Court File and Parties

COURT FILE NO.: FS 13-3352 DATE: 2019-02-21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ERIN MARIE BREADMORE Applicant – and – MICHAEL PAUL BREADMORE Respondent

Counsel: Edward Rae, Counsel for the Applicant Shawn Hamilton, Counsel for the Respondent

HEARD: February 13, 2019

VARPIO J.

Reasons on Custody/Access Motion

Overview

[1] This file is dated as the parents entered into a custody and access Order before me in 2014. Pursuant to a Final Order, the applicant mother acquired custody of the parties’ son, who is now 11 years old (the “Boy”). Between 2014 and January 2019, the Boy lived with each parent on a week about basis without need of court intervention.

[2] On January 24, 2019, the Mother texted the respondent father (the “Father”) seemingly out of the blue to tell him that the Boy was no longer going to go live with the Father on a week about basis. The Father brought a motion seeking, inter alia, either compliance with the week about living arrangement or custody of the Boy. The Mother brought a motion seeking, inter alia, a suspension of week about access. For the reasons that follow, I find that the “week about” living arrangement ought to be temporarily suspended given the emotional turmoil that said arrangement is causing the Boy. The Father should be entitled to access every Saturday between the hours of 12:00 p.m. and 4:00 p.m., as supervised by someone agreed to by the parties.

Facts

Undisputed Facts

[3] This matter originally came before me on January 20, 2014 in what was, at that time, a relatively acrimonious piece of family litigation. I had heard three days of trial when, on January 23, 2014, the parties were able to bridge their differences and arrive at a consent Order that covered custody and access. The relevant provisions of that Order state that:

(1) The Applicant shall have custody and primary residence of [the Boy].

(2) The Respondent shall have input into all major decisions affecting the health, education and welfare of [the Boy], and the right to obtain information relating to the health, education and welfare of the child, including the right to obtain such information directly from third parties (e.g. doctors, teachers, counsellors etc.).

(7) Commencing March 29, 2014, the access schedule shall be on a two-week schedule as follows:

(i) Week one – from Saturday at 9:00 a.m. until Wednesday morning drop-off at school, [the Boy] shall reside with the Respondent father. From Wednesday after school until the Monday morning drop-off at school, [the Boy] shall reside with the Applicant mother.

(ii) Week two – from Monday after school until Wednesday morning at school, [the Boy] shall reside with the Respondent father. From Wednesday after school until Saturday at 9:00 a.m., [the Boy] shall be with the Respondent mother.

(iii) The above access schedule shall then repeat.

[4] Property issues and other such disputes were reviewed by the Court as recently as 2017 but, by all accounts, the parties and the Boy were able to abide by the provisions of the custody and access Order. The Mother resided with her parents from the time of the Order until 2017. For his part, the Father is in a relationship with a new partner, Ms. B.S., who has children of her own from a previous relationship.

[5] It is accepted by the parties that the Father had no indication from the Mother that there were any issues prior to the Boy being withheld. On January 23, 2019 at 1:14 p.m. (exactly 5 years to the date of the Final Order), the Mother texted the Father indicating: “Mike, [the Boy] has made a decision that he does not want to go back to your house. He is here at home and will be for the time being”. The Father attempted to reach the Mother by phone, but to no avail. That evening, the Father contacted the North Bay police to do a safety check. The police confirmed that the Boy was safe. The police also confirmed that the Boy indicated to police that he wished to stay with his mother. The Mother alleges, and the Father denies, that the Boy indicated to police that he did not feel safe at his Father’s house.

[6] Accordingly, the Mother brought a motion seeking a variation in access, table support given said change, and the involvement of the Office of the Children’s Lawyer.

[7] For his part, the Father brought a motion seeking custody of the Boy as well as a police enforcement clause.

Disputed Evidence

The Interview Request

[8] The evidence in this motion took an unusual set of turns. First, the Mother asked me to interview the Boy so as to ascertain his preferences. After hearing from the Teacher and the Principal (whose evidence I will describe later), I declined to interview the Boy with reasons to follow.

