Court File and Parties

Court File No.: 276/17 Date: 2019-06-19 Ontario Superior Court of Justice

Between: Valoris for Children and Adults of Prescott-Russell, Applicant – and – E.D., Respondent J.S., Respondent

Counsel: A. Pare-Chouinard, for the Applicant Self-represented, for the Respondent E.D. Self-represented, for the Respondent J.S.

Heard: April 15, 2019 (at L’Orignal)

Court File No.: 237-2017 Date: 2019-06-19 Ontario Superior Court of Justice

Between: E.D., Applicant – and – J.S., Respondent

Counsel: Self-represented, for the Applicant E.D. Self-represented, for the Respondent J.S. C. Carvallo, for the Children’s Lawyer

Heard: April 15, 2019 (at L’Orginal)

Amended Reasons for Judgment

The original Reasons for Judgment released on May 24, 2019, was amended on June 19, 2019. The amendment is appended.

Kane J.

[1] This is high conflict proceedings between E.D. and J.S. who resided together for some 13 years and separated on August 19, 2017 following an incident which included police involvement. They have a daughter who is 12 years old and a son who is 8 years old.

[2] The children currently attend schools in Casselman.

[3] Each parent has used the police, Valoris and the courts in pursuit of their objective to attack the other parent and obtain sole custody. The parents have involved the children in pursuit of these objectives which is harming the children.

[4] Returnable today were the motions by each parent in the protection proceeding for an order that the children’s principle residence until trial should be with them, with access every second weekend to the other parent.

[5] It was agreed during argument that the determinations herein should be made both in the child protection and the family law proceedings, particularly given Valoris’ current position.

Position of Valoris

[6] Valoris today seeks to close the protection proceedings. It submits: (a) the children are not in need of protection from either parent; (b) its principle concern is the parental conflict; (c) the parents are involved in a high conflict dispute as to the children; (d) a comprehensive interim order is required to provide certainty and reduce conflict between these parents pending trial; and (e) no position as to whether the principle residence pending trial should be with the mother or the father.

Children’s Wishes

[7] The children’s lawyer is most recently involved since February 2019 and has interviewed each child four times. As to their wishes and comments of the children, the court was advised that: (a) the children love each parent; (b) the children’s wish since September 2018 was and is to reside with their father and his new wife and her daughter; (c) the children wish to have regular access with their mother; (d) the atmosphere at their father’s house is more relaxed and more active than their mother’s home, such as frequent trips to La Ronde and visits with extended family; (e) the daughter prefers the absence of rules at her father’s home, such as her time on internet, whereas her mother has rules such as bed time and time on the internet; (f) the daughter feels close to her step-mother and her young daughter; (g) the daughter feels caught as between her parents and has been implicated in their conflict, such as recently being required to testify at the trial of the criminal charges against her father; and (h) each child reported their mother’s past problematic physical discipline and her current conduct in that regard is acceptable.

[8] The mother is a hairdresser and resides in St. Isidore. She is off work Sunday and Monday. She works 9 a.m. to 5 p.m., Tuesday, Wednesday and Friday, until 9 p.m. on Thursday and from 9 a.m. until noon on Saturdays.

[9] The mother states she has remarried and her husband has started to build a new home for them in St. Albert.

[10] The father is a mason and resides in Cornwall since his most recent marriage. The mother states he also repairs and sells used computers. His intention if successful today is to immediately transfer the children to schools in Cornwall.

[11] The mother submits the father: (a) has 6 or 7 prior children with different partners and is now expecting a new child with his current wife. The mother states she has ongoing contact with some of his older children including those who no longer communicate with their father; (b) has refused payment of child support and not paid a $400, December 2018 cost award; (c) is permitting the children excessive internet time; (d) is permitting their daughter to frequently miss school, including eight days since September 2018; (e) takes the children out of school and becomes angry when she will not consent to that; (f) has shouted at school and Valoris representatives, such that he is now banned from the school; (g) has told the children they will be transferring schools to Cornwall with the result that their daughter is now ignoring directives from her current teachers; (h) will not cooperate and cancelled things like their daughter’s religious Confirmation and will not transport that child to the teaching sessions regarding the same now re-scheduled on May 26, 2019; and (i) insists the children’s transfer location be at a police station, which is unnecessary and harmful to the children.

[12] The mother seeks principle residence of the children and submits the father’s access be reduced to alternate weekends from Friday after school to Monday morning with school pick-up and drop-off.

