Court File and Parties

COURT FILE NO.: FC-16-665 DATE: 2018/10/12 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE, FAMILY COURT

RE: A.T., Applicant AND: K.C., Respondent

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Jennifer E. Jolly, for the Applicant Lauren McMurtry, for the Respondent

HEARD: October 11, 2018

Reasons for Decision

[1] The parties have been litigating over the appropriate parenting arrangements for their daughter, C.B. On October 11th, 2018 I heard a motion to order the child returned to Ottawa and put into the care of the father pending the trial that is scheduled for January of 2019.

[2] It is important that there be an immediate decision because if I reserve to give extensive reasons the matter will become moot. The parties filed many volumes of material and the motion took a full day to argue. I advised the parties I would provide them with an immediate decision and summary reasons. I do so now.

[3] I have not taken the time to set out the facts in exquisite detail nor to review the numerous cases that were cited to me. Suffice to say that the facts in this case are grounds for deep concern, that mobility cases are never easy, that there is reason to review the temporary order and the best interests of the child must always be the guiding principle.

[4] I acknowledge that a high level review of the facts may lack precision and it is possible there may be errors in reciting dates or specifics. I reserve the right to revise or supplement these reasons or to correct typographical errors should that be necessary.

Background Facts

[5] The pertinent facts are these. The child was born on [...], 2012 and will be 6 years old in a matter of days. The exact duration of the relationship between the applicant and the respondent and the precise role of each as a parent is in dispute but they have been parenting separately since 2013 or 2014. There is no doubt that each of the parties were involved parents and for at least four months when the child was young, the respondent was the primary caregiver while the applicant completed a PhD.

[6] The parties were never married. In July of 2015 the applicant married S.T. who is a professor at Washington University in St. Louis, Missouri. Despite the marriage, the applicant continued to reside in Ottawa and on November 17th, 2015 the parties entered into a parenting agreement providing for joint custody and equal parenting time.

[7] At some point in time the parenting agreement broke down because the applicant announced her wish to relocate to Missouri with the child. The legal proceeding was triggered when the father took unilateral action to remove the child from the daycare and an urgent motion was heard on May 2nd, 2016. At that time Justice Shelston granted an interim interim order for joint custody with parenting time on a 2-2-3 schedule. That order was then continued at a case conference on May 16th, 2016. The Office of the Children’s Lawyer was also appointed.

[8] The status quo continued with the joint parenting schedule ordered by Justice Shelston. In the meantime, after a false start, the OCL appointed social worker completed an investigation and report. The applicant did not agree with the report and filed a notice of objection. She also hired Dr. Leonoff to critique the report. This resulted in a lengthy supplementary report with which the applicant also disagrees.

[9] The essence of the OCL report was a recommendation to continue the joint custodial regime with sharing of parenting time provided both parents continued to live in the same city. The clinical investigator formed the impression that the applicant was actively seeking to undermine the respondent’s role as a father and a parent and recommended against permitting the mother to relocate to Missouri with the child for that reason.

[10] In January of 2018 there was a shocking development because the respondent was charged with sexual offences on the basis of a disclosure made by the child. Though he professed his innocence and believed the child was coached, the consequence of the pending criminal charges was severe. Due to a combination of his bail conditions and the position taken by the Children’s Aid Society, the applicant had the de facto care of the child and the respondent was not allowed any access.

[11] It was in this context that the applicant brought a motion requesting the approval of the court to relocate to St. Louis on a temporary basis pending the trial. That motion was returnable on May 10th, 2018. It did not proceed because the parties agreed to a detailed temporary order.

[12] By the terms of that order, interim joint custody continued, the respondent’s motion for access was adjourned pending the outcome of the criminal proceeding and the applicant was allowed to move to Missouri at the end of the 2017/2018 school year on “an interim and without prejudice basis”. In legal terms, “interim without prejudice” indicates that the move should not be considered by the court as disturbing the legal status quo.

[13] The order also fixed the jurisdiction in Ontario, prohibited either party from commencing proceedings in any other jurisdiction, and provided that the child would be returned to Ontario if the court so ordered. It provided for ongoing consultation and information exchange in respect to schooling, medical treatment travel and residence. Importantly for the present motion, the order also provided that when the criminal charges were resolved, there would be an assessment pursuant to s. 30 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 and an expedited trial would be requested.

