Court File and Parties

COURT FILE NO.: 3817/14 DATE: 2019-02-08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexander Bishop, Applicant AND: Ishtar Sarah Gabriel, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Mr. Sean Heeley, Counsel, for the Applicant Mr. Matthew Carson, Counsel, for the Respondent

HEARD: February 8, 2019

Endorsement

1. The biggest challenge of Family Court motions days is that judges often have to make the toughest decisions on volatile and potentially dangerous parenting issues, based on untested and incomplete affidavit materials.

2. By the time matters get to trial, family dynamics have often stabilized; people have calmed down; patterns and routines have come to be established; and there is plenty of time to call (and scrutinize) as much evidence as may be required, at an oral hearing, to ensure that every possible fact and legal argument is thoroughly considered. The luxury of time allows trial judges to proceed slowly and cautiously.

3. In contrast, reading quickly and strategically prepared affidavits rarely gives a motions judge a complete (or accurate) sense of what’s really been going on – and more importantly what children will experience in the immediate future in each of the competing scenarios being advanced in urgent motions.

4. Our “best interests of the child” mandate requires that we always exercise caution, diligence, and a child-focussed approach. a. Non-urgent and major issues are usually deferred, to provide opportunities for more information and discussion. b. The child’s perspective – and the child’s physical and emotional security – are of paramount consideration. c. Major changes to a child’s situation are especially to be avoided – especially on a temporary basis – unless there is some urgent problem or situation which needs to be corrected, to protect or improve life from the child’s perspective. d. Indeed, the well-known long-term reluctance to disturb the status quo often intensifies conflict at the motions stage, because of the obvious strategic implications when a parent (a) creates a favourable temporary arrangement, and/or (b) prevents the other parent from creating a favourable temporary arrangement.

5. We go slowly whenever we can. We prefer to go slowly.

6. But today – as on most motions days – there will be files where each parent has filed lengthy affidavits effectively screaming: “SOMETHING TERRIBLE IS HAPPENING. YOU’VE GOT TO DO SOMETHING!”

7. Deciding can be extremely difficult.

8. But sometimes doing nothing is simply not a responsible option.

9. This is one of those cases. a. The bad news is that each parent has provided me with a lengthy affidavit. Each trying to convince me that the current situation is intolerable, and a major change is immediately required. b. The good news is that I am not a stranger to this long-standing high-conflict file. Within the past year I have made a series of temporary and final orders, based on factual acknowledgements or determinations which are not in dispute. c. So while the current affidavit materials are incomplete and untested, I am able to draw upon my familiarity with the family history; the litigation history; the circumstances under which previous orders were made; and this court’s expectations as to what each parent was expected to do – or not do. d. This is a good example of why judges should remain seized of high conflict parenting disputes, to ensure consistency, efficiency, and contextual analysis.

10. The family history, briefly: a. The parties were married in December 2006. b. They separated on July 23, 2012. c. They have a now 10 year old daughter Sophia, and a now eight year old son Benjamin. d. There has been a protracted history of litigation concerning these children. e. At times each party has had counsel or represented themself. f. Currently, each party has counsel.

11. At the beginning of 2018 I presided over a trial which continued for seven days. At the time the mother was represented by experienced family law counsel. The father represented himself. During the course of the trial the parties signed two separate partial minutes and ultimately on the morning of February 1, 2018 (the seventh day of trial) the parties signed a final settlement document which resolved all issues on a final basis.

12. Cumulatively, the consents signed by the parties resulted in my final order of February 1, 2018 which included: a. Joint custody. b. Primary residence to the mother. c. The father to have regular access including alternate weekends Friday after school to Monday morning and Wednesdays overnight. d. The father would be entitled to 18 extra days with the children starting in 2019, no more than 5 of the days in any year. This stemmed from the father’s submission – which I accepted – that over an extended period of time the mother had unreasonably denied the father access he was entitled to pursuant to earlier agreements or orders.

13. Soon after, on August 3, 2018 the Applicant father brought a contempt motion, alleging that the mother had breached the February 1, 2018 order by failing to consult him on certain issues (as required in the order); refusing to complete a passport application (also as required in the order); and by regularly denying the father access in the months following the February 1, 2018 consent order. a. Both parties filed extensive affidavit materials with respect to the competing motions during the summer of 2018. b. Their themes and complaints mirrored the allegations advanced during the seven days of trial (and in various motions preceding the trial). c. The mother alleged the father has long-standing and unaddressed mental health or emotional challenges or problems. These were the same complaints she repeatedly made before consenting to the February 1, 2018 joint custody/generous time-sharing order. d. In contrast, the father denied that he has (or had) any emotional or mental problem which would in any way be relevant to his parenting capacity or his relationship with the children.