[9] Section 64 of the Children’s Law Reform Act states:

Child entitled to be heard

64 (1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them. R.S.O. 1990, c. C.12, s. 64 (1).

Interview by court

(2) The court may interview the child to determine the views and preferences of the child. R.S.O. 1990, c. C.12, s. 64 (2).

Recording

(3) The interview shall be recorded. R.S.O. 1990, c. C.12, s. 64 (3).

Counsel

(4) The child is entitled to be advised by and to have his or her counsel, if any, present during the interview. R.S.O. 1990, c. C.12, s. 64 (4).

[10] I have the discretion to interview the Boy however, that discretion is not without certain limitations. In Stefureak v. Chambers, 2004 ONSC 34521, [2004] O.J. No. 4253, Quinn J.W. reviewed the relevant case law and expressed a view with which I agree. [1] At paragraphs 61, 62 and 65 to 70, the learned justice stated:

Section 64, therefore, permits the child to play a direct role in the decision of the court. However, section 64 neither places a duty on the judge to interview the child, nor identifies specific criteria that must be met before such an interview can take place. Rather, this is a matter for the discretion of the judge. The only requirement is that the interview be recorded, and this would entail the presence of a court reporter. The parents must not be present; however, their counsel may be present at the discretion of the judge.

The discretion to conduct a chambers interview is broad. Case law and academics suggest that a judge should only interview a child in chambers where other methods of determining the child's preferences (such as assessments) are unavailable. This suggestion rests on the assumption that judges are not trained to interview children and that the formality of meeting a judge in chambers creates an intimidating environment in which it will be difficult for the child to speak freely. Ultimately, however, the discretion of whether to interview rests with the judge.

In addition, the interview should not be seen as an opportunity to obtain vital information of which the other parties are unaware or cannot challenge.

When asked to hold an interview in Demeter v. Demeter (1996), 1996 ONSC 8111, 133 D.L.R. (4th) 746, 21 R.F.L. (4th) 54, [1996] O.J. No. 1470, 1996 CarswellOnt 1301 (Ont. Gen. Div.), Justice Christopher M. Speyer listened to all the evidence presented at trial to see whether a current and accurate account of the views and preferences of the children emerged, before deciding whether to meet with the children in private.

As another alternative, some judges have held that meeting with the child is not necessarily a matter of attempting to determine the wishes of the child, but may better serve simply to come to a fuller understanding of who the child is for the purposes of determining best interests.

Finally, except in the most exceptional circumstances, it is wrong to obtain the confidence of a child by promising that the judge will not disclose the information received. The judge has the discretion to decide whether anything should be disclosed about the results of his or her interview, and to decide what should be said. When making this determination, the court must consider the ability of counsel to make argument at trial or on appeal, fairness to the parties, and potential embarrassment to the children.

It is doubtful that very many judges, because of a lack of training in interviewing children, would agree to do so. Although, arguably, a properly conducted interview by the trial judge could be the quickest way to learn of the views and preferences of a child, it might not be the most efficient approach, as it would be desirable for the parties to have this information before embarking on an expensive trial. However, once the trial has commenced, an interview by the judge would avoid a lengthy adjournment for an assessment under section 30 of the Children's Law Reform Act or an investigation pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C-43 (as amended).

A chambers interview is not feasible at bar, as I have no training or known skill in interviewing children.

[11] As will be seen below, I have a clear understanding of the Boy’s wishes. Specifically, the Boy does not wish to go to his father’s residence because (as he appears to have indicated in a letter) his father makes him feel badly. Thus, I do not need to ascertain the Boy’s wishes. Equally, I have no specialized training in interviewing children and, as such, I am unwilling to venture into this activity given that I already know the Boy’s preferences.

