COURT FILE NO.: FC-11-1816-2 DATE: 2019/03/22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

G.T.G.D. Applicant – and – M.D. (NEE T.) Respondent

Counsel: Susan Galarneau, for the Applicant Steve Duplain, for the Respondent Cheryl Hess, Office of the Children’s Lawyer

HEARD: May 31 and June 4, 2018

REASONS FOR DECISION ON A MOTION TO CHANGE

Summers J.

Nature of the Proceedings

[1] This is a motion to change the final order of Justice G. Toscano Roccamo dated July 8, 2016 made after a four day trial of a motion to change a previous order. The applicant father, Mr. D., seeks to vary access and limit the respondent mother, Ms. T.-D., to supervised access for 2 hours each week at a supervised access facility. He claims there has been a material change in circumstances. Mr. D. submits that the ongoing conflict has increased the risk of harm to the children when in their mother’s care. He further argues that Ms. T.-D. has committed many acts of contempt since that last order was made that allow him to move for a variation under the provision in Justice Toscano Roccamo’s order that states, “The Mother shall have unsupervised access until and unless a further act of contempt is committed by her in which case the Father shall have leave to move for supervised access to the Mother, on such terms as are just.”

[2] Mr. D. also asks to vary the current parenting provisions to remove the right of first refusal that each party has to care for their children when the other is unavailable, to eliminate all holiday access unless it can be facilitated by a supervised access facility, and to obtain the right to travel with the children without the mother’s consent. Although this last request was not included in Mr. D.’s pleadings, both parties addressed it in their evidence and submissions.

[3] Ms. T.-D. opposes the motion. She denies that the children are at risk in her care and denies all allegations of contempt. If, however, the court finds a material change, she asks to increase access and to vary the location for pick up and drop off.

[4] The Office of the Children’s Lawyer (OCL) was appointed to represent the children on this motion.

[5] Since this motion was heard, counsel for the parents have twice sought to re-open the motion to provide fresh evidence. In each instance, dates were scheduled with the most recent being in October, 2018. Both times the request was withdrawn and neither motion to re-open proceeded.

Background Facts

[6] The parties married on January 2, 2005 and separated six and a half years later on July 14, 2011. They were divorced in February 2013. They have a son and a daughter. G. Jr. was born […], 2005, and L. was born […], 2007.

[7] G. Jr. and L. are now 13 and 11 years of age respectively.

[8] The litigation between the parties commenced in 2011. It has been high conflict and ongoing since then.

[9] Both the Ottawa Police Service and the Children’s Aid Society of Ottawa (CAS) have been engaged with this family on numerous occasions. Historically, much of the conflict was generated by the mother’s repeated allegations that the father sexually and physically assaulted both children.

[10] In November 2012, the week before their trial was to proceed, the parties signed Minutes of Settlement. Their divorce order dated February 13, 2013 incorporated the operative terms of their settlement: joint custody and split week, equal parenting time. Health care was the exception to joint decision-making. There, Mr. D. had final say.

[11] The first motion to change was commenced in 2015. It proceeded to trial in May, 2016.

[12] On July 8, 2016, Justice Toscano Roccamo released lengthy reasons that are available at 2016 ONSC 4463. She awarded Mr. D. sole custody of both children and ordered that their primary residence would be with him. Ms. T.-D. was awarded weekly access from Friday at 3:30 p.m. until Sunday at 5:00 p.m. Her order was detailed and contained many other terms that will be referred to as necessary in relation to specific issues argued before me.

[13] Justice Toscano Roccamo’s conclusions are set out on page 39 of her decision. She states:

