Court File and Parties

COURT FILE NO.: FD408/18 DATE: June 5, 2019

SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: M.P.M., applicant AND: A.L.M., respondent

BEFORE: Tobin J.

COUNSEL: Jelena Buac for the applicant A.L.M. in person Therese Landry for the Children’s Lawyer

HEARD: May 30, 2019

Endorsement

Introduction

[1] The applicant (“father”) of two children has not had access with them since September 2018. He claims the respondent (“mother”) has alienated the children from him.

[2] The mother claims the children are estranged from the father because of: (1) his abusive behaviour toward her, which occurred in front of the children; and (2) his entering into a new conjugal relationship immediately following their separation.

[3] In his motion, the father asks the court for a temporary order placing the children in his care. He also asks that the mother have no access with the children for a least two months, together with other ancillary relief. This, he argues, is the only way he can begin to overcome the effects of the mother’s alienating behaviour.

[4] The mother, in her motion, seeks an order placing the children in her custody. She asks, as well, that the father complete certain programs before attempts are made for him to reintegrate with the children.

Facts

[5] The parties began living together in 2006. They married on September 5, 2012.

[6] The parties are the parents of two children: R.M.L.M., born in 2008; and R.S.P.M., born in 2011.

[7] The parties separated in December 2017.

[8] The father is a partner in a construction business that operates from mid-April to November each year.

[9] While the parties cohabited, the mother was at home with the children and was the parent primarily responsible for their care. Following the parties’ separation, she obtained employment.

[10] The mother claims that, throughout their relationship, the father was verbally, emotionally, physically and financially abusive toward her. The children saw some of this abuse. This, she claims, partially explains why the children do not want to have contact with the father.

[11] The parties do agree that they argued while they lived together. The intensity of the arguments increased in the period leading up the separation. They also agree that some arguments took place while the children were present.

[12] The father denies that he was abusive, as claimed by the mother.

[13] The mother’s evidence is that she began counselling at the London Abused Women’s Centre in 2016.

[14] The mother’s evidence is that she reported the abuse to an intake supervisor in advance of counselling the parties attended in June 2017. Her evidence is that the father displayed abusive behaviour in a subsequent counselling session.

[15] The father claims that he was not abusive and that there is no independent evidence of abuse: there are no reports of abuse to the Children’s Aid Society or the London Police Service.

[16] The father points to an August 28, 2018 interview the mother had with the clinician who assisted counsel for the Children’s Lawyer. In that interview, the mother denied any violence in their relationship.

[17] In response to the mother’s claim of financial abuse, the father responds that he has voluntarily paid support to her since the separation in an amount greater than required the Child Support Guidelines.

[18] Despite her claims of abuse, the mother does not meaningfully or convincingly dispute the father’s evidence that, prior to their separation, he was an involved parent who participated in caregiving and joint decision-making.

[19] The separation in December 2017 came as a devastating blow to the mother. Her perception is that he left abruptly and without warning.

[20] The separation occurred a number of months after the mother’s mother received a cancer diagnosis.

[21] The mother candidly acknowledged in her evidence that, in the months leading up to the separation, she “fell apart emotionally and physically.” She described that “the children have directly witnessed [her] fall apart and put [herself] back together with the help of friends, family and social services.”

[22] Beginning in January 2018, the father tried to arrange to spend time with the children. He did this by communicating directly with the mother. The father’s evidence is that the mother would often give reasons why he could not spend time with them, usually because she had already made plans for them.

[23] He was able, in January 2018, to see the children once or twice a week and enjoy activities with them, including skating and swimming at the YMCA. On one occasion, he went to the matrimonial home to spend time with the children while the mother went out.

[24] Beginning in late January 2018, the father observed behaviour on the part of the mother that escalated and led him to believe that she was negatively influencing the children regarding the time he spent with them, which adversely affected his relationship with them.

[25] By February 2018, the father saw very little of the children and he observed that the children began not wanting to spend time with him outside of their home. When he went to pick them up, they appeared to the father to be confused and upset. They wanted him to stay at home.