[13] The father submits: (a) they separated when the mother called police; (b) he seeks principle residence of the children; (c) the mother’s access should be supervised and limited to every second weekend; (d) the mother on one occasion physically removed their son from his moving car, scratched her son’s face and banged his head against the washroom wall; (e) the mother previously reported to police that he threatened to blow up the children, resulting in him being charged criminally, not seeing the children for five months in early 2018 but was found not guilty at trial; (f) the mother again recently reported him to police for theft of property which resulted in him being charged; (g) he is awaiting the May 2019 decision regarding his criminal charges of threatening a Valoris worker, mischief, and breach of bail conditions; (h) the mother was recently charged in Cornwall with mischief due to her false reporting against him; (i) the use of the police station to exchange the children on Saturdays is to avoid the mother’s further false allegations; (j) the mother made false allegations against him to the Cornwall CAS which quickly closed their file; (k) the mother’s male partner belittles their son who is now reporting suicidal thoughts; (l) that he, unlike the mother, obtained dental services for their daughter; (m) the mother sought no medical treatment for two days when their daughter broke her ankle and did not advise the father for six days; (n) the mother is consuming excess alcohol, goes out on Saturday nights and smokes excessively in her home; (o) the children on March 7, 2019 reported bullying and excessive drinking by the mother to the CAS; (p) he was unaware of the $400 cost order against him; and (q) he does not see his older son who is mentally ill, has been hospitalized several times for that condition, has been in 25 foster homes, is a drug addict, attempted to kill the father’s infant and is currently in the care of Valoris.

Family Law Proceeding

[14] The mother on October 11, 2017 commenced an application under the Family Law Act for custody, child support and for a restraining or non-harassment order. Prior to commencing that proceeding, the mother on September 25, 2017 brought an emergency motion for return of the children.

[15] The court on September 25, 2017, made a temporary order which provides that: (a) the parties shall have joint custody; and (b) the children were to reside with the mother from noon on Sunday until 3:30 p.m. on Thursday whereupon the father would pick up the children from school and return them to the mother at noon on Sunday.

[16] The court appointed the Children’s Lawyer on November 16, 2017. The father was ordered to serve and file his reply material by December 7, 2017, including his last three years of Income Tax Returns and Notices of Assessment, or at least his pay slips for the last three years. The father has failed to comply with this court order.

[17] The mother similarly has not filed her Financial Statement and three prior years of tax returns and Notices of Assessment.

[18] The court on December 22, 2017 suspended the family law proceeding pending the outcome of the child protection application by Valoris.

Protection and Other Proceedings

[19] On December 26, 2017, the court in the protection proceeding made an interim order that the children’s primary residence would be with her mother, with the father to have access on alternate weekends. The father at that point was posting hateful comments about the mother on Facebook which one or both children had read, was discussing the legal issues and criticizing the mother and Valoris with the children. The mother was contributing towards his parental conflict but was cooperating with Valoris.

[20] The father objected to the interim court order made on February 7, 2018 that his access needed to be supervised, posted a video recording of the court hearing online and then began supervised access.

[21] The father on February 28, 2018, was held in contempt and ordered to pay a $500 fine for breach of the court order prohibiting discussion of the legal issues with the children and communicating his criticism of the mother to them. The father was directed to remove his video recording and social media posts regarding the children and his criticism of the mother.

[22] The father had seven sessions of access supervised by the CAS in Cornwall in June and July, 2018 which were not problematic. That resulted in removal of supervision of that access.

[23] On May 31, 2018, the court recorded the high conflict between these parents and the need that this matter proceed to trial.

[24] The father failed to attend the case conference on June 5, 2018 and was ordered to pay $400 costs.

[25] The court by interim order varied the father’s access terms on July 12, 2018 pursuant to which he was to have access at least once per week subject to the discretion of Valoris as to supervision and the length thereof. The court noted the father was not complying with court orders and was exposing his children to conflict with their mother.

[26] The pending trial in the protection proceeding was adjourned on September 13, 2018. That court stated a shared parenting schedule is the objective and that the father’s bail conditions were to be varied to permit him picking up the children at school in Prescott Russell or by his spouse at the mother’s residence.

[27] The father’s access with the children since October 15, 2018 has been: (a) from Thursday after school until early Saturday afternoon in week 1; and (b) from Thursday after school until he returned to school on Monday morning in week 2 (the “Current Schedule”).

[28] Valoris reported few problems related to the above access except for the father’s continuing involvement of the children in parental disputes which included bringing the children to court and his attempt to have the children interviewed by a father’s lobby group.

[29] The mother had an altercation with a babysitter she was using in the summer of 2018. The father twice brought the children to police to be interviewed regarding that argument involving the mother. The mother ultimately terminated the babysitter.

[30] The mother continued to report concern as to the father’s care for the children.

[31] The father on October 24, 2018 was found not guilty of uttering death threats against his children and the mother, as reported by the mother.