1. I accept the Respondent’s submission and infer that the high conflict which ran between her and the children’s father before the Final Order was made persisted with little to no interruption afterwards.
2. I find, nonetheless, that the effects of the parental conflict have, since the Final Order, come to have a deleterious effect upon the children, not reasonably and actually foreseen at the time of the Final Order. In short, there has been “… a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child … which materially affects the child … and … which was either not foreseen or would not have been reasonably contemplated by the judge who made the initial order”; see Gordon v. Goertz at para. 13. This material change justifies a variation of the Order pursuant to section 17(5) of the Divorce Act.
3. No manner of joint parenting could have a reasonable chance of surviving the fundamental lack of trust between the parties while the Mother continues to maintain that the Father is an abuser and a pedophile.
4. The Mother’s allegations have been repeatedly and thoroughly investigated by police and the CAS and found to be unsubstantiated.
5. The Mother’s lack of insight into the impact of repeated sexual assault assessments on L. and repeated involvement of police and CAS in her children’s lives and her stated belief that she thus behaves in a manner which is child-focused and in her children’s best interests lays in question her psychological well-being and parenting capacity. While I can attach little weight to the substantially out-dated report of Dr. Alex Weinberger, which the Mother’s affidavit suggests ruled out any issue with respect to her psychological health, I do not share that view. Dr. Weinberger’s report foreshadowed the need for more extensive assessment and evaluation of the parenting capacity of the Mother, were the Mother to maintain her allegations against the Father without foundation.
6. Both children have been described as special needs. L. is learning disabled. G. Jr. is learning delayed and suffers from psychosomatic illnesses due to the parental conflict. His distress has resulted in withdrawal from the usual recreational and sportive activities of his peers.
7. A number of CAS workers predicted the children were at risk of emotional harm before and since the Final Order. I find that emotional harm has now occurred, and will persist and potentially result in the further psycho-educational and social decline of the children if there is no variation in the parenting arrangement to minimize the parental conflict.
8. I find that the children’s principal and teachers have been hampered in their ability to address the children’s special needs, scholastic and otherwise, due to the degree of attention required by the family. They are at times precluded from working cooperatively and productively with the Mother and timely attendance at school and completion of homework remains an issue while the children are in their mother’s care. The Mother has had difficulty accepting responsibility for her actions and her part in the children’s struggles at school. Her promises to deliver her children to school on time have had only marginal effect.
9. While the findings of a Family Court Clinic Assessment and Parent Capacity Assessment of the Mother would have been helpful, I conclude that the further delay inherent in the assessment process will not be in the children’s best interests. I am satisfied that until the Mother addresses her fear and distrust of the Father, which may benefit from more effective and regular counselling, and acquires new insight and acceptance of the part she plays in her children’s distress and special needs, there can be no effective joint custodial arrangement.
10. Having determined that the Father has met his onus to establish a material change in circumstances, I have undertaken a “fresh inquiry” into a parenting regime that serves the children’s best interests per Gordon v. Goertz. I have specifically considered the factors relevant to this inquiry, as enumerated in the Mother’s submissions as follows: a) The existing shared parenting arrangement perpetuates an environment of unmitigated parental conflict and does not serve the children’s special needs in education. It also fails to facilitate timely and coordinated communications and decision making in respect of the children’s medical and psychological needs. While the children are well bonded with both of their parents and their physical safety has not been found to be in jeopardy, the emotional damage experienced by the children in the current environment does not promote their special needs and best interests. b) While it is desirable to have maximum contact between the children and both parents, this should not be at the expense of their apparent need for uniform and timely decision making and care as relates to their health and education. In my opinion, the Father is better placed at present to meet these needs. c) The views of the children may only be inferred from their behavior and statements they have made over time. I have placed greater weight on the evidence of impartial third parties, including Dr. D.K. and L.W., as to the children’s views, rather than the parties’ competing accounts of the children’s statements over time. I am mindful of Dr. D.K.’s evidence that neither child, particularly L., wished to share hurtful things about their mother. He has observed that both children are well bonded and share a loving relationship with the Father. This would appear to be evidenced by text communications between the Father and the son, and the postcard L. prepared for her Father (Document Book 1, Tab 11, and Document Book 2, Tab 1). On the other hand, Dr. D.K. has confirmed the fractured relationship between G. Jr. and the Mother, and the rise of the child’s psychosomatic complaints in the current climate of parental conflict. L.W. has also made the same observations, and has borne witness to G. Jr.’s psychosomatic illnesses and G. Jr.’s reports of hitting and fighting at his mother’s home, and the child’s refusal as in September 2015 to return to his mother’s care, requiring the intervention of police and the CAS. While L. has yet to express the vehement preference to be with the Father that her brother has, she is considerably younger in age and, by all accounts, looks and behaves much younger than her years. Her views would, therefore, be accorded less weight. d) I mindful that a change from joint to sole custody will amount to a significant change in the current regime. I am satisfied that it is the parenting arrangement that will best provide a structured and predictable environment within which the children’s needs, particularly in health and education, will best be met. Sole decision making to the Father will ensure a reduction in the conflict associated with these and other issues. It should also obviate the need to attend bi-monthly on Dr. D.K.
11. I, therefore, conclude that at this time the Father is the parent better equipped to meet the onerous responsibilities and challenges of being sole custodian of his children’s best interests given their special needs. He should have sole decision making power in relation to the children’s medical, dental, educational, and recreational needs after communicating with the Mother. However, the requirement to communicate with the Mother should not be seen as licence or opportunity to delay or preclude decision making until the moment a disagreement is clearly expressed. Rather, the obligation upon the Father to communicate with the Mother should be seen as an obligation on his part to inform her of the children’s needs and a decision to be made.
12. I do not neglect to observe that the Father would also benefit from individual counselling to channel his energies away from doggedly documenting all problems in his dealings with the Mother and attending bi-monthly with the children at Dr. D.K.’s office to document or rule out the evidence of abuse of the children. His energies are better spent focused on his children’s needs, and subsequently opening the channels to improved communications with the Mother in the future, if feasible and in the children’s best interests.
13. In time, and after the parties have made some gains with individual therapy, I would strongly urge them to consider engaging in family counselling with a view to healing the wounds of the past and better supporting each other in the important role each plays in their children’s lives.

The Legal Test

[14] The jurisdiction to vary a custody order resides in s.17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). The test under subsection (5) has two parts. To meet the first part of the test, the judge must be satisfied that: (1) there has been a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) the change materially affects the child; and (3) the change was either unforeseen or could not have reasonably been contemplated by the judge who made the initial order. If this part of the test is met, the court moves to the second part and considers the matter afresh to decide the custody and access order that will meet the best interests of the children in their current circumstances. See Gordon v. Goertz, [1996] 2 S.C.R. 27.