[26] In an effort to overcome these difficulties in retrieving the children from the home, the father suggested to the mother that he pick the children up directly from their school. She did not think this was a good idea for the children: their school should be a safe place for them and not associated with access issues.

[27] The mother’s actions in response to the father’s request for access must be looked at in the context of her response to learning that the father started a relationship with another woman. She was hurt and deeply upset.

[28] The father’s material contains a compendium of actions taken by the mother designed to interfere with his relationship with the children including:

• She attended at the father’s residence with the older child to confront the father’s new partner.
• She contacted the police to assist her in preventing the father from picking the children up from school.
• She insisted that the time the father spent with the children should be inside of the family home.
• When the father tried to pick the children up from home, the mother would not encourage the children to go with him or assure the children that both parents love them and that all would be all right.
• She, or the children, would call the father to tell him that the children did not want to go for access.
• The children were not ready to leave for access when he would come to pick them up.
• The mother called the father, while she had the daughter in her care and the son was in the father’s care, to criticize him for not giving the children money for a book fair.

[29] In consequence of these difficulties, the father commenced this proceeding on March 28, 2018. He brought an urgent motion before a case conference seeking the involvement of the Children’s Lawyer and a parenting schedule.

[30] On April 28, 2018, McArthur J. made an order on the basis of a consent endorsement request that provided access to the father, with pick-ups at the school and drop-offs at the matrimonial home.

[31] Counsel for the children through the Office of the Children’s Lawyer was appointed.

[32] The father’s evidence is that, on some occasions when he was able to pick the children up from school on Wednesdays, they quickly calmed down once they were in his car and away from the school. He described positive visits with them. However, when it came time to drop the children off at their mother’s home, their mood changed drastically. The father described the children as becoming cold and distant toward him. Despite the order allowing the father access to the children on alternate weekends, this did not occur. The mother described the children as being traumatized. She did not want the children to be around the “new girl” as it would be emotionally traumatizing. [1]

[33] In late April 2018, the Children’s Aid Society became involved in response to a referral made about the father picking the children up from school. After investigating, the Society determined that there was no protection matter to investigate. The parties were referred to community resources.

[34] Because of the difficulty in having access take place, the parties attempted access exchanges at Merrymount Children’s Centre. That did not work either. Merrymount withdrew their services in late June 2018 after a series of three failed access exchange attempts. After Merrymount, the parties tried to have access exchanges take place at Springbank Park. That was not successful either.

[35] As time passed, the children’s attitude toward their father worsened. On one occasion during an access attempt at Springbank Park, the younger child gave the father the “middle finger,” swore at him and tried to hit him. The mother did not intervene.

[36] By order of Templeton J. dated August 29, 2018, the father’s motion for restorative counselling was granted.

[37] This restorative counselling was to be undertaken by Ms. Paula DeVeto. The father completed his intake appointment with Ms. DeVeto on September 25, 2018. The respondent delayed and did not conduct her intake appointment until November 1, 2018.

[38] The father’s last attempt at access took place on September 19, 2018, again at Springbank Park. On that occasion, the mother confronted the father about his motion regarding the sale of the matrimonial home. She did so in front of the children. She demanded, in front of the children, that he tell them about the court ordering the sale of the home.

[39] After this access attempt, and the obvious distress that the children suffered each time access was to take place, the father decided to temporarily hold off seeking access until restorative counselling could be given a chance to work.

[40] Ms. DeVeto’s report was put in evidence on this motion. It is entitled Family Treatment and Intervention Report. It appears to be dated February 25, 2019.

[41] This reconciliation counselling was not successful. The report discloses the following:

• The children have refused to separate from [the mother] when attending in the office. This counsellor has made efforts to engage the children in [the mother’s] presence, which had been sabotaged by her strong emotional responses, derogatory comments about [the father] and lack of support towards suggestions made by this counsellor.
• The [mother] has created barriers that prevent the children from initiating contact with their father, rather than attempting to solve problems constructively.
• There is evidence to suggest that the [mother] has and continues to expose the children to adult issues.
• As the counsellor did not see the children except with the mother, she was not able to determine whether [the children’s] refusal to see their father was at least partly based on their direct experience with him.