14. As I subsequently noted in an August 17, 2018 endorsement, I heard no evidence during the seven-day trial which would have raised any fundamental issue as to whether the Applicant father should have access or unsupervised timesharing with the children. a. There was no doubt that he has some complex personality issues. b. But there was no evidence during the trial which would have justified any restriction with respect to his parenting time or involvement with respect to either child. c. The mother consenting to joint custody; generous unrestricted access; and make-up time was certainly inconsistent with any serious concern about the Applicant on her part, as of February 1, 2018. d. As stated, the only inappropriate parental behaviour which became evident during the trial was the Respondent mother’s repeated, unjustified denials of access to the father.

15. During that summer of the 2018 motion, the mother acknowledged that she had denied access on a number of occasions, but she explained that she felt she was being responsive to the emotional needs and comfort level of the children. She denied access because she said they didn’t want to go.

16. Not surprisingly, the family had already had some history with the Children’s Aid Society of Hamilton (CAS). Last summer I received a letter from CAS dated May 15, 2018 which included the following: a. Allegations against the mother’s partner (in relation to making some marijuana edibles) were not verified. b. Allegations against the father relating to drug distribution and his mental health were not verified. c. But concerns about the children being at risk of emotional harm were verified. d. The father denied being suicidal and his doctor was consulted and indicated she had no concerns that his mental health impacts on his caregiving ability. e. The children have been interviewed multiple times by CAS workers for multiple occasions, and “each time the children are interviewed regarding the allegations of their parents, it puts them in a stressful situation that can increase the risk of emotional harm.” f. The family doctor and their counsellor report that the children are stressed and it appears to be about the custody and access arrangements. g. The children have expressed not enjoying access visits with the father. The principal reported the children have verbalized not wanting to go to their father’s after school. h. “The children appear to be stressed and anxious about access visits and may be at risk of emotional harm if this is not addressed.” i. The Society does not have any evidence to suggest that the access visits with their father are unsafe. But the children verbalized some aspects of the visits which cause them stress. j. The Society concluded that since the children’s emotional well-being is being address through counselling, there is no need for further Society involvement at this time.

17. Interestingly, each parent referred to the Society letter as being supportive of their position.

18. In my August 17, 2018 endorsement I noted:

    15. But to perhaps give these very litigious parties some guidance, I can also tell them without hesitation: I don’t think either one of them has any insight into their own responsibility for the problems their children are experiencing. The father appears to be saying or doing things during access which cause the children some unhappiness. And the mother appears to be transparently inclined to jump at any opportunity to make a complaint about the father; suspend his access; or otherwise fail to facilitate and encourage the father-child relationship.
    16. So if the parents are interested in what sort of impression they’re making: Neither one of them is very impressive. Neither one of them is showing insight. They both seem anxious to fight here in court.
    17. Fortunately, after I stood the parties down asking them to consider more therapeutic options, they returned and agreed to retain Michelle Hayes for reconciliation counselling. Ms. Hayes is well regarded in this area and this would be an excellent choice.

19. So – for a brief moment – it appeared both parties acknowledged there were things they could be doing better, and they agreed to retain a well-respected therapist to assist in reconciliation counselling.

20. On the basis of the mother’s concerns, and on the basis that counselling would soon be set up, on August 17, 2018 I ordered that the father’s time with the children would resume but in a slightly decreased manner.

21. When the matter returned September 13, 2018 for a progress report, I was advised that the counselling with Michelle Hayes was scheduled to commence in October 2018. The father complained that he had been denied some of the access ordered on September 13, 2018. The parties entered into temporary minutes for a further expansion of the father’s access (but not yet up to the level he was to have pursuant to the February 1, 2018 order). Make-up visits again had to be ordered because the mother had once again denied access.

22. Sadly, when the matter returned before me for a progress report in November 2018, I was advised that the counselling with Ms. Hayes had not even commenced – and it was clear that this was mainly because the Respondent mother had been uncooperative in scheduling counselling. Even more sadly, apart from failing to cooperate with respect to setting up the counselling, the mother indicated she would be bringing a further motion to reduce or terminate the father’s access. At that point it became evident that the mother was simply trying to stretch out the temporary-temporary “reduced access” order, under the guise that we were waiting for counselling to get set up – when really she was not doing what she needed to do to set up counselling.