Part I of the Test – Has There Been a Material Change Affecting the Children That Was Not Foreseen or Reasonably Contemplated

[15] Mr. D. argues that the ongoing conflict between him and Ms. T.-D. is causing continuous harm to the children. He says that Ms. T.-D. maintains her baseless campaign to discredit him with the children by repeatedly telling them that he hurt them in the past. He asserts that they are both emotionally and physically unsafe in her care. He claims G. Jr.’s relationship with his mother continues to deteriorate. His anger toward her and toward his situation is increasing. He is now reacting in ways that increase the physical risk to him. According to Mr. D., L. is different. He believes that she makes up false stories to keep the peace and appease her mother – a coping strategy that comes at significant cost to her.

[16] The ongoing conflict in this family has resulted in further CAS investigations and more interviews for the children. This has caused them ongoing distress. Mr. D. feels he must protect the children in the future by asking the court for supervised access.

[17] Ms. T.-D. denies that she has done anything other than express genuine and well-founded concerns for the care of the children while in Mr. D.’s care. She insists that she has a good relationship with both of her children and denies that they are in harm’s way while in her care. Ms. T.-D. places responsibility for the ongoing problems at the feet of the father. She denies that the children are doing well with him and insists that he continues to coach and manipulate them.

Analysis

[18] The statements made by the children as reported by their father, the CAS, their counsellor and the OCL indicate the extent of the ongoing conflict and unhappiness in their lives. Understandably, all accounts of the children’s statements before the court are hearsay. In some instances, the evidence is double hearsay such as the statements made by the children to their counsellor that were in turn relayed to the OCL who provided them to the court. Other than one passing remark by Ms. T.-D. in submissions, no objection was taken to the admission of the hearsay evidence. I consider this evidence for the truth of the contents. It is hearsay that I find to be necessary and reliable. With the exception of the father’s statements, the children’s statements were recorded by those whose job it is to interview children and record their statements accurately. I further find that the reliability of this evidence is enhance by the commonalities in the children’s statements made over time and to different professionals.

The Children’s Statements to Their Father

[19] Mr. D. describes G. Jr.’s disclosures to him as follows:

a. His Mother and sister come into his room at night to try to get him to agree to stuff to them and they try and convince him by saying “don’t you remember” this or that, but he tells them no. b. L. is telling her Mother whatever her Mother wants to hear and that their Mother is recording their conversations. c. His Mother asks him “what did your dad do to you this time, did he hit you”, but he says no and [sic] gets upset and leaves the room and deletes the recording, but then she comes back and asks all over again. d. He hears his Mother and L. talking for hours about this fictional abuse by me. e. His Mother was trying to get him to agree to do counselling with her friend N.D. (who is not a counsellor). f. Just before the kids come back to me on Sundays, L. fakes acting really upset and cries with their Mother sometimes for hours. g. G. Jr. is really angry at L. for lying to their Mother.

[20] Mr. D. describes L.’s disclosures to him as follows:

a. Her Mother told her that at their next doctor’s appointment “you can tell Dr. Kalin what daddy did to you”. b. Her Mother got her to say that she wanted to go for counselling but not to Michelle. L. told me however that it was her Mother who brought up the idea of counselling and she said, “I went along with it so that momma would stop questioning me”. c. Her Mother refers to me as “the monster” so their talks include questions such as “what does the monster do to L..” L. has told me she goes along with it because she doesn’t want to make her Mother “more angry”. d. Her Mother told her “if we just go to the police and tell them what daddy did then everything will change back”. e. Her Mother told her “when dad hugs you he doesn’t love you, it’s all fake”. f. L. invents lies for the Mother such as the food I give her for school lunches is horrible and there isn’t enough, that I make her sleep in my bed, that I hit her and I grab her arm, that she “hates being at dad’s” and “it’s horrible”. g. Her Mother and her accuse G. Jr. of hitting her and that he punches her while I hold her down. h. She and her Mother talk about how I threw her Mother down the stairs, broke her Mother’s leg, threw L. down the stairs, hit L. so hard she blacked out, and set L.’s hair on fire (all these statements are completely false). i. That she often cries for a long time with her mother at the end of access visits on Sunday in order to make her Mother happy.

The Children’s Statements to the CAS

[21] Since Justice Toscano Rocammo’s order was made on July 8, 2016, there have been three further CAS file openings. All occurred over a period of 10 months between February and December, 2017. The first was the result of a report made by Ms. T.-D.. The second was the result of a report by Mr. D. and the third was a result of an incident at the mother’s house that involved the police. The case notes were before the court.

(i) February, 2017 CAS File Opening

[22] This file opening resulted from Ms. T.-D.’s report that G. Jr. was suicidal. She reported him as saying that he wanted to kill himself and wanted to die because he could no longer cope with the situation. She also reported that Mr. D. told the children not to hug her, call her, or speak to her about anything at school. Ms. T.-D. said she suspected Mr. D. was abusing alcohol but did not provide any specific reason for that concern. She also alleged that the children were being adversely affected by custody and access situation. The ensuing investigation resulted in further interviews for the children.