The Father’s Evidence

[12] I will describe the evidence relevant to my analysis of the issues and, where I do not describe certain evidence, it is because it is either irrelevant to my decision or it is unreliable in that it is unable to be tested save by cross-examination. For example, an issue arose in the affidavits regarding whether or not disparaging words were said as between Ms. B.S. and the Mother regarding a parent-child hockey game. Equally, there was evidence regarding whether or not the Boy wished to go to the Father’s family gathering in the summer because he had to look after his younger brothers and sisters (Ms. B.S.’s children). As for the disparaging words at the hockey game, it neither goes to the issue before me (the Boy’s best interests) nor can its reliability be tested absent cross-examination. Regarding the family gathering, the fact that the Boy did not wish to attend the event is of no moment in so far as many/most children inevitably attend family functions that they would rather miss. [2]

[13] The Father deposed that all has been good as between himself and the Boy, as well as between himself and the Mother. The Father attached as an Exhibit of approximately 175 pages of text messages dating between July 22, 2017 and January 2019 which display absolutely no animosity or suggestion of any problems as between the Father and the Boy, or the Father and the Mother. In fact, the texts suggest that the relationship was amicable throughout the entirety of the time covered by the texts. [3]

[14] In his evidence, the Father surmises that the Mother’s concern for the Boy’s well-being while in the care of the Father flows from the Mother’s new relationship with Mr. R.F. The Father suggests that Mr. R.F. assaulted the Father in the Boy’s presence by pushing him in the chest and calling him a derogatory term. This incident allegedly happened on September 29, 2018. The Father thus suggested in his affidavit that the withholding of access may be a corollary of a potentially abusive relationship as between Mr. R.F. and the Mother.

[15] The Father also indicated in his evidence that he attended the Boy’s school on the afternoon of January 25, 2019 to see the Boy. He saw the principal of the school who indicated to him that the Boy did not wish to speak with the Father. The Father deposed that, “I did not receive any insight from [the principal], I found him to be cursory in this approach towards [the Boy] and me, and he seemed annoyed that I was seeking his assistance.” Despite this fact, the Father deposed that he considered subpoenaing the principal to provide evidence.

[16] At the end of his first affidavit, the Father indicated that he did not bring a contempt motion because he hoped that there was a well-intentioned reason for withholding access. From this I infer that the Father was not aware of the reasons for said withholding until he received the Mother’s materials.

[17] The Father denied that there were any concerns with his parenting of the Boy and denied that he made the Boy feel in any way inadequate. He denied calling the boy names. He denied that Ms. B.S. would call him disparaging names or otherwise hurt his self-esteem.

[18] The Father also deposed that, on a date when the parties were in Court on this motion, he saw Mr. R.F. in a hallway of the courthouse and that Mr. R.F. came up to him and began accosting him in an aggressive fashion. A paralegal in the courthouse observed Mr. R.F.’s aggression and she deposed an affidavit in which she verified the Father’s version of events.

[19] Finally, as regards the family reunion described in paragraphs 12 of these reasons, the Father deposed that he and the Mother discussed the issue and that the Father tried to work out with the Boy why it was important that the Boy attend. The Mother did not deny the discussions or suggest that they were in any way acrimonious. This evidence appears to support the Father’s position.

The Principal and the Teacher

The Principal

[20] The Mother called the Boy’s principal and teacher. The principal testified that he has known the Boy for some time and that he has a good communicative relationship with him. The principal testified that the parents in this family appeared to be working at cross-purposes on occasion. For example, the Father wanted the Boy to get one piece of pizza for lunch while the Mother wanted the Boy to get two pieces.

[21] The principal testified that, pursuant to the Education Act, the Boy was of an age and stage whereby he could voice his opinion as to whether he wanted interaction with certain individuals, including his parents. Neither parent took issue with this position.

[22] The principal further testified that, on January 23rd of 2019, he came upon the Boy and the Mother. The boy was quite emotional and crying. The principal let the pair use a room for privacy and, when the principal inquired if everything was all right, the Boy indicated in the presence of his Mother that he did not wish to go to his father’s house.

[23] The principal testified that, the next day, the Boy was in the classroom when the Father came to see the Boy. The principal went and asked the Boy if he wanted to see the Father. The Boy said that he did not want to see the Father. Accordingly, the Father went and spoke with the Father and communicated the Boy’s wishes. Regarding the principal’s allegedly “cursory” attitude towards the Father, the principal simply stated that he did not believe that the exchange was problematic. He thought it was, in the circumstances, cordial.