[14] On August 27th, 2018 the Crown Attorney advised the criminal court that all charges were withdrawn. Apparently when the prosecutor interviewed the child (who of course was only 5 years old) she recanted the disclosure she made originally and indicated that the events she had described to the police did not occur.

[15] For purposes of this motion I reviewed the transcript of the criminal court proceeding and also the notes taken by the Crown Attorney during the interview. There was objection to the latter as hearsay which of course it is. There is an affidavit identifying the notes and the notes purport to record information provided by the child. But a summons had been issued to Mr. Ramsey and for today’s purpose I am not determining the accuracy of the disclosure or the reliability of the subsequent recanting of that disclosure. The important fact is the charges are withdrawn and the restrictions on access are no longer in effect. I admitted the evidence for the limited purpose of explaining why the charges were withdrawn.

[16] On September 19th, 2018 the parties appeared before Engelking J. who has effectively been case managing this matter since the consent order was signed. She directed that as the trial had now been scheduled on a priority basis for January of 2019, the issues of resumption of contact, the location of the assessment, and the person to conduct the assessment needed immediate determination. A date was fixed for this motion and a timetable set for exchange of materials.

The Issues

[17] The respondent seeks an order for the immediate return of the child to Ottawa. He wishes the pre-existing status quo to be re-established and for his parenting relationship with the child to resume. He proposes that C.B. go back to the school she was attending last year and be put into the care of the father until the trial.

[18] I am also asked to order the OCL to update the report in lieu of the s. 30 assessment or alternatively to appoint a local clinician to complete the assessment.

[19] The applicant requests the child be allowed to remain in St. Louis until the trial but proposes significant parenting time and regular contact between the child and the respondent. The applicant also proposes that the assessment be completed by a psychologist in St. Louis who is available, qualified and ready to proceed.

[20] In simplest terms, the issues are where the child should live and go to school until the trial, what parenting time should be provided to the other parent, who should conduct the assessment and what other terms should be imposed.

Considerations

[21] Based on the evidence before me, I make the following findings and observations.

[22] At this point in time, the child is only in the United States temporarily. That is so because the authority to take her to Missouri is set out in a court order with specific conditions. It is also so because neither the applicant nor the child currently have status in the United States. They are there as visitors. The applicant remains employed by the federal government here in Ottawa.

[23] On the other hand, the applicant’s husband works in St. Louis and is an American citizen. The applicant does wish to relocate permanently with the child. The applicant and her husband have a child together who is of course a half sibling of the child, C.B. They hope to have more children. The applicant sold her house in Ottawa when she took C.B. to St. Louis.

[24] Although C.B. is in St. Louis at the moment, Ottawa has been her home her entire life. Until the end of last year, the parties shared equal parenting time. That was disrupted by the criminal charges and conditions which made it impossible for the child to be in the care of the respondent. Otherwise the equal parenting time would have continued until the applicant’s motion to take the child to the United States was heard.

[25] The temporary court order which disposed of the motion was a consent order obtained at a time when the respondent was prohibited from having the child in his care. Those restrictions no longer apply and the criminal charges were withdrawn unequivocally. It is only because of those restrictions and the consent order that the child has been in the care of the applicant since January. The criminal charges were withdrawn in August. The respondent had not had direct physical contact with the child until this past weekend (Canadian Thanksgiving).

[26] The child has been in Missouri only since the beginning of July. In mid-August she started school there but the applicant enrolled her in a different school than the one contemplated in the court order and without the approval of the respondent. She has now been moved to a French immersion school in St. Louis but she has only been attending there since the beginning of October. The American school authorities originally wished her to repeat kindergarten but she is now enrolled in Grade 1. During the last school year, C.B. was in French immersion in Ottawa and completed kindergarten here.

[27] The applicant has now disclosed that she is pregnant. She advises that she has previously miscarried and on the advice of her physician she will not risk flying or taking lengthy car trips in the early months of the pregnancy. Consequently, though the child was brought to Ottawa to have a visit with the respondent this past weekend, the child was accompanied by her step-father and not by the applicant who remained in St. Louis. The applicant advises she will be 7 months pregnant at the time of the trial and expects to be able to come to Ottawa at that time.