[23] The CAS notes indicate that G. Jr. began his interview by saying that 10 CAS workers had visited their home. He said, they just come but cannot help. G. Jr. is reported as saying that he no longer trusts any counsellor or worker. He said he knows the problem relates to access with his mother. He denied feeling suicidal.

[24] The case notes further indicate that both children confirmed their ability to carry out their weekly telephone conversations with their mother without interference. They denied that their father told them not to hug her. Both G. Jr. and L. said they liked living with their father and reported appropriate discipline at home. It is noted that the children’s doctor and counsellor both reported that the children were doing better after the change in custody.

[25] The CAS did not verify Ms. T.-D.’s allegations. The CAS notes indicate many false reports by her in the past.

[26] Ms. T.-D. was not satisfied with the CAS investigation. She insisted that they interview the children again outside of the father’s care. The CAS did not do so.

(ii) September, 2017 CAS File Opening

[27] The next file opening occurred in September, 2017 following a call from Mr. D. reporting safety concerns for the children. He said G. Jr. and L. told him that they wait for their mother to go to bed before they fall asleep because they do not know what she is going to do next. The case notes report G. Jr. telling his father that his mother was unstable and he was concerned that she could hurt L. and him. Mr. D. also reported G. Jr. as saying that his mother told him to pack his stuff and get out because she did not want to see him anymore. She then took his bike to school and left it there for him.

[28] The children resumed counselling in the fall of 2017. Their counsellor reported to the CAS that she had stopped seeing the children in 2016 because their mother grilled them after every appointment about what they said in therapy. According to the case notes, L. expresses her worry that she will now get in trouble if she talks to the CAS.

[29] G. Jr.’s statement that he has seen 14 CAS workers also appears in the notes as reported to them by his counsellor.

[30] On October 25, 2017, the CAS notes their meetings with each child independently at school. The notes from L.’s interview report her saying that her mother continues to talk to her and her brother about how they are not telling the truth. She said that she does not like it when her mom talks to her about the whole “lying thing”. L. told the worker that her mother talks about how her father abused her but says she finds it confusing because she does not remember her dad ever hurting her. The case notes indicate L. saying that this had happened as recently as within the past two weeks. The CAS also report L. as saying that her mother told her that she left their father because he was hurting all three of them – that their father hit G. Jr. with a hockey stick and with a football and he took her, L., upstairs and hurt her. L. said it made her feel sad if her father did actually hurt her but she does not remember it happening. She told the CAS worker that no one had ever touched her in a weird, inappropriate way and never her private parts. L. is reported as saying that when her mom talked to her about their dad hurting her, she sometimes just answered so she would stop asking her questions. She said this upset G. Jr. but she just wanted the talks and questions to stop. L. felt like she was caught in the middle between her mother and her brother. She said both she and G. Jr. were afraid of their mother’s talks.

[31] The case notes further reflect L. telling the worker that she does not worry that her mom will hurt her but she is not sure about G. Jr.’s safety.

[32] In G. Jr.’s interview with the CAS at school that same day, he is reported to have said that his mother used to be nice to them but now she is just mean. The notes further indicated G. Jr. telling the worker that his mother tells him and his sister what to say and to tell the truth but she does not realize that they are telling the truth. G. Jr. said he had a weird feeling that his mother might do something to them at night.

[33] G. Jr. also reported that a man had been present at his mother’s house on the weekend. He said he saw this person as someone who had control over his mother. He also said the man was encouraging him to talk about the divorce because his mother was not allowed to. G. Jr. said he believed the man was trying to get him to say that he wanted to live with his mother.

(iii) The December, 2017 CAS File Opening

[34] This opening followed a report from the police that G. Jr. had run away from his mother’s house around 10 pm on the night of December 12, 2017. The notes indicate that he ran to the police station and said that his mother had hit him. He did not want to return to her house and asked to be taken to his father’s home. Shortly thereafter, Ms. T.-D. arrived at the police station with L.. She denied G. Jr.’s version of events and said that G. Jr. had hit her.

[35] The police took G. Jr. to Mr. D.’s house that night and returned the next morning to talk to him. The police reported that G. Jr. said that he did not feel safe at his mother’s house but cannot let his sister go alone.

[36] Ms. T.-D. was upset that G. Jr. did not return to her care that weekend. She now complains that Mr. D. did not confirm to her that G. Jr. was disciplined for hitting her. Ms. T.-D. interprets this lack of punishment as rewarding G. Jr. for misbehavior. She says that had G. Jr. returned to her care that weekend, she would have required an apology from him.

The Office of the Children’s Lawyer

[37] The OCL engaged a social worker, Ms. Claridge, to assist counsel with this file. Ms. Claridge deposed an affidavit setting out the views and preferences of the children and the results of her work. She limited herself to her own observations, statements made to her by the children and information received from the CAS, the children’s school and their counsellor, Michelle Hogetwerp. I find that the children’s statements reported by the CAS and described above are similar if not the same in many respects as those that Ms. Hogetwerp shared with Ms. Claridge and those statements made to Ms. Claridge.