[24] The principal also described his interaction with Mr. R.F. whereby the principal needed to issue verbal notice to Mr. R.F. under the Trespass to Property Act. The essence of the testimony is that Mr. R.F. came to the school in late January (possibly the day that the Father was informed of the Boy’s decision) and asked the principal during bus pick up if he could use the washroom. The principal allowed the request because he recognized Mr. R.F. but could not place him. A teacher approached the principal indicating that Mr. R.F. had parked his car in the bus area and was difficult about moving his car so as to allow bus access. The principal asked Mr. R.F. about the incident as Mr. R.F. left the bathroom but Mr. R.F. would not answer, identify himself or speak with the principal. Mr. R.F. left the school and, when school staff were able to place Mr. R.F., the principal advised the Mother that Mr. R.F. was no longer allowed on school property. The principal testified that a couple of days later, Mr. R.F. called him and provided a satisfactory explanation. The notice was lifted because the principal stated that Mr. R.F. was rational and reasonable.

[25] In cross-examination, the principal confirmed that he had not heard of any concerns regarding the Boy’s well-being while in the care of the Father, be it physical or emotional.

The Teacher

[26] The Boy’s teacher testified that she is teaching the Boy for a second consecutive year. She knows the Boy to be able and kind. However, in the fall of 2018, she noticed that the Boy had become considerably more sensitive. In October of that year, she sent an email to the parents asking if there were problems. Both parents came to visit the teacher. The Mother, however, responded via email indicating that there were problems with the Father’s access time and that she wished to keep any conversation in this regard confidential from the Father. The teacher understood and agreed. The teacher also understood as early as October 2018 that there might be a plan afoot regarding the access schedule, although she was not pressed in testimony any further about this point.

[27] The teacher also indicated that her “female intuition” told her that, when she met the Father in the October meeting, she felt that he could be controlling. In cross-examination, she indicated that given the Father’s blended family and the number of children in the house, this controlling impulse could be understandable.

[28] On January 23, 2019, the Boy was taking math from the teacher when he gave a wrong answer in class. He immediately began to cry. Later that day, the teacher testified that she found out that the Boy was going to the Father’s house. The teacher was given this information from the Mother. The Mother discussed parenting issues with the teacher in the Boy’s presence.

[29] The teacher was taken to a portion of the Mother’s affidavit evidence wherein the Mother stated:

She [the teacher] also said that having met [the Boy’s] father that she would not put it past him to try and take [the Boy] by bypassing the office and trying to find him at recess or lunch. She said if this were to happen, he was to say he did not want to speak to his father (if that was what he wanted) and that he was not to leave with him under any circumstance given the current situation. He was to find the teacher, and [the Boy] and his father would be brought in to speak to the Principal. If [the Boy’s] father tried to forcefully remove him from the school he was to kick, scream, run and do whatever was necessary to get away. She said she understood how hard it would be to tell his father he did not want to speak with him, or see hi, and that she thought he was very brave for finally being able to stand up for himself and say what it is that he needs.

[30] The teacher indicated that this recitation was an unfair description of the Father in that she did not think that the Father would abduct the child forcibly. Instead, she was concerned that the Father may wish to speak with the Boy who could be outside, or at lunch, thereby requiring the Father to do so by going around the main office. She did confirm that she explained said safety plan to the Boy.

[31] The teacher also agreed that the Boy did not describe any negative behavior by the Father, although the Mother did describe some concerns in that regard.

Finding of Credibility

[32] I found both the principal and the teacher to be good witnesses. They both attempted to be helpful and were clearly focused on being honest and accurate. They both impressed me as genuinely trying to help the Boy get through a troubling time. Accordingly, I accept both of their evidence in its entirety even where it conflicts with the affidavit evidence of others.