23. After further discussion, on November 30, 2018 the parties presented final minutes of settlement which I incorporated into a consent order. It included the following terms: a. Once again, the Applicant’s time-sharing pursuant to the February 1, 2018 order was fully reinstated, effective immediately. b. The father was granted make-up time for having been denied access, by being allowed to take the children on a family vacation to Costa Rica from February 17 to 24, 2019, and by the father having every March break until 2022. c. The Respondent mother was to ensure that the children have valid passports, to be renewed no later than January 2, 2019, and to be provided to the Applicant no later than February 10, 2019 to facilitate the Costa Rica vacation. d. The Respondent was ordered to pay costs fixed in the sum of $4,000.00

24. So once again, after voicing all sorts of allegations which were not corroborated, the mother consented to a continuation of Joint Custody, generous access, and make-up time for past denied visits.

25. One would have thought that was enough custody litigation for 2018 to last this family a while.

26. But on January 10, 2019 the father was required to bring a motion to secure the children’s passports because the mother had not yet obtained them. And he needed permission to slightly amend his Costa Rica travel dates so that instead of travelling February 17 to 24 he would be travelling February 12 to 19. The change was as a result of better travel arrangements. But when the Applicant asked the Respondent to consent to the very slightly different dates, she refused to respond.

27. I heard that motion on January 18, 2019. The parties again signed minutes of settlement, granting the Applicant all the relief he sought. This was an entirely needless motion, caused by the mother’s needlessly uncooperative attitude. In ordering $1,500.00 costs against the Respondent, my endorsement included the following:

    3. The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out that modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).
    4. In this case the 3rd objective takes on primacy: discouraging and sanctioning inappropriate behaviour by litigants.
    5. When I made my February 1, 2018 order, it included findings that the mother had acted unreasonably in denying the father time with the children.
    6. When I made my November 30, 2018 order it included costs against the Respondent in the sum of $4,000.00 because – once again – I determined that the Respondent mother was acting in an unreasonable manner, with the result that not only the Applicant was being prejudiced, but also the children were being prejudiced.
    7. The Respondent’s counsel has attempted to dissect all of the communications back and forth leading up to this motion. I don’t think that’s a fair approach. The reality is that the spirit and requirements of the existing order(s) are clear. Beyond that, I made it clear in my previous comments to the parties that this court clearly recognizes what has been going on here in terms of alienating and frustrating behaviour by the mother, and this conduct simply won’t be tolerated.
    8. Costs should actually be the least of the mother’s concerns. If she keeps up this needlessly resistant, contemptuous and provocative behaviour, she will be creating huge concerns about whether she can be entrusted to assume any level of time or responsibility with respect to these children. I’m warning her again: Stop playing games, or you may demolish your credibility as a parent.
    9. The Respondent mother shall pay to the Applicant father costs of this motion fixed in the sum of $1,500.00 inclusive of HST and disbursements, payable forthwith.

28. As stated, I made that endorsement on January 18, 2019 while the parties were present, each represented by counsel. The mother had signed minutes confirming that she would do everything necessary to ensure that the father could take the children on the long-since planned Costa Rica vacation, on the slightly amended dates he had proposed.

29. While they were before me on January 18, 2019, neither party mentioned that in the preceding weeks there had been more problems, which would form part of the factual basis for today’s emergency motions.

30. Briefly, the current/most recent problems may be summarized as follows:

31. On January 4, 2019 the children were with the Applicant father for a scheduled weekend visit. a. The younger child asked to be able to call his mother before going to bed. The father agreed. The child called but only got voicemail. The child then went to sleep. b. The mother then sent the father a series of accusatory text messages. c. At 10:30 p.m. the police arrived at the father’s residence to check on the well-being of the children. The mother had called them. The police looked in on the children and satisfied themselves that there were no safety issues. d. The father was mystified by the unexpected and disruptive attendance by police at his home. e. The mother admits she called the police. She gave no explanation in her materials as to why she felt it was necessary to call the police and attend unannounced at the father’s home. f. I received no evidence to suggest that it was necessary or appropriate for the police to be called. This was a needless disruption in the lives of the Applicant and the children.

32. But that was only the first of about five occasions when police came to be involved in the children’s lives during these past few weeks.

