week-on/week-off schedule proposed by the mother for the summer months. The only evidence in support of increased parenting time for the mother is that of Ms. Claridge. One or both of Ms. Claridge and counsel for Addy had numerous contacts with each of Addy, her parents, and various educational, medical and other professionals involved with the family. Based on those contacts, the OCL’s recommendation is for Addy to have a single holiday period of a minimum of five days with her mother.

[27] It is not clear from the Claridge affidavit, whether the five days are in addition to or include the Sunday to Tuesday period already in existence. I find that it would be too great an increase for Addy to increase the number of consecutive overnights with her mother from Sunday to Tuesday, to Sunday to Sunday (i.e. the existing Sunday to Tuesday plus five additional days) of parenting time, including overnights, with her mother.

[28] In summary, the mother shall have a single, five-day period of parenting time with Addy during the summer months, on the following terms:

a) The five-day period shall occur during a week in which Addy is not registered for a summer camp; b) The five-day period shall include the regular, weekly, Sunday to Tuesday parenting time currently in effect; and c) The parties shall agree upon the days of the week on which the five-day period is to start and to end.

Procedural Relief

a) Dr. Cebulski’s Letter

[29] A copy of a letter dated June 22, 2018 from Dr. Cebulski, addressed to the father, is included as an exhibit to the father’s affidavit (C.R. Vol. 4, Tab 1B and the “Letter”). Dr. Cebulski was, until recently, Addy’s treating psychologist. The mother seeks to have the Letter struck as an exhibit. The OCL supports that request and submits, as an alternative, that the Letter is to be given little weight. The father’s position is that the circumstances surrounding the release of the Letter go to weight and not propriety of the document as evidence.

[30] The parties had originally provided their respective consent to the release of a report from Dr. Cebulski to the OCL and to the parties. Dr. Cebulski appears to have attempted to double-check for consent. When contacted in that regard by Dr. Cebulski, the father appears to have at least temporarily placed on hold, if not withdrawn, his consent to the release of the report. I am unclear as to the circumstances that led to Dr. Cebulski providing the Letter to the father, without disclosing a copy of it to either the mother or the OCL.

[31] There is the potential for the father to seek, at a later point in this process, to rely on the contents of the affidavit filed in response to the mother’s motion. The time to address whether the Letter, as an exhibit to that affidavit, is properly part of the continuing record is now and not at a later date.

[32] In the opening paragraph of the Letter, Dr. Cebulski says, “My comments, therefore, in no way should be considered to represent an opinion about custody and access.” In the same paragraph, he acknowledges that much of the information summarized in his letter is “under dispute”.

[33] I agree with the submission by the OCL, that it was not Dr. Cebulski’s intention for the Letter to be relied on in the context of the custody and access dispute. I find that Letter is not properly part of the Continuing Record and shall be struck.

b) Evidence Based on Information and Belief

[34] In the motion confirmation form filed by the mother, a request is made for a part or all of a number of paragraphs in the father’s responding affidavit to be struck. Set out below is a list of the paragraphs in issue, the basis for the request that they be struck, and my determination.

Paragraph 13 – The third and sixth sentence (as hearsay): The third sentence is a statement as to the number of sessions that Addy attended, together with her mother, with therapist Ms. Bleecker. The father may well have personal knowledge of the number of sessions that Addy attended in that regard. The sixth sentence states that as of June 2017, Addy was “still adamant that she would not spend [overnight with her mother]”. That sentence may reflect the father’s perception of Addy’s outward expression of her desires at that time (as opposed to a re-statement of information provided by Addy to her father). These sentences are not struck.

Paragraph 16 – The first and second sentence (as hearsay): The first sentence appears to be the father’s opinion as to the impact of the overnight visits by Addy with her mother. In the second sentence the father says, “Addyson does not want to sleep over with her mother.” Although not identified as such, it is possible that this sentence reflects the father’s belief as to his daughter’s preferences. It is also possible that the father was summarizing statements made to him by Addy. These sentences are not struck.

Paragraphs 20 and 21 (because they reference communication that occurred during a settlement conference): These paragraphs reference what transpired at and documents filed for the purpose of the settlement conference. Both paragraphs are struck in their entirety.

Paragraph 22 – The second sentence (as hearsay): The second sentence of this paragraph reads, “I sent him a copy of the OCL Brief (not my Brief as the Applicant stated in her affidavit.” The “him” is Dr. Cebulski. This sentence does not contain hearsay and is not struck.