[42] Ms. DeVeto concluded that the mother is “negatively influencing the children against [the father].”

[43] The mother contends that Ms. DeVeto had a conflict of interest, was biased against her and that, as a consequence, little weight should be given to her report.

[44] In support of his contention that the mother is motivated to alienate the children, the father produced audio recordings that he made of conversations that he had with the mother.

[45] The mother argues that the recordings should be given no weight because they do not reflect the entirety of the conversations that were recorded.

[46] In F.(A) v. W(J.), 2013 ONSC 4272, Harper J., in the context of a trial, addressed on a voir dire the admissibility of two recordings made at access exchanges. The court noted the struggle courts face when considering the issue of recordings made without the knowledge and consent of the other person.

[47] Generally, surreptitious recordings of telephone calls by litigants in family law matters should be discouraged.

[48] There is a wide scope for potential abuse in this practice.

[49] Justice Harper concluded that:

… in most family law cases, the surreptitious taping of the other party should be generally discouraged. I also agree that much of the reasoning behind the desire to discourage such conduct is that the parties should build a trust in the other to be able to parent after separation. However, in far too many cases…the goal of building of trust became masked by one of the parties saying one thing in public and doing something very different when she thought she was safe from scrutiny.

[50] The recordings were admitted after Harper J. balanced the prejudice to the party recorded, against the probative value of the recording, as well as its reliability.

[51] In the case before me, I am satisfied that the recordings accurately recorded those parts of the conversation that were put in evidence. The mother does not say what was omitted from their recorded conversation that would be of assistance to her. I will consider discrete portions that reflect on the mother’s attitude toward the father and how that affects her view of his relationship with the children.

[52] What is clear from the recordings is that the mother viewed the father leaving the matrimonial home as him choosing his girlfriend over the children.

[53] The following is an example of a statement made by the mother:

… but I sure as hell know that so long as she [the father’s girlfriend] is involved with you, those children are not going to go with you.

[54] These recordings were made December 9, 2018.

[55] In addition to the assistance Ms. DeVeto attempted to provide, the Children’s Lawyer provided counsel for the children who in turn was assisted by the social worker clinician, Lisa Heslop.

[56] In order to ascertain a child’s views and preferences, the Children’s Lawyer must consider them within the context of consistency, strength and independence of those expressed wishes.

[57] In this case, the Children’s Lawyer counsel and clinician were not able to determine that the children’s views were independent, nor were they able to determine the consistency or strength of the children’s views and preferences. This was the case as the children refused to have individual private interviews with their lawyer and the clinician.

[58] The mother’s evidence is that she is supportive of the father having a relationship with the children. She states that she actively encourages the children to see their father, reminds them that he loves them and that they need to have a relationship with him. It is her evidence that she has “tried everything [her power] with the exception of physical force, to get them to see their father.”

Legal Considerations and Analysis

[59] The merits of the two motions before me must be determined based on the best interests of the children: Children’s Law Reform Act, R.S.O. 1990 c. C 12, ss. 21(1)- (4) and 72.

[60] It would be in the best interests of the children to have a positive relationship with the father.

[61] In this case, the father has provided cogent evidence that the children’s resistance to contact with him was influenced by the mother’s words and actions.

[62] However, on this motion, I must also consider the mother’s evidence that she acted to support the relationship but it was the father’s actions – abuse and his relationship with his girlfriend – that caused his estrangement from the children.

[63] The conflicting evidence is untested by cross-examination.

[64] I must also consider whether the change in residence sought by the father at this time would be in the children’s best interest.