The Mother’s Evidence

[33] The Mother deposed that there had been troubles as between the Father and the Boy for some time. The Mother described a number of specific incidents where the Boy would not want to go to the Father’s residence. The Mother and her mother (the “Grandmother”) both deposed that the Boy would become quiet and withdrawn when going to or returning from the Father’s house. They both deposed that the Boy would become quite emotional and would not want to leave for the Father’s residence. The Mother deposed that the Boy would tell her that the Father would call the Boy names and would make the Boy feel terribly. The Boy would become very emotional and upset at the prospect of going to the Father’s in so far as such visits would damage his self-esteem. The Mother and Grandmother both indicated that they did not confront the Father initially as they feared that the Father would seek reprisal as against the Boy.

[34] The Mother denied that Mr. R.F. was abusive towards her or towards the Boy. She also denied that she was engaged in a campaign of parental alienation.

[35] The Mother also had affidavit evidence from a friend who described the Mother as being an excellent parent. This friend also deposed that she witnessed first-hand the angst suffered by the Boy as he described going to the Father’s house.

[36] Finally, the Mother attached notes and a letter to the Father, all written by the Boy. They state:

(Exhibit A)

Dad and B.S. call me name’s “in a joking way” doesn’t feel like it

• Mini E. – loser - because “Mom blames everything on everyone”
• Mini E. – Wimp – “because I have a attitude like hers”
• Dip Poop – Lazy – Poop head – liar I’m afraied of – they are going to yell at me
• going to take me from school or from my hard When I’m there – I get in trouble for B. and A. fiting
• get yelled at for nothing
• talking bad about Mom and R.F. to everyone Others
• saying my teeth are as green as a frog
• they question me till I agree with them even if its not the truth
• Call’s B. mini M.
• they will try to convince D. that I don’t love her
• That B. and A. will be mad at me because I left
• I can’t sleep on Sundays
• we had a code word
• He thretined to knok my eyes out of my head
• When M. was sick
• scared that Dad will rachet strap my door closed
• I don’t want to go to my dads or talk to him
• I want to stay at my moms I’m tired of being ask if I want to go to my dads I want to see my little sister D. January 27, 2019

(Exhibit B)

To: Dad Dad I need sometime away from yelling, name calling insulting me me getting in trouble for B. and A. fiting and being treated diferet then B. and A. If you please give me mayby 3 weeks to have a break. And to think about what I want to do next. I would also like to see D. mayby at Uncle J. and Aunt C. Love you dad, Love [the Boy]

Analysis

[37] Although it was not argued by either party, it is clear from each party’s implicit submissions that I have authority under the Divorce Act to alter an existing Final Order for custody and access where a material change of circumstance exists. It is also clear that such a material change exists in this case in so far as the Boy clearly is having considerable difficulty in attending his Father’s residence.

[38] The Father states that the Mother has simply not done enough to help the situation. He points to Gordon J.’s decision in Jackscha v. Funnell, 2012 ONSC 4234, [2012] O.J. No. 3955 where the learned justice indicated at paras. 12, 17 and 18:

[12] Compliance with custody and access orders may become complicated by the conduct of a third party, the child. Indeed, it is not uncommon for a child to refuse to comply with the terms of such an order. However, in my view, it is implicit in such orders that parents are capable of ensuring the child’s compliance with the order and will take reasonable steps to ensure that compliance.

[17] By her own admission Ms. Jackscha’s efforts to have [the child] go to his father on Christmas Day were insignificant. Although she testified that she encouraged him to go, I received no evidence of what that “encouragement” included. Fostering a child’s positive relationship with the other parent is one of the most significant parenting duties a separated spouse undertakes. Faced with a child who is unwilling to go with the other parent, the parent in care of the child must do more than simply acquiesce. At a minimum one might expect the following:

• A discussion with the child to determine why he does not want to go
• Communication with the other parent to advise of the difficulty and discuss how it might be resolved
• Offering the child an incentive to go, or some form of discipline should he continue to refuse

[18] Ms. Jackscha did none of these things. Her bare assertion that she encouraged [the child] to go to his father’s raises no reasonable doubt in my mind. I am satisfied beyond a reasonable doubt that she did not take reasonable steps to have [the child] comply with the order. The result is that she was in contempt of the order on December 25, 2011.