[28] The applicant advises the court that if the child is allowed to continue to stay in St. Louis pending the trial, she will facilitate regular parenting time with the respondent. She proposes frequent Skype contact and agrees to have her husband bring the child to Canada once per month for a weekend visit as well as a week at American Thanksgiving and at Christmas. She would agree to every second weekend if the respondent is prepared to come to St. Louis.

[29] The respondent is not prepared to risk attempting to cross the border until his criminal lawyer can ascertain that the record of charges for sexual abuse have been expunged. He fears that if he is denied entry to the U.S., he might become permanently inadmissible.

[30] I am of the view that the end of the restrictions on direct contact between the respondent and the circumstances in which the criminal charges were withdrawn do constitute a change in circumstances. Another change is the inability of the applicant to travel. This justifies a review of the temporary order.

[31] On the other hand, the trial is scheduled for January and I am reluctant to have C.B. change school yet again for what may turn out to be a temporary return to Ottawa if the applicant is successful at the trial. It is unfair to the respondent but the reality is he has not had the child in his care since January. Face to face parenting time has only just resumed. I am reluctant to risk the possible trauma of abruptly removing the child from her mother’s care when the court does not have the benefit of a clinical assessment dealing with the psychological or other clinical issues that appear to be manifesting themselves.

[32] There are two factors which weigh in favour of changing the temporary order and bringing the child back to Ottawa in the interim. The first would be to repair and rebalance the artificial rupture which took place in the joint parenting regime due to the criminal charges. The second would be to address the respondent’s fear that the child is being systematically alienated from him and his role as a parent is being undermined. Notwithstanding that the current situation may not have changed the legal status quo, the respondent fears that the applicant has engineered events to give herself the upper hand in the parenting dispute. His fears are not groundless.

[33] There is significant evidence that the applicant has been attempting to undermine the relationship between the child and the respondent and to manipulate the child. She denies this of course and a final determination will only be possible at the trial. Still there is reason to be concerned as outlined in the OCL report, the affidavits of other parents and the evidence of the respondent all of which could support such a finding. Whether or not it is the result of intentional malicious efforts by the applicant, there is significant reason to be concerned that the child is becoming alienated from her father.

[34] In particular the events giving rise to the criminal charges are cause for grave concern. The disclosure by the child was taken seriously by the authorities but subsequently recanted. The respondent believes the only explanation for this is that the child was coached by the applicant. Another explanation might be that the child is experiencing tremendous psychological pressure over the parenting dispute and the mobility issue. While this suggests the need for intervention, it also suggests the need for caution. This underscores the need for a s. 30 clinical assessment by a psychologist.

[35] I note that nowhere in her evidence does the applicant suggest there is any basis to believe the respondent poses a risk to the child or that the child would be unsafe in his care. In fact he was provided with access on the thanksgiving weekend and the applicant proposes significant access between now and the trial date. It is her evidence that she acknowledges the benefits of a relationship with both parents and she professes to be willing to take steps to restore and maintain the relationship between the child and the respondent.

[36] Because the parties have failed to agree on a person to conduct the parenting assessment despite the terms of the order and the direction given by Justice Engelking, there is a practical problem posed by the approaching trial date. This should not have occurred. The completion of a s. 30 assessment was a term of the order granted in May. The parties were obliged to agree on a person to complete the assessment and the failure to agree now limits the choice. It would not be reasonable to adjourn the trial for this to be completed.

[37] The applicant puts forward Dr. Reid, an American psychologist resident in Missouri who advises that he is qualified to conduct assessments, is prepared to come to Ottawa and is prepared to complete the assessment before the trial in January. The respondent proposes either to simply update the OCL report or to retain someone local. They have proposed Ms. Bourgeois who is a social worker qualified to conduct assessments but not qualified to give a psychological opinion. I have not been provided with the name of any psychologist who has conducted assessments in Ontario and who is available within the necessary time frame.