(i) Ms. Hogetwerp

[38] Ms. Hogetwerp told Ms. Claridge that G. Jr. began telling her a couple of years ago how his mother would get angry and that he did not know how to act. She said G. Jr. described his mother as having three moods: (1) she is on the phone 50% of the time and ignores you; (2) she yells 40% of the time; and (3) she hits 10% of the time. Ms. Hogetwerp further advised Ms. Claridge that G. Jr. told her he feels as if he cannot do anything right in his mother’s eyes and believes that his mother cares more for L. than for him. According to Ms. Hogetwerp, G. Jr. also shared his worries about keeping L. safe.

[39] Ms. Hogetwerp conveyed to Ms. Claridge that L. says she loves her mother but finds her “tricky” when she gets mad and questions her whether she is telling the truth. Ms. Hogetwerp further reported L. saying that her mother tells her that her father used to hurt her but she does not remember any of the alleged abuses. L. asked Ms. Hogetwerp to help her learn how to manage her mother. Ms. Hogetwerp described L. as a “pleaser”.

[40] Ms. Hogetwerp also reported L. telling her that G. Jr. and her father got mad at her for writing a story about why she loves her mother. She said G. Jr. told her that she cannot tell people that she loves her mother.

(ii) The CAS

[41] When Ms. Claridge spoke to the CAS, they confirmed that they had an extensive file for this family. Ms. Claridge also reported that the CAS contacted her April 19, 2018 to say they had received a call from G. Jr.’s school regarding an assignment he had written where he said, “I get sad when my mom hits me and calls me bad words”. The CAS inquired of Ms. Claridge if there had been any new incidents since December, 2017. The CAS advised Ms. Claridge that they would not be following up with an investigation. They said they had spoken with the school and with Mr. D. and neither reported new information They said they were satisfied that the children were visible in the community, the OCL was involved and the children had already been interviewed multiple times.

(iii) Ms. Claridge’s Interview with L.

[42] Ms. Claridge reports L. telling her that their mother says that their father used to hurt them but she cannot remember this and, therefore, does not think that it is true. L. wishes her mother would stop talking about the past. According to Ms. Claridge, L. said her truth is that she does not want to hear complaints from either parent about the other. She does not want to take sides and she does not want her parents to get angry with her for not taking their side. She does not want to hear about the past because those things are not “Her Truth”. They are not her memory. L. also told Ms. Claridge that it is hard for her to be in the middle. She sees both parents every week, has a relationship with each of them and is trying to find her balance between them.

[43] Ms. Claridge further reports L. saying that mainly her mother is nice but when she gets angry, which is not every visit, she finds it confusing and does not know how to respond. She revealed that sometimes her mother says “weird stuff” that makes G. Jr. angry and that she finds confusing.

(iv) Ms. Claridge’s Interview with G. Jr.

[44] Ms. Claridge reports G. Jr. saying that he wants his mother to change but it has not happened and he doubts that it ever will. He said to Ms. Claridge that his mother is often angry and yells. He says she “gets in his face”, often blames him for things and on occasion, she hits him. He complained about her smoking cigarettes in the kitchen and spending a lot of time on her phone.

[45] G. Jr. told Ms. Claridge that he worries something will happen to his sister at their mother’s house. He complained that his mother treats L. like a best friend and is nicer to her than to him. G. Jr. said he currently sees his counselor, Ms. Hogetwerp, every two weeks and this allows him to “vent” about his mother.

Material Change

[46] I am satisfied that the conflict and dysfunction between Mr. D. and Ms. T.-D. continues unabated. The children, much to their detriment, are still caught in the middle and the target of their mother’s desire to have them believe that they have been hurt by their father. She persists in her efforts to co-opt their thoughts despite all of the professional investigations that have not found any evidence of the abuse she alleges.

[47] Ms. T.-D. argues that to the extent that the conflict is ongoing, it cannot constitute a material change in circumstance. Because it existed before the last order was made, she says it cannot be considered as unforeseen or not reasonably contemplated by the trial judge. See Litman v. Sherman, 2008 ONCA 485. In my view, the perpetual conflict between the parties is not the determining factor here. I find the material change that was not foreseen is the impact on G. Jr. and L. of their mother’s behavior and the ongoing conflict that is fueled by it. Ms. T.-D. demonstrates few, if any boundaries, in her quest to have the children believe that they have been harmed by their father. I find her unrelenting efforts to alter their truth is destructive and emotionally damaging to the children in ways that were not known to the trial judge and could not have reasonably been contemplated.