Paragraph 23 (as hearsay): In paragraph 23, the father purports to set out the conclusions reached by Dr. Cebulski. He does so, however, without referencing the Letter and without identifying that he relies on the Letter as the source of information upon which he bases the statements. I agree that this paragraph does not meet the requirements of the Family Law Rules with respect to evidence based on information and belief. This paragraph is struck.

Paragraph 24 – All but the second sentence (as hearsay and opinion): I agree that paragraph 24 includes the father’s opinion and information provided by another without identification of that individual and the father’s statement as to his belief of the truth of the information provided. All but the second sentence of paragraph 24 is struck.

Paragraph 37 – The final sentence: In the final sentence of this paragraph, the father sets out information he learned regarding the mother’s whereabouts on a particular day. The father does not identify the source of the information; nor does he state his belief as to the truth of the information received. This sentence is struck.

Other

[35] The mother requests that a finding of parental alienation be made on this motion. A request for that relief was not included in the mother’s notice of motion or in her factum. Neither the father nor the OCL were given notice that the mother would, on the return of the motion, be requesting a finding of parental alienation on the part of the father.

[36] The mother’s request is premised on the decision of Gray J. in Hazelton v. Forchuk, 2017 ONSC 2282. In that case, a finding of parental alienation was made on an interim motion. The mother submits that the primary relief sought in Hazelton related to parenting time and that the finding of parental alienation was ancillary to the primary purpose of the motion.

[37] For two reasons, the mother’s request for a finding of parental alienation by the father in the matter before me is denied, without prejudice to the mother to pursue that finding at a later stage of this matter. First, it would be inappropriate and unfair to determine such an issue on no notice to either the father or to the OCL.

[38] Second, I do not read the decision in Hazelton in the same way as does the mother. It is entirely possible, if not probable, that the primary issue on the interim motion in Hazelton was parental alienation. Justice Gray begins his decision as follows, “This case is about parental alienation. Regrettably, there is no real alternative other than to deal with this issue by way of an interim motion.” Reintegration therapy was ordered and Gray J. considered it premature to address a residential schedule until reintegration therapy was complete.

[39] I am concerned about the manner in which the issue of parental alienation was raised on behalf of the mother in the context of this motion. Requesting a finding of parental alienation without notice to the opposing parties is inappropriate in any case. It is even more inappropriate to proceed in that manner in a matter that has been designated as high-conflict.

[40] This interim motion is about a parenting schedule only. Much of the evidence relates to the struggles the mother has faced and continues to face in the process of re-unification with Addy. A number of the professionals involved have expressed their respective opinions with respect to the father’s lack of engagement and his lack of pro-active support for Addy’s engagement in the re-unification process. Whether the evidence supports a finding of parental alienation remains to be determined on another occasion.

Disposition

[41] In summary, I order as follows:

1. Addy shall be permitted to attend the three summer camps for which she is registered (July 23 to 27; August 7 to 10; and August 20 to 24).
2. The mother shall be entitled to additional parenting time for a single Tuesday at 8:00 p.m. to Wednesday at 8:00 p.m., to be agreed upon by the parties and to occur during a week that Addy is not registered for camp.
3. The mother shall, prior to Addy’s return to school in September 2018, have parenting time with Addy for a single, five-day period on the following terms: a) The five-day period shall occur during a week in which Addy is not registered for a summer camp; b) The five-day period shall include the regular, weekly, Sunday to Tuesday parenting time currently in effect; and c) The parties shall agree upon the days of the week on which the five-day period is to start and to end.
4. The following paragraphs and exhibit are struck in whole or in part from the father’s responding affidavit at Volume 4, Tab 1 of the Continuing Record: a) Paragraphs 20 and 21, both in their entirety; b) Paragraph 23 in its entirety; c) All but the second sentence of paragraph 24; d) The final sentence of paragraph 37; and e) The June 2018 letter of Dr. Cebulski.

Costs

[42] In the event the parties are unable to agree upon costs of the motion, they may make written submissions as follows:

a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs; b) Written submissions shall comply with sub-rule 4.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with sub-rule 4.01(1), item 2 of the Rules of Civil Procedure with respect to font size; d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages; e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this endorsement is released; and f) In the event any party wishes to deliver a reply to the costs submissions of an opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this endorsement is released. Reply submissions shall comply with paragraphs (a) to (d) above.

Madam Justice Sylvia Corthorn Date: July 17, 2018