33. On January 9, 2019 the children were at the Applicant’s residence for a mid-week overnight visit. a. Initially, the Applicant’s unmarried partner was watching the children, as she often does. b. When the Applicant returned home by 7:20 p.m. the children could not be found. Their homework was scattered in a room and they had been having fun playing with a nerf gun. But they couldn’t be found. The Applicant’s partner advised him that she has only left the room they were in five minutes earlier. She was shocked they were both gone. c. The Applicant immediately called 911. The police responded and commenced a search of downtown Hamilton. d. The Applicant called the Respondent who eventually attended at the home. e. The Applicant, the Respondent, and the police all scoured downtown Hamilton, after dark, searching for the children. f. At 8:40 p.m. the police contacted the Applicant and advised him that the children had called a friend of the mother’s. The friend had come and picked up the children and took them to her residence. The Respondent mother then attended at the friend’s residence, and took the children home (even though the children were supposed to be with the Applicant for the evening).

34. That sounds like a scary evening. Kids disappearing after dark in the downtown of a city. But as with everything else on this file, it turns out there was more to the story. a. The Applicant later discovered that the Respondent mother had secretly given the children their own cell phone which they carried during visits with the father. She never told the Applicant about this. b. When the children “disappeared” from the Applicant’s house that evening, they were carrying their cell phone. c. All of that time when the Applicant, the Respondent, and numerous police officers were scouring downtown Hamilton looking for two missing children – all of that time the Respondent mother knew the children were carrying a cell phone. She was the only one who knew the children could be reached – and located – at any time, simply by calling their cell phone. But she allowed the search – and anxiety – to go on needlessly. d. Even after the Applicant learned of the cell phone, the Respondent refused to provide him with the number. e. In her materials the mother never explained why she secretly gave the children a cell phone. f. She never explained why she allowed everyone to go searching for the children, and she portrayed herself as also participating in the desperate search – even though she could have just called the children on their cell phone. g. She provided no evidence or explanation as to why the children “ran away” from the Applicant’s residence. h. She provided no evidence from the friend who received a call from the children, explaining the friend’s involvement, whether there had been any earlier discussion about this sort of thing happening, or describing the children’s statements or emotional well-being. i. She provided no explanation as to why she didn’t simply return the children to the Applicant’s residence – where they were supposed to be pursuant to a court order – after they were located. j. The father says there was no basis for the children spontaneously leaving his residence that night. The inference is that all of this was orchestrated by the Respondent. k. Unfortunately, the mother’s conduct that evening is inconsistent with good parental insight.

35. But even that wasn’t the end of these children’s exposure to police involvement.

36. On at least three subsequent occasions, when the Applicant went to the children’s school to pick them up (pursuant to the existing order) school officials became conspicuously involved and called the police. The police came and spoke to the children. The police advised that since the existing order did not include a “police enforcement” clause, they would not enforce the father’s access. The school released the children to the mother. a. Again, there is no evidence to suggest that any of this was necessary. b. Schools don’t ordinarily call the police as soon as a parent attends to pick up their child. c. There was very general hearsay evidence that the children had expressed mixed feelings about access. d. But there’s nothing here that would have justified any defiance or deviation with respect to a time-sharing regime which has now twice been engrossed in a final order in 2018. e. The mother denies any responsibility for the police having been called to the school. But she provided no explanation as to what information she may have given school officials to place them on alert that as soon as the father showed up, the police should be called. f. These children were placed in a separate room by school officials. They were questioned by police repeatedly. g. The father repeatedly requested that school officials contact CAS as they had been involved, and had previously confirmed that there was no safety issue in relation to the children being with the father. h. The mother appears to have done nothing to convey to the children or the school that there is an access order in place, and that everyone should simply follow it. i. To his credit, when faced with resistance by school officials and no support by police officers, the Applicant backed off and allowed the children to go home to the Respondent. j. But I cannot help but remember the heartfelt warning in the CAS letter of May 25, 2018: “Each time the children are interviewed regarding the allegations of their parents, it puts them in a stressful situation that can increase the risk of emotional harm.”

37. So, today we have motions and cross-motions. a. The Applicant seeks to find the Respondent in contempt for her continuing denial of access. b. The Respondent wants the Applicant found in contempt for failing to pay some section 7 expenses. (That motion is an obvious non-starter for many reasons.) c. The Applicant simply wants his time with the children, and he wants to be sure that the children will be made available for the Costa Rica trip scheduled for just days from now. d. The Respondent says there are so many issues and uncertainties that we should suspend or greatly reduce the father’s time with the children, until we get more information.