[48] The impact of Ms. T.-D.’s behavior on G. Jr. and L. emerges from the evidence in a convincing and consistent manner. For instance, on at least three different occasions, G. Jr. recounted to the professionals in his life the number of CAS workers he had seen. He expressed his frustration and lack of trust in their ability to help. He says the workers come, but they cannot do anything. These statements shadow his anger and fatigue with his situation. He says he knows the problem is his mother. He does not feel like anyone is listening to him and tells the OCL that he does not want to wait another 2 years to have this fixed. He wants his mother to behave differently but says it has not happened and does not think it will happen. He has run from his mother’s house directly to the police station late at night asking for protection and help. G. Jr. wants his mother to be nice to him, to stop talking about the past and to realize that when she asks them to tell the truth, they are telling the truth – that their father did not hurt them. G. Jr. does not feel loved by his mother in the way that he believes she loves L..

[49] The impact of Ms. T.-D.’s behaviour on L. is that she too wants her mother to change. She says like G. Jr., she is afraid of her mom’s talks and wants her to stop talking about the past. She wants to be believed when she says that her father did not hurt her. She wants the freedom to live her truth and not her mother’s version of it. She says sometimes she just agrees with her mother so that the questions will stop. L. wants the freedom to love each of her parents without challenge. She wants them to stop fighting. She does not want to hear complaints from one about the other. She says she finds it hard to be in the middle trying to find some balance.

[50] L. says she loves her mother but finds her “tricky” when she gets mad and questions her about telling the truth. She finds her mother’s behaviour confusing. She does not know how to respond and has asked Ms. Hogetwerp to help her learn how to manage her mother. L. is making these comments at an age comparable to what G. Jr.’s age was when he is said to have begun making similar reports that he did not know how to act when his mother got angry. According to Ms. Hogetwerp, it was about two years ago when G. Jr. began telling her this. G. Jr. and L. are two years apart in age.

[51] A further impact of Ms. T.-D.’s behaviour on G. Jr. and L. is that they now express concern for their physical safety. G. Jr. says he thinks his mother is unstable and worries that she may hurt them in some way. L. says she is more worried for G. Jr. than she is for herself. In December, 2017 G. Jr. ran from his mother’s home to the police station late at night reporting that his mother hit him. G. Jr. was just 12 years old at the time.

[52] In addition to the impact and potentially far reaching consequences to the children of Ms. T.-D.’s behaviour, I find that the evidence of the children’s views and preferences constitutes a second material change in circumstance that meets the threshold test under Gordon v. Goertz. The trial judge did not have the benefit of evidence from the OCL in 2016. She was left to extrapolate their views and preferences from their behaviour and statements made to school officials and their doctor. She could not have foreseen or reasonably contemplated what the children would think and feel today about their custody and access situation.

[53] Mr. D. also alleges acts of contempt by Ms. T.-D. that, if found by the court, permit him to move for supervised access under Justice Toscano Roccamo’s order that effectively deems further acts of contempt to be a material change. I note here that Mr. D. seeks nothing other than a finding of contempt. He does not ask the court to punish Ms. T.-D. in any way by imposing a penalty.

[54] Ms. T.-D. denies contempt. She says she did nothing wrong – either the alleged circumstances did not happen or did not happen as described. She remains of the view that responsibility for all ongoing parenting problems rests at the feet of the father. She claims that he is doing everything in his power to minimize her role in the lives of their children and that he is the one who flouts the court order. She also argues that Mr. D. failed to follow the proper procedure and therefore a contempt finding is not relief that is available to him. She says he improperly gave notice of his allegations in his motion to change and not by using the Form 31 Notice of Motion for Contempt as required under rule 31 of the Family Law Rules, O. Reg. 114/99. I do not find any merit in that argument. It is literally form over substance. Ms. T.-D. clearly had notice of the allegations against her and full opportunity to provide the court with her answer and defence, which she did. Moreover, the rule provides that Form 31 shall be served together with a supporting affidavit, by special service in accordance with subrule 6(4), unless the court orders otherwise (Emphasis added).

[55] To determine whether the evidence supports a finding of contempt, the court must apply a three-part test:

(i) the order that was breached must state clearly and unequivocally what should and should not be done; (ii) the party’s disobedience of the order must be deliberate and wilful; and (iii) the evidence must show contempt beyond a reasonable doubt. Any doubt must be resolved in favour of the alleged contemnor.

See Prescott-Russell Services for Children and Adults v. G. (N.), 2006 ONCA 81792.

[56] Mr. D. made multiple allegations of contempt against Mr. T.-D.. Here, I focus on the allegation that Ms. T.-D. deliberately withheld her consent to Mr. D.’s plan to travel with the children contrary to paragraph 18 of Justice Toscano Roccamo’s order. That provision reads:

Both parents shall provide their written consent to the other’s travel with the children outside of a 100km radius of Ottawa, Ontario, (as per the regular and holiday access schedules) provided that the parent travelling with the children shall:

a. Inform the other of the intention to travel outside of Ottawa, by written notice, indicating the date, duration and destination of travel, as well as advising of all parties travelling with the children as soon as knowledge of such particulars are available; b. Provide an itinerary including accommodation, address, telephone numbers, and proof of departure and return dates including travel tickets as soon as same are available, within one (1) day of that parent’s knowledge of such details. c. For travel outside of Canada, the parent travelling with the children shall provide the other parent with a travel consent letter that follows the guidelines set out by the Canadian Department of Foreign Affairs, which the other parent must notarize. The travelling parent shall be responsible for the cost of the notarized travel consent letter.