[32] The father in November 2018 announced his intention to seek sole custody. He took the children with him to a Biker’s Club on one occasion.

[33] The father’s charge of uttering threats to police officer was dropped on December 6, 2018 upon his execution of a Recognizance to keep the peace for twelve months.

[34] In December 2018, the father advised Valoris that he attempted to have the mother arrested as she was prohibited from communicating with him and had sent him an email with the daughter’s report card.

[35] The daughter’s school recommended an educational plan to assist her academic performance. The mother agreed to the plan. The father refused to consent to that assistance being provided.

[36] The court on February 22, 2019, adjourned the summary judgment motion brought by Valoris on consent as a trial was needed.

[37] The father’s criminal trial for uttering threats against a Valoris representative, failure to comply with conditions and court appearances, proceeded in the spring of 2019. A decision is anticipated in May, 2019.

[38] The mother worked with Valoris representatives through the fall of 2018 and the spring of 2019 to improve her capacity to deal with and resolve conflicts with the children.

[39] Valoris reported some improvement in the father’s capacity to control his temper however he continued to report his intention to sue many people including Valoris employees, lawyers, the OCL, police officers and became vindictive towards “anyone who confronts him or does not give him what he wants”. The court witnessed such conduct during the father’s argument of this motion.

[40] The 12 year-old daughter has a “boyfriend”, who the father and his wife permitted to sleep over one night in their home, in the daughter’s bedroom.

[41] On March 22, 2019, the father’s motion to obtain the principal residence for the children was denied given the pending April 15, 2019 child protection trial.

[42] The court on April 5, 2019 at the father’s request adjourned the upcoming April 15 child protection trial to the 2019 fall trial session pending the father’s presentation of evidence that he was medically unable to endure to a trial. The court thereupon scheduled today’s motion for interim orders pending trial including the parents opposing requests for principal residence of the children with access to the other parent limited to every second weekend.

[43] Valoris in response to the further trial adjournment served its April 11, 2019 motion for leave to terminate the December 22, 2017 supervision order, to permit withdrawal of its child protection application and for a temporary custody and access order in the Family Law proceeding.

Analysis

[44] The wishes of this 12 and eight-year-old are relevant, important but not determinative.

[45] Preference for a household where structure, limits, parental expectations and disciple are absent is not the test as to what is in the best interests of a child. Principal residence should not be determined upon a popularity contest between parents.

[46] The father’s wish to change the children’s schools two months prior to the end of the school year reflects his personal preference and convenience to the detriment of the children. The fact these children on April 15 should complete the academic year at their current schools should be apparent to any parent. The father’s inability to see that is troubling and creates doubt as to capacity to decide what is in the children’s best interest.

[47] Valoris’ conclusion that the children are not in need of protection, the reported cooperation from and progress the mother made with counseling and the statements of the children to their counsel regarding the mother’s current conduct contradict the father’s allegations that she is an unfit parent.

[48] The mother has anger issues which she has struggled with in the past but has cooperated and worked with counseling to address that and has made improvements in that regard.

[49] The father will not acknowledge or address his anger issues.

[50] The mother is but one of many the father criticizes and opposes. His anger and automatic rejection of anyone who disagrees with him causes serious problems and negatively impacts these children in exposing them to his anger and criticism of others, including the mother.

Trial

[51] This trial of the family law proceeding should proceed peremptorily during the 2019 fall trial sitting, is accordingly added to that trial list and should not be adjourned.

[52] The father in the family proceeding is required to file his answer, financial statement and copies of his 2016 to 2018 income tax returns and Notices of Assessment by July 12, 2019, failing which he shall be noted in default and prevented from participating in the Family Law trial.

[53] The mother shall by July 12, 2019, serve and file her financial statement together with her 2016 to 2018 income tax returns and Notices of Assessment, failing which her Family Law Application is dismissed.

Children’s Lawyer

[54] The office of the Children’s Lawyer is requested to transfer and continue its engagement of the existing lawyer as counsel for the children in the Family Law proceeding.

Interim Orders to Trial

[55] The request by each parent for an order of custody, principle residence and limiting the other parent to access once every two weeks is denied. Such requests are an attempt to advance their chances for the upcoming trial. The children should not be further uprooted pending trial and then possibly changed again at trial.

[56] Each parent is at fault for their angry and their vindictive vendetta against one another, to the detriment of the children who they are failing to protect.

[57] Each parent has things to contribute towards the care and development of these children which should continue, absent the current vendetta attacks against the other parent and involvement of their children therein.

[58] The Current Schedule will continue until the last day of school in June 2019 (the “End of Term”) and will resume commencing the week of September 2, 2019 until the decision at trial.