38. What “more information” is the Respondent looking for? She wants the children to engage in counseling. Which is a great idea. Except the Applicant father has been pressing for Michelle Hayes to become involved with reconciliation counselling for many months. Both parties have even provided their respective retainers. But the mother has still – up to the date of the motion – refused to participate in actually scheduling any counselling with Michelle Hayes.

39. Instead, the Respondent proposes that we wait for another counsellor Sarah Brodie to speak to the children and report back. But this proposal is entirely unsatisfactory and transparently self-serving. a. Sarah Brodie was identified as a counsellor for the children back in the February 1, 2018 order. b. But when the mother came up with new allegations in the summer of 2018, both parties acknowledged that they needed a more specifically qualified counsellor to deal with both parents and both children. That’s why they agreed Michelle Hayes would become involved, quite apart from any general counselling Sarah Brodie may have provided. c. Michelle Hayes was agreed upon in August 2018. d. Since August 2018 the Applicant has been anxious to proceed with counselling with Michelle Hayes. e. But the Respondent has consistently paid lip-service to the idea of attending with Michelle Hayes for counselling. f. The mother didn’t propose any counselling as of January 4, 2019 when she called the police to do a “wellness check” of the children at 10:30 p.m. while they were at the Applicant’s residence. g. She didn’t tell me anything about a need for counselling (or doubt about the Costa Rica trip) when she attended before me on January 18, 2019. h. But now she wants access rescinded, and a vacation cancelled, while her preferred counsellor weighs in.

40. I absolutely agree that this family needs professional help. And Michelle Hayes is an excellent choice. But it is disingenuous for the mother to drag her feet with respect to arranging Ms. Hayes, and then suddenly announce that problems are so severe that an immediate suspension of the father’s access is required.

41. I do not for one moment presume that either of these parents is perfect. But these family issues have been litigated over and over again. There have been repeated findings that the Applicant is being reasonable; the Respondent is being unreasonable; the Applicant is making good faith efforts to problem solve; the Respondent is needlessly drawing the children into the litigation and exposing them to traumatizing situations (like having the police repeatedly involved, searching for them or asking who they want to be with).

42. Clearly, I don’t have all of the information. As stated, Judges usually don’t have the benefit of all of the information at a bitterly contested motion.

43. But I have enough information – based on my historical involvement; on previous orders and endorsements; and based on the materials filed today (including really troubling deficiencies in the mother’s materials) to cause me to have serious concern that the Respondent continues to embark upon a campaign to undermine the children’s relationship with the Applicant father.

44. Quite simply, the mother has crossed the line. She has shown alarming indifference and lack of insight with respect to all that she has put the children through. She seems absolutely – tearfully – convinced that she is simply “protecting” the children.

45. At this point, her “protection” is starting to look frighteningly like the worst form of parental alienation. She is abusing her time with the children by exposing them to unnecessary conflict and situations, and conveying inappropriate and unsupportive messaging.

46. And given all of the upheaval in these children’s lives, I cannot allow this free-for-all to continue.

47. As stated at the outset, courts are loathe to tamper with the status quo, particularly on a temporary basis, unless there is some urgent situation that needs to be addressed immediately.

48. This is such an urgent situation. I have no doubt that the Respondent loves her children. But she doesn’t realize that she is hurting them. And I can’t allow that to continue.

49. Temporary temporary without prejudice order: a. The children Sophia and Benjamin shall reside exclusively with the Applicant father. b. The Applicant father shall be permitted to travel with the children to Costa Rica. (I am not going to specify dates because the Respondent has been delayed in obtaining the passports. She is still required to provide them. If the passports are delayed, the trip may have to be rescheduled by a short amount of time.) c. The Respondent may only have access to the children in the discretion of the Applicant. d. The mother is not to attend at the children’s school at any time when she may reasonably anticipate that the children will be present. She is not to provide the school with any instruction which would interfere with the Applicant’s authority to have the children in his care. e. Neither party shall discuss this litigation with the children or make any negative statement about the other parent (or their respective family members) in the presence of the children. f. The motion is adjourned to February 22, 2019 10:00 a.m. before me. g. The parties are to immediately schedule counselling with Michelle Hayes. On the return date the parties are to provide an update as to that counselling.

50. I am not making a police enforcement order today. These children have had far too much exposure to police. However, if the mother refuses to respect this order in every respect, the matter is to be brought back to my attention immediately. In such an event I will consider all necessary options, including a police enforcement clause – and potentially including incarceration.

51. The mother needs to clearly understand: the court system recognizes what she is doing, and we will not tolerate it.

52. Costs reserved.

Pazaratz J. Date: February 8, 2019