[39] The Father submitted that the Mother is engaging in a campaign of parental alienation. The Father deposed that he grounds his belief on the following evidence:

1. Despite my Order that the Father be consulted regarding same, the Father has not been made aware of any work done with health care providers to help the Boy as regards his relationship with the Father other than a failed attempt at counselling;
2. The Mother is the only person who gave any specifics to the teacher and the principal regarding the Father’s putatively lackluster parental performance;
3. There was an ostensibly positive relationship as between the Father and the Mother until January 2019. This is confirmed by the considerable text messages outlining the positive relationship;
4. There have been multiple “adult” discussions in front of the Boy wherein the Mother discussed the alleged problems involving the Father’s parenting; and
5. Mr. R.F.’s confirmed behavior suggests that he may be the driving force behind the Mother’s concerns.

[40] I am mindful that the Courts have taken a strong view as against parental alienation. Whalen J., in Pettenuzzo-Deschene v. Deschene, 2007 ONSC 31787, [2007] O.J. No. 3062 stated at paras. 33, 46 and 55:

The governing statutory law is clear and well-known on questions of custody and access. I will not reproduce or discuss the applicable provisions at length, especially given the time constraints of this matter, which I consider require urgent intervention. The court draws its authority in this case from The Children's Law Reform Act R.S.O. 1990, Chapter c. 12 as amended (the C.L.R.A.). Under Section 29, the court may only vary an order for custody or access where there has been a material change in circumstances that affects or is likely to affect the best interests of the child. Section 24(1) requires that custody and access be determined in the best interests of the child and Section 24(2) lists a number of matters the court must consider in determining the child's needs and circumstances pertinent to a determination of best interests. I will not read the section here, but I assure the parties that I have reviewed it in reaching a decision. I am also aware that under Section 24(3), past conduct is to be considered only in a context of violence and abuse as dealt with in Section 24(4) or where the court is satisfied such past conduct is otherwise relevant to the person's ability to act as a parent. In assessing a person's ability to act as a parent, Section 24(4) requires the court to consider whether the person has at any time committed violence or abuse against his or her spouse, a parent of a child in issue, a member of his or her household, or a child.

The mother's counsel urged me to permit further assessment and treatment to better define the problem and devise an effective treatment. He urged that a finding on a matter as complex as parental alienation should await trial, where complete evidence could be explored and tested in respect of the people involved in the case, especially counselors, Dr. Hepburn and any other professionals that may become involved. While I acknowledge the fuller airing and testing that is available through the trial process, I conclude that I would be remiss and not acting in the best interests of the children in the interim if I was convinced they were suffering emotional harm that might worsen or remain unresolved for a lengthy period of time. I am convinced that parental alienation is afoot in this case and that steps must be taken before it is too late, as happened in D.S. v. S.T.S. (supra).

With respect to the children's views and preferences, where they can be ascertained, the difficulty in an alienation case is determining who (as Perkins J. questioned) is really speaking through the child's words, and whose views the child is really presenting. If I accept that there has been parental alienation in this case, as I do, then the child's preferences are not her own, but are those of her mother or other maternal family as she has been convinced. Accepting the wife's depiction of the child expressing her wish not to see her father after long soul-searching, this means the child was 5 years old when she finally expressed herself, after pondering it as a 4 year old. I am very skeptical. [Emphasis added.]

[41] I understand the Father’s position and it may yet be that he is correct. Nonetheless, without the benefit of a trial with cross-examination, it will be very difficult to determine whether or not there is any merit to the Father’s position. It must be noted that in Pettenuzzo, Whalen J. had the benefit of a report from a clinical psychologist who had reviewed all the materials in the case and had come to an opinion that parental alienation was ongoing (paras 19 and 25). I do not have the benefit of any such report in this case.

