Court File and Parties
COURT FILE NO.: 1660/09-09 DATE: 2019-07-16 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL SCOTT FOWLER Applicant – and – BREIGHANN ELAINE FAIRBURN Respondent
Counsel: Anthony Orazietti, Counsel for the Applicant Self-Represented [for the Respondent] Serge Treherne, Office of the Children’s Lawyer
HEARD: July 11, 2019
GAREAU J.
Reasons On Review of Interim Order Dated January 10, 2019
[1] The parties are the parents of KeighArrah Fowler, born February 2, 2006. As a result of reasons released by this court on January 10, 2019 the shared parenting arrangement between the parties of a week about was altered on an interim basis to provide that the applicant father have custody of KeighArrah and the respondent mother have parenting time on alternate weekends from Thursday at 4:00 p.m. to Monday at 9:00 a.m.
[2] The order released on January 10, 2019 further provides that the aforementioned arrangement was to be reviewed in motions court on July 11, 2019 with a view to ascertaining how the arrangement is working for KeighArrah’s benefit. This review took place on July 11, 2019. The applicant takes the position that the existing arrangement should continue with one variation, that being an abridgment in the alternate weekends from Friday to Sunday, which, apparently, KeighArrah is requesting. The position of the respondent mother is that KeighArrah’s care should revert back to a week about arrangement whereby she is cared for each parent on an equal basis.
[3] As was in the case when the court initially heard this matter on December 11, 2018 the court had the benefit of receiving submissions from the counsel for KeighArrah, Mr. Treherne, on behalf of the Office of the Children’s Lawyer. It is the position of Mr. Treherne that KeighArrah is content living primarily in her father’s home and does not want to return to a shared care arrangement with her parents. Mr. Treherne indicated that KeighArrah’s relationship with her mother remains a difficult one and one which KeighArrah has indicated to him that is worsening instead of improving. KeighArrah has made it clear to her counsel that she loves her mother but does not want to live with her. In fact, Mr. Treherne indicated to the court that KeighArrah has instructed him that she wishes less time at her mother’s home and wishes to be in her mother’s care on alternate weekends from Friday at noon to Sunday at noon. It is the position of the Office of the Children’s Lawyer that the change in the shared custody arrangement has been good for KeighArrah and that she is much happier than she was under the shared custody arrangement. Mr. Treherne reported to the court that KeighArrah has been clear and consistent in her preferences and in her instructions to him.
[4] The fact that KeighArrah is progressing well under the present arrangement is supported by the evidence of independent collaterals. KeighArrah’s year end report card, dated June 28, 2019, from Boreal French Immersion Public School is attached as Exhibit “A” to the affidavit of the applicant, sworn July 3, 2019 (Tab 1, Volume II, C.R.). that report card reflects that KeighArrah is progressing well in school with grades ranging from the high 70s to the high 80s. Her marks are either high level 3 or level 4 in achievement. Perhaps more importantly the learning skills and work habits, including responsibility, independent work, initiative, organization, collaboration and self-regulation are either good or excellent, as reflected in her report card. The general comments in her report card reflects someone who is contented and progressing well. KeighArrah is described as being “energetic and fun to be around”.
[5] The records from the Algoma Family Services who is doing counselling with KeighArrah, indicates that she is happy with the new custodial care arrangement and that she is doing well under the arrangement (Exhibit “B”, Affidavit of Paul Fowler, sworn July 3, 2019, Volume II, Tab 2, C.R.). In particular, the new arrangements reflect KeighArra’s wishes and preferences as reflected in the case note dated January 16, 2019, which reads as follows:
This worker met with KeighArrah on this date at her school for a counselling meeting. KieghArrah shared more information regarding her experience of the courts and the custody arrangement. KeighArrah shared excitement and joy regarding the decision. This meeting was spent celebrating the positivity KeighArrah was feeling and to discuss her hopes moving forward. KeighArrah shared many positive thoughts regarding school life and personal life. KeighArrah indicated that a lot of stress has been lifted and that she feels more in control. Conversations focused on what to do with this new sense of identity and hope.
[6] It is the position of the mother that KeighArrah is happy when she is at her home in her care and that what she is indicating to Mr. Treherne is not her real wishes and that the father is attempting to alienate KeighArrah from her. The respondent attempts to minimize the conflict between her and KeighArrah on the one hand while suggesting court ordered counselling between her and her daughter to improve their relationship on the other hand. There is no doubt that the relationship between the respondent and KeighArrah is a challenging one fraught with difficulties. This is borne out in the independent evidence. For example, the Algoma Family Services case note dated May 23, 2019 indicates the following:
KeighArrah shared that things between her and her mother have been getting more tense. We explored the relationship a bit and discussed how KeighArrah experiences mother as being mean and yelling often. When this worker asked what would need to be different in order to build a positive connection, KeighArrah said that she doesn’t think it to be possible. She shared that she feels that her mother is disappointed, indicating that her thought is mother feeling that KeighArrah’s birth ruined mother’s college experience. This worker expressed how powerful those feelings can be, especially when it comes to our mood and self-compassion. KeighArrah said that it can be hard but she just avoids it and distracts. When this worker asked again what things would look like if the two of them were closer, KeighArrah said maybe playing basketball together or watching tv without yelling or being upset with each other. This worker wondered if KeighArrah felt she would benefit rom a session with herself and her mother to have a conversation about things they can do to support each other and have fun together. KeighArrah reported that she is open to it, however, feels that it will not work because her mother will not listen or will just get upset.
[7] On the material before me it is clear that the best interest of KeighArrah requires the present arrangement to continue. It has been an arrangement under which KeighArrah has thrived and generally appears to be happier. My view is that the visitations by KeighArrah with her mother should continue as presently ordered, that is, from Thursday at 4:00 p.m. to Monday at 9:00 a.m. I have considered KeighArrah’s request that the visits with her mother be shortened but I am not convinced that this is in her best interest or that it will assist in improving the relationship between mother and daughter.
[8] I am of the view that the mother’s suggestion that there be joint counselling with her and KeighArrah is a good one which certainly would not hurt and very well may help in improving the relationship between them. It appears that KeighArrah is amenable to such joint counselling from her comments made to her counsellor, Kyle Karlash, as reflected in the Algoma Family Services’ case note dated May 23, 2019 referred to above. Therefore, it is ordered by the court that joint counselling take place between KeighArrah and her mother, BreighAnn, as can be arranged by Algoma Family Services and on terms and conditions as deemed appropriate by Algoma Family Services.
[9] In summary, paragraphs 1 and 2 of the order granted on January 10, 2019 will remain in effect on an interim basis. As ordered previously, the costs related to the motion heard on July 11, 2019 are reserved to the hearing judge ultimately disposing of the motion to change.
Gareau J.
Released: July 16, 2019