[57] It is Mr. D.’s evidence that he emailed Ms. T.-D. on October 11, 2017 about a few things including a travel document that he was asking her to sign so he could travel with the children to the U.S.A. over Christmas. His email set out the contact information for the law firm he had hired to meet with her and notarize the travel consent. He asked Ms. T.-D. to set up an appointment with the lawyer to sign the document before November 1, 2017.

[58] Mr. D. sent a follow-up email to Ms. T.-D. on October 15, 2017, asking her to confirm receipt of his earlier email regarding travel. Ms. T.-D. replied the same day saying, “I’ve set up an appointment with my lawyer and have no response at this time.”

[59] On Wednesday, November 1, 2017, Mr. D. sent a further email to Ms. T.-D.. He said, “I gave you a deadline of Nov. 1 to sign the travel consent. I checked with the Kirk Law Office and they said they haven’t heard from you. They told me they can give you an appointment usually within one day so the absolute final deadline is November 8.”

[60] Ms. T.-D. did not respond until Sunday, November 5, 2017. She stated, “I am unable to provide the signing of the document you are requesting. We can revisit this matter after the current legal matter is resolved.”

[61] On cross-examination, Ms. T.-D. did not provide any explanation for refusing to sign the travel consent beyond this. She said that after Mr. D. commenced this motion to change to further restrict her time with the children, she was no longer comfortable to let them travel with him.

[62] Mr. D. and the children were not able to travel over Christmas.

[63] Applying the three part test set out in Prescott-Russell Services for Children and Adults v. G. (N.), 2006 ONCA 81792, I find that Justice Toscano Roccamo’s order stated clearly and without equivocation what was required of the parties. Here, there was no argument that Mr. D. in any way failed to take the steps required of him as the travelling parent. Ms. T.-D., however, clearly did not take the corresponding action required of her to sign the consent. Justice Toscano Roccamo’s order requires that the non-travelling parent “shall” sign the consent once the required steps have been taken by the travelling parent. In this regard, I am satisfied beyond a reasonable doubt that Ms. T.-D.’s failure to act in this instance constitutes contempt and make that finding. The order was as clear as her refusal to sign was deliberate and wilful. The only explanation given for not facilitating their travel was that she was not feeling secure or comfortable with it in the face of this proceeding. This act of contempt constitutes a material change in circumstance under paragraph 18 of Justice Toscano Rocammo’s order dated July 8, 2016.

[64] Having found that part one of the material change in circumstances test has been met, it is not necessary for me to analyze each and every allegation of contempt as it relates to this threshold issue.

Part II of the Test – The Best Interest of the Child

[65] I must now undertake a fresh inquiry and consider the current circumstances affecting the children and the access terms that will meet their best interests. In doing so, I must also give effect to the principle that the child should have as much contact with each parent as is consistent with that child’s best interests. See s. 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

[66] Mr. D. argues it is in the children’s best interests that access now be supervised at a supervised access facility. He says in that way the children will be protected from their mother’s questioning, the risk of physical and emotional harm and the risk of further investigations and interviews. Ms. T.-D. denies all allegations of harm and says there is no risk. She says it is in the children’s best interest to leave the schedule as it is or, alternatively, to increase her access.

[67] G. Jr. was interviewed four times by Ms. Claridge and was consistent in his views and preferences on each occasion. He said he finds it stressful to go to his mother’s every weekend. He is unhappy with the present schedule and wants to reduce his time with his mother. His preference is to see her on holidays, like Easter or March Break, but not every weekend. G. Jr. describes his mother as mean, never happy, never says I love you, never smiles or jokes or says anything loving. He says that she is always talking about something that she thinks makes her look good. He said that when he lived with his mother half-time, he had stomach aches and poor grades. He is now feeling better and getting better marks in school. G. Jr. wants more downtime at his father’s and to be there on weekends. He believes that his father is better at helping him with his schoolwork. G. Jr. expressed his worry that his mother would be angry and question him if she knew what he told the OCL. Nevertheless, he said he was prepared to have his views and preferences discussed because he wants the situation to change. He is worried that something will happen to L. while in their mother’s care but agreed that he was okay with a different schedule than L. if that’s what she wanted and she could attend their mother’s home alone.

[68] Ms. Claridge interviewed L. three times. On each occasion, L. was consistent in her views and preferences. She likes the schedule the way it is. She says she misses her mother during the week and misses her dad on the weekends. Although she said that her mother is sometimes angry and makes allegations against her father about things that she, L., cannot remember, she loves both of her parents and wants a relationship with each of them.

[69] The OCL does not support supervised access pointing out that neither child asked for it.

[70] The OCL was emphatic in her submission that the litigation between the parents must stop. She emphasized that the children have been living with court proceedings for most of their young lives. Over the past 7 years, they have been interviewed multiple times by multiple professionals. They have been caught in the middle – forced to continue living and re-living the stress of their parent’s divorce. They want it to stop. They need it to stop. Indeed, G. Jr. told Ms. Claridge that he had been dealing with his parent’s divorce most of his life and it was not fun. He told her, as he had told others, that he had met with 13 CAS workers and nothing had been done. He expressed anger and frustration with his situation.