[59] During the Current Schedule, the father or his wife will pick the children up from their school entrance at the end of school on Thursday and deliver them back to that entrance on Monday mornings in week one and deliver them on week two on Saturdays at 12:30 p.m. to the mother.

[59(a)] Any pickup or drop-off at school by the father shall require him to remain inside the vehicle at all times and to not exit the vehicle which shall only stop or park at a designated visitor parking location until the children enter or exit the vehicle.

Summer Holidays

[60] Between the Monday morning at 9:30 a.m. immediately after the End of Term until 9 a.m. on September 2, 2019, the children shall reside one week, alternating, with each parent, namely from Monday at 9:00 a.m. until the following Monday at 9:00 a.m. The only exception to this End of Term until September 2, 2019 schedule shall, subject to the notice requirement below, be one two consecutive week holiday period with each parent whereupon the alternating weekly schedule will resume with the other parent until September 2, 2019.

[61] The mother has first choice of dates for a two-week holiday this summer and shall notify the father via email of the dates of her two-week holiday this summer with the children by noon on May 12, 2019. The father shall thereupon be entitled to notify the mother via email by noon on May 19, 2019 of the two weeks holiday period he is taking with the children.

[62] Failure to deliver such summer holiday notice by the time and dates indicated will prevent that parent from having a two week consecutive holiday period this summer with the children.

Pick-Up, Drop-Off Location

[63] The exchange location on Saturday during the Current Schedule and on Mondays during the school summer holidays shall be on time and at the front of St. Andrew’s church in St. Andrews ON, at which, the parents and/or their partner shall remain in their car during the exchanges and not communicate in any way with the other parent.

[64] If necessary, the criminal courts are requested to amend any conditions to permit such exchanges of the children between these parents.

Authority

[65] The mother shall have exclusive interim authority regarding educational and religious matters involving the children.

[66] The children shall continue to attend their present schools until trial.

[67] The father may not authorize or request the absence of the children from school and must assure their daily attendance unless directed otherwise in writing by a doctor, which he must email to the mother within 48 hours.

[68] Neither parent may schedule out of school activities or require the children’s attendance thereat during the time the children are to reside with the other parent, unless consented to in advance in writing by the other parent.

[69] The father shall be responsible for the dental treatment of the children which shall occur during their residence periods with him. The mother shall receive email notice thereof from the father within 48 hours disclosing the nature of such treatment and is entitled to communicate with that health care provider.

[70] Beyond circumstances requiring immediate medical attention of the children which either parent may and must obtain and then notify the other parent about via email within 48 hours; the mother is responsible to obtain all other medical treatment of the children but must via email provide the father with the nature of the treatment received whereupon he shall be entitled to communicate with but not instruct health care provider(s).

[71] The parents are responsible for the discipline and safety of the children while they reside with them. The parties are required to prevent their spouse or partner from disciplining or imposing their will upon the children, unless required for the immediate physical safety of the children or others.

[72] The children at home shall be limited to one hour non-academic related computer and/or internet time per day.

[73] The daughter’s male friend may not sleep in the same bedroom she occupies.

[74] The children may not be taken to any Biker Club, bar, or other adult entertainment facility.

[75] Prior leave of the court is required before filing any new motion before trial.

Communication

[76] The parties may only communicate to each other in writing via email. They may not communicate with one another verbally, by gesture or through others.

[77] Absent a medical emergency involving the children, the parents may only email one another a maximum of once per day. Such emails must be polite and may not contain criticism of the other parent or their family.

[78] The parents are prohibited from communicating publically or posting on line, text or videos about the other parent, the legal issues between them, their children, Valoris/CAS or the court.

[79] The parents may not question, discuss or participate in conversations with their children regarding the other parent, the partner or family of that other partner or the legal issues between the parents. The children may discuss their questions as to legal issues with the Children’s Lawyer. The parents may not suggest or encourage the children to communicate with the OCL and may not discuss with the child any communication between a child and the OCL lawyer.

[80] The parties may not discuss, question or make critical comment about the other parent, their partner or the children’s activities with the other parent with the children or in their presence of the children.

[81] Unless the children face immediate risk of harm, each parent may not while the children are residing with them, communicate about the other parent to police or Valoris or CAS, until after the children return to reside with the other parent.

Protection Proceeding

[82] The court by final order hereby: (a) terminates the December 22, 2017 child protection supervision order; and (b) authorizes the withdrawal by Valoris of its child protection application

Mr. Justice Paul Kane

Released: June 19, 2019

Appendix A Amendment

The following paragraph was added on June 19, 2019:

[59(a)] Any pickup or drop-off at school by the father shall require him to remain inside the vehicle at all times and to not exit the vehicle which shall only stop or park at a designated visitor parking location until the children enter or exit the vehicle.