[65] Despite Ms. Buac’s well-crafted and comprehensive argument, I find that on this motion the drastic step of removing the children from the care of the mother and preventing them from seeing her at least for the next two months is not in their best interests:

1. There is conflicting evidence regarding the steps the mother has, or has not taken, to encourage access. I am unable to find on the conflicting evidence before me that the mother is the sole cause of the children’s distress. This case is unlike the situation in Cirinna v. Cirinna, 2018 ONSC 4831.
2. The trial of this matter is now scheduled to commence in October 2019, approximately four months from now. In Kaverimanian v. Manickam, 2014 ONSC 1729, a case where placement was changed on a motion for a temporary order, a trial was not expected for another ten months. As well, the court in that case had the benefit of both sides having cross-examined an assessor whose report was before the court.
3. A trial court will be in a much better position than this court to make the necessary factual determinations to support, or not, the father’s request.
4. The mother did, to some extent, intend to have the children go with him on some access visits. It is the father who, much to his credit and child-centred approach, stopped access to allow the children to avoid the obvious distress it caused them.
5. Though Ms. DeVeto’s observations were helpful on this motion, the court did not have the benefit of a parenting capacity assessment, as was the case in Violente v. Beun, 2014 ONSC 100.
6. Placing the children in the care of the father will be traumatic for them. The evidence does not disclose what clinical supports are in place now to soften the impact of such a change. A move, as proposed by the father, would require an immediate change in community, school and social support. These are the supports that afford them some stability now. They would also be living in a home where the father’s partner resides. Though she may be a very kind and loving person, the evidence discloses that the children do not see her that way, yet.
7. Generally, it is not in a child’s best interests to disturb a status quo on a temporary basis pending a trial absent exceptional circumstances: Shotten v. Switzer, 2014 ONSC 843. This is a very close case, but I am not satisfied that, on the entirety of the evidence before me, the circumstances cross into exceptional.

Disposition

[66] I cannot, at this time, grant the relief sought by the father for the reasons set out above.

[67] I find that it is in the best interests of the children that they continue to reside with the mother until the trial of this case.

[68] I also find that it is not in the best interests of the children to grant the mother sole custody of them as she asks.

[69] The evidence on these motions does not satisfy me that the mother can meet the needs of the children to have a relationship with the father. It is of concern that she has not been able, or possibly willing – the trial judge will be better able to determine this – to foster that relationship which is so crucial to the children. Her failure or inability to do so may well leave the trial judge with no choice but to conclude that the father’s plan is in the children’s long-term best interests, so they may have a relationship with both parents: see Malhorta v. Henhoeffer, 2018 ONSC 6472.

[70] In her submissions, the mother advised that she wanted to have the children diagnosed with post-traumatic stress disorder. Once they were so diagnosed, a course of treatment could be undertaken. No evidence was presented that a healthcare provider has made such a diagnosis, even on a tentative basis. I can only conclude that, at this point, it is the mother’s preferred diagnosis. It is in the children’s best interests that any diagnosis be provided by a healthcare provider who is qualified and independent. To this end, pending the trial of this matter, both parents shall have joint decision-making responsibility with respect to choosing a qualified and independent healthcare professional to assess, diagnosis and recommend a course of therapy, with the ultimate objective of the children enjoying a positive relationship with the father.

[71] For these reasons, an order will go as follows:

1. The relief sought by the applicant in his notice of motion at continuing record tab 21 is dismissed.
2. The relief sought by the respondent in her notice of motion at continuing record tab 31 is dismissed.
3. Pending the trial of this matter, the child shall reside in the care of the mother.
4. Pending the trial of this matter, the mother and father shall share decision-making responsibility regarding the choosing of a qualified and independent healthcare provider to assess, diagnose and recommend a course of therapy, if any, with the objective of the children enjoying a positive relationship with the father.

[72] I do not view this as an appropriate case for costs. However, if either party wishes to seek them, written submissions are to be made within seven days of the date of these reasons, with the other party responding within seven days thereafter. Cost submissions are to be no longer than three pages.

“Justice Barry Tobin” Justice Barry Tobin Date: June 5, 2019

[1] CAS records Referral Report April 9, 2018 (CAS disclosure Brief Tab D).