[71] Previously, the children’s counsellor, Ms. Hogetwerp, had also emphasized to the parents the harm to the children of the ongoing conflict. She told the OCL that she had written to both parents asking them to stop fighting. She had also written to Ms. T.-D. asking her to stop accusing the father of abuse when there was no evidence that it had happened.

[72] Throughout 2017, the CAS notes confirm their ongoing concern for the children’s emotional well-being as it relates to their mother’s continued questioning and insistence that they are not telling the truth to the various professionals. The notes also state their concerns regarding Ms. T.-D.’s mental health.

Analysis

[73] There are repeated reports throughout the evidence of G. Jr. saying that his mother is a different person when others are around. He says she is nicer to them in the presence of others and does not act like she hates them. I find G. Jr.’s request to see his mother only on holidays and March Break is in keeping with this sentiment insofar as it is more likely that the presence of family and friends over the holidays would restrict the mother’s behaviour that he wants to avoid. In this regard, I note the evidence provided by four of the six third party witnesses who identify as close friends of Ms. T.-D.. They say that they have only witnessed her act in ways that are consistent with the children’s best interests. One friend in particular, M.D., said that she, her husband, M.D., and their children had often spent holidays and special occasions such as Christmas and Easter with Ms. T.-D. and the children. Mr. M.D. also swore an affidavit supporting Ms. T.-D.’s parenting abilities. The other two witnesses did not offer any parenting information.

[74] While the evidence of Ms. T.-D.’s improved behaviour in the presence of others underscores a benefit of supervised access, I am not satisfied that the supervised access sought by Mr. D. is the appropriate remedy in this situation. It does not provide a long term remedy to what is already a long term problem. Supervised access should not be a permanent feature of a child's life. Its purpose is to provide a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used ... as a long-term remedy. See M. (B.P.) v. M. (B.L.D.E.) (1992), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 CarswellOnt 295 (Ont. C.A.).

[75] Considering G. Jr.’s age, his views and preferences are entitled to considerable weight. Although he says that he is prepared to have a schedule that is different from L.’s, I am not satisfied that it is in his best interests to limit his time with his mother to holidays only. I find this result would provide G. Jr. with too little time with her and would unduly restrict his leisure time with his sister on weekends. Accordingly, I find it is in G. Jr.’s best interest to vary the access schedule to reduce the time he spends with his mother to alternate Saturdays from 11:00 a.m. until 4:00 p.m. commencing Saturday, March 30, 2019. To be clear, G. Jr. will return to his father’s home after school on Friday, March 29, 2019. Access with his mother will start the next morning at 11:00 a.m.

[76] I find L.’s stated preference to keep things the way they are is consistent with the description of her as a “pleaser”. Notwithstanding her strong need to have her mother stop talking about how their father has allegedly hurt them and how she is to tell the truth about that when asked, L. does not wish to rock the boat, so to speak. She continues trying to please and appease to her detriment. She worries about what she has said to the professionals about her mother. She sometimes agrees with her mother’s allegations just to stop her interrogation. She looks to her counsellor for help to understand how to manage her mother as she struggles to find her balance between her parents. This is a very heavy burden for a young child. Accordingly, I find that it is in L.'s best interests to reduce the time that she is exposed to her mother’s toxic behaviour by further limiting her access time. Commencing Saturday, March 30, 2019, L.'s access shall change such that she will return to her father’s care at 4:00 p.m. This will allow L. to maintain the rhythm of seeing her mom weekly while also continuing to share regular weekend time with G. Jr. – something I find to be in the children’s mutual best interests. For clarity, L.'s access with her mother will start on Fridays at 3:30 p.m.

[77] The children are clearly communicating that they need their mother to stop distorting their truth. For years now, she has repeatedly asked them to disregard their reality and join hers. In her attempt to destroy their relationship with their father, she is risking their health and is destroying their relationship with her. If she does not stop, she risks having access terminated. In the best interests of the children, she would do well to address her mental health issues and make immediate arrangements for therapy.

My Order

1. Paragraph 12 of Justice Toscano Roccamo’s order dated July 8, 2016 is deleted and replaced with the following:

   The respondent mother shall have weekly access with L. from Friday at 3:30 p.m. until Saturday at 4:00 p.m. and access with G. Jr., in alternate weeks, on Saturdays from 11:00 a.m. until 4:00 pm commencing March 30, 2019.

2. Paragraph 18 of Justice Toscano Rocammo’s order dated July 8, 2016 is amended to permit the applicant father to travel with the children without the mother’s consent.

3. If the parties are unable to resolve costs, Mr. D. shall have 30 days from the release of these reasons to provide me with his Cost Submissions. Ms. T.-D. shall then have a further 30 days to respond. Cost Submissions are not to exceed 4 pages exclusive of Bills of Costs and any Offers to Settle.

Madam Justice Darlene Summers Released: March 22, 2019