[42] I also do not have any direct evidence to suggest that the Mother has, in fact, been engaged in a pattern of parental alienation. Nowhere is there evidence to suggest that the Mother has told the Boy that the Father is incapable in any way. I acknowledge that the points raised by the Father in paragraph 39 are curious, but they do not amount to evidence of parental alienation.

[43] Equally, I have some concerns about Mr. R.F.’s temperament. The Father’s allegation as against Mr. R.F. is, tragically, nothing unusual in a family law file. Courts are bombarded with allegations made by angry parents regarding the conduct of new spouses and partners, and vice versa. Of some concern, however, is the fact that two independent and credible witnesses (the principal and the paralegal) gave evidence regarding Mr. R.F.’s aggressive conduct in instances where the Boy’s interests were at play. This evidence corroborates the Father’s affidavit evidence, although I make no actual finding in that regard. Nonetheless, such evidence falls short of proving that Mr. R.F. is aggressive towards the Mother or the Boy.

[44] Therefore, the Father presented evidence that raises some concerns, but this evidence does not prove a campaign of alienation.

[45] In contrast, I have clear preferences of the child before me. The Boy’s handwritten evidence describes his preferences. These preferences are not, of course, determinative of the matter. Children will prefer to engage in any variety of activities for any variety of reasons. What is important, however, is the reason for their preference and the impact that said reasons have upon their best interests. In this case, it is clear that the Boy does not wish to go to his Father’s to live in the continued access arrangement. The Boy appears to state in his notes that the Father and his new partner engage in conduct that causes him to question his self-esteem by calling him names and by making disparaging remarks. Such an arrangement, if true, is certainly not in his best interests.

[46] The Boy’s views as expressed in his notes and letter are corroborated by the fact that the teacher and the principal felt it necessary to establish a safety plan for the Boy. The Boy’s views as expressed in the notes are also corroborated by the Mother’s friend as well as the Grandmother who both deposed that the Boy felt considerable anxiety and angst in returning to – and coming from – the Father’s home.

[47] It is therefore clear to me that maintaining the current custody and access arrangement does not meet the child’s best interests in so far as it clearly causes significant anxiety and emotional trauma. I am therefore varying, on a temporary basis, the current Final Order in that Paragraph 9 shall now read:

Effective January 23, 2019, [the Boy’s given name] shall reside with his mother full-time. The father shall have weekly access every Saturday from noon until 4:00 p.m., commencing February 23, 2019. Access will be supervised by [insert name as agreed upon by the parents]. Pick-up and drop-off shall be performed by the person supervising the access. Neither parent will speak ill of the other, their respective significant others or [the Boy] while in [the Boy’s] presence.

[48] Paragraph 10 shall be deleted.

[49] It is also clear to me that this is now an especially high-conflict case involving very serious allegations of parental alienation and potential emotional abuse, which may or may not be true. Accordingly, it would seem imperative that the OCL consider becoming involved in this matter.

[50] I will not order support at this time as this is a temporary Order and Mr. Breadmore will need to provide Ms. Breadmore with his relevant financial information forthwith (Notices of Assessment, etc.). I therefore adjourn the support motion to the trial coordinator who will procure a new date after March 15, 2019.

Costs

[51] While the Mother was largely successful in this motion, it is possible that she was successful because of an alleged campaign of parental alienation. Without further evidence in this regard, it is impossible to know whether or not this is the case. Accordingly, I reserve the costs of this custody and access motion to the justice that ultimately decides this case (either through trial, settlement or otherwise).

Varpio J. Released: February 21, 2019

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ERIN MARIE BREADMORE - and – MICHAEL PAUL BREADMORE REASONS ON custody/access MOTION Varpio J. Released: February 21, 2019

[1] I note that there appears to be no binding appellate authority regarding the advisability of interviewing children and the appropriate considerations therefore.

[2] I will, however, deal with how the parents handled the issue later in these reasons as it is relevant to my consideration.

[3] There is a missing portion of time in the texts attributed to the Father’s changing of his phone. The Mother takes no issue with this and does not suggest that the missing text messages describe anything less than pleasant.