[38] Updating the OCL report is in my view necessary due to the events that have transpired in the past year. This is not an acceptable alternative to the assessment because the applicant is challenging the report and because the report does not grapple with psychological issues in depth. In my view the s. 30 assessment will require a psychologist. It should be noted that the parties have already involved certain local experts who may be out of the running for that reason. Dr. Leonoff, for example was engaged by the applicant to critique the OCL report of Ms. Claridge including her methodology and the need to investigate clinical issues.

[39] I have decided that the best interests of the child will be served by allowing her to remain in the temporary care of her mother in St. Louis but by providing the child with time in the care of her father, ensuring regular contact and imposing other safeguards. In the meantime I will ask for an OCL update and require that the assessment get under way without further delay.

[40] I am imposing the primary burden of financing travel and other conditions of this order upon the applicant as the move to St. Louis was for her benefit.

Disposition of the Motion

[41] As I indicated at the end of the hearing, I propose to sketch out the broad strokes of an order but I invite counsel to negotiate the precise mechanics and to include them in a formal order for my review. I will remain seized of the details if they cannot agree.

[42] For the reasons enunciated above, my decision is as follows:

a. The child may remain in St. Louis in accordance with the existing temporary order and shall continue to be enrolled in Grade 1 in French immersion.

b. The applicant shall at her expense return the child to Ottawa so that she can spend time in the care of her father for the following periods of time: i. One weekend each month; ii. One week during American Thanksgiving; iii. One week during the Christmas holidays; and iv. Additional holiday time during school vacations if the trial is adjourned or postponed

c. The respondent shall also be entitled to exercise access an additional weekend each month at his expense in St. Louis or in Toronto.

d. During the time that the child is in the respondent’s care for a week, the applicant have at least one Skype call with the child.

e. The respondent may at his option exercise telephone or Skype access with the child a minimum of three times per week.

f. The applicant shall not be present during the calls or video conference except to the extent necessary to assist with establishing the call and ensuring the child has privacy. The calls are not to be recorded.

g. There shall be such other access as the parties may agree upon or the court may subsequently order.

h. Each of the parents shall have the duty and responsibility to teach the child to love and respect the other parent. This shall include encouraging and promoting contact with the other parent and addressing the other parent and members of his or her family by the form of address he or she prefers.

i. There will be an order requesting the Office of the Children’s Lawyer to update the OCL report on an expedited basis for purposes of the trial.

j. Effective October 17th, 2018 there will be an order that the s. 30 assessment be conducted by Dr. Reid as proposed by the applicant, such assessment to be completed and a report available before the end of December.

k. The respondent will have until October 16th, 2018 to provide the name of a qualified psychologist in Ontario who undertakes to complete the assessment prior to the end of this year including travelling to St. Louis as may be required. If such an individual is identified and is acceptable to the applicant he or she will be appointed to complete the assessment instead of Dr. Reid.

l. In the event that such a person is identified by October 16th, 2018 and is not acceptable to the applicant, I may be approached for further direction. Counsel may provide the C.V. of each of Dr. Reid and the proposed individual as well as any conditions, terms and fees along with written argument of no more than a single page. The submissions may be sent to my attention by e-mail and I will summarily decide the matter.

m. The parties are to provide all possible assistance to the person completing the assessment including making themselves available, making the child available, completing releases and authorizations to contact collateral sources in a timely manner.

n. No later than October 17th, 2018 each of the applicant and the respondent shall each deposit the sum of $5,000 in trust with his or her counsel to cover the cost of the assessment.

o. The assessment is to be completed and the report available, no later than the end of December, 2018.

p. Counsel are to immediately confer regarding the conduct of the trial with a view to narrowing the issues, preparing a statement of agreed facts and documents and otherwise ensuring trial efficiency. They are to update the trial scheduling form and advise the trial co-ordinator of any changes to the length of the proposed trial prior to the assignment court date.

q. The trial remains peremptory on both parties and indicated as a priority on the January 2019 trial list.

r. As indicated in the note at the top of this decision, there will be an order prohibiting publication of information that might identify the name of the child. In any published version of decisions in this proceeding, the parties and the child are to be referred to by initials.

s. I will hear argument on the costs of this motion should that be necessary. Alternatively the costs may be determined by the trial judge.

Mr. Justice C. MacLeod Date: October 12, 2018