COURT FILE NO.: FC-17-1670

DATE: 2019/08/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Roberta Miller, Applicant

-and-

Charles Scott Alexander Miller, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Odette Rwigamba for the Applicant

Alison Southern for the Respondent

HEARD: July 30, 2019

ENDORSEMENT

[1] Mr. Miller brings a motion seeking increased access to the parties’ two younger children, ages 13 and 6. Ms. Miller opposes any increases in Mr. Miller’s access. Ms. Miller has agreed to reunification counselling.

[2] The parties separated in 2016. They have three children. The oldest is now an adult. Since separation, the two youngest children, E. and S., have continued to reside with Ms. Miller.

[3] Ms. Miller commenced this Application in February of 2018. The first case conference took place on April 4, 2018. Before the case conference, Mr. Miller had not had access with the children since shortly after separation. The parties disagree on why this was. Mr. Miller requested access through his lawyer, but the parties did not reach an agreement on access. Ms. Miller does not allege that Mr. Miller cannot parent the children safely. There are no child protection concerns with his care. Ms. Miller’s main complaint is that Mr. Miller abandoned the children, ignores their concerns, that E. is very angry at Mr. Miller, that Mr. Miller has not appropriately responded to E.’s concerns, and that S. does not know Mr. Miller very well.

[4] On April 4, 2018, the parties consented to an order that provided, on a without prejudice basis, for Mr. Miller to have one hour of access per week for one month and then, “if access goes well,” for access to be increased to two hours for a four week period. Access was to be reviewed at the end of May 2018.

[5] A second case conference took place on June 13, 2018. Again, the parties consented to without prejudice access taking place on Sundays for a minimum of one hour, and “if all goes well,” for access to increase after two weeks to one and half hour visits, and then, after four weeks, to two hour visits.

[6] The Court also referred this matter to the Office of the Children’s Lawyer (“OCL”). The OCL agreed to conduct a clinical investigation. The OCL appointed Janet Claridge to conduct this investigation.

[7] There were problems with access from the outset of this proceeding. Access did not take place from July of 2016 to April 8, 2018. April 15, 2018 was the second access visit after the April 4, 2018 case conference. E. attended with a typed list of questions that included questions about the court proceedings, demanded answers from Mr. Miller before the next visit, and then left with Ms. Miller. The list of questions is very concerning to the Court, and supports the conclusion that Ms. Miller is influencing E. in a manner that is contrary to E.’s best interests. By June of 2018, even these minimal access visits were not taking place. They did not restart until January of 2019, and have continued to be difficult, primarily due to E.’s resistance to visits and Ms. Miller’s negative interference.

[8] Due to these difficulties with access, Mr. Miller brought a motion seeking access on January 8, 2019. The parties consented to access continuing under the current order (being the June 13, 2018 Order) until the OCL report was received.

[9] Ms. Claridge completed her report in March of 2019. Problems with access have escalated since Ms. Claridge’s report was released. E., age 13, refuses to attend access, states that she does not have to attend access if she does not want to, and expresses anger at her father. S. appears to follow E.’s lead.

[10] Ms. Claridge records several observations of the children and the parties that are detailed in her report and which raise significant concerns that Ms. Miller is influencing the children.

[11] Mr. Miller has brought this motion for increased access. Ms. Miller has agreed to reunification counselling between Mr. Miller and the children. The parties are not able to agree on the counsellor to provide this counselling or how to share the cost.

[12] There are two issues to be determined:

1. What interim access is in the children’s best interest?

2. How should the undecided issues for reunification counselling be determined? Which counsellor should provide the reunification counselling? How should the parties share the cost?

Issue 1: What interim access is in the children’s best interest?

[13] The test to determine interim access is the best interests of the children. This is not a situation where a party is seeking to change an interim access order. The existing access is under a without prejudice access order (June 13, 2018). The January 8, 2019 Order also contemplates a review of interim access after the completion of the OCL clinical investigation.

[14] Although the Court should be cautious in relying on the recommendations of a clinical investigation before those recommendations are tested at trial on a full evidentiary record, the Court may take into account the observations of the clinical investigator. This is particularly so in this matter, where the parties contemplated that access be reviewed once Ms. Claridge’s report was provided, the existing access continues under an interim without prejudice order, and the significant concerns raised by the continued access issues.

[15] There is significant evidence in support of Mr. Miller’s allegations that Ms. Miller is interfering with his access and influencing the children against him. This evidence includes Ms. Claridge’s observations detailed in her report. For example:

• E. told Ms. Claridge that her mother and Mr. Summers think Mr. Miller is a bad person;

• S. told Ms. Claridge that Mr. Miller was not her father, that Mr. Miller hates her, that her father is Mr. Summers, that her mother told her when she was a baby Mr. Miller called the cops on her, and that her mother told her Mr. Miller was a mean and bad person;

• Ms. Miller’s conduct and interference at the observation meeting between Mr. Miller and the children. Although Ms. Miller challenges Ms. Claridge’s interpretation of Ms. Miller’s involvement at this observation meeting, she does not deny making the statements attributed to her. These statements include stating “S. is only staying because you are giving her gifts,” “E. you need to speak up and tell them you don’t want to be here and why because they think it is my fault,” and “Mr. Miller is acting like E. is invisible.”

• Ms. Miller admits that E. saw the court papers for this Application, although she states it was by accident;

• Ms. Miller’s father reported that Ms. Miller speaks openly about the court proceedings and adult issues in the presence of the children; and

• E.’s counsellor, Ms. Prolas, reported that Ms. Miller influenced E. against Mr. Miller.

[16] Although Ms. Miller states that she has made changes since the release of Ms. Claridge’s report, these statements are not credible. Ms. Miller denies and challenges almost all of Ms. Claridge’s report, except where the report contains positive statements about herself. When Ms. Miller states she has made changes, her admission to acting inappropriately in the past is limited to stating that the children “may have seen or heard something or interpreted her body language.” Ms. Miller lacks insight regarding the consequences of her conduct, or she is lying.

[17] Ms. Miller’s credibility is also undermined by the fact that she has not been forthright with the Court regarding the nature of her relationship with Mr. Summers. This is despite Ms. Claridge’s raising this issue in her report, with detailed observations from neighbours and the children that describe their relationship as more intimate than a friendship, including that Mr. Summers and his son reside with Ms. Miller. Despite this, Ms. Miller fails to address these discrepancies in her affidavit. Ms. Miller also filed Mr. Summers’ affidavit in support of her position on the motion. In his affidavit, Mr. Summers states that he is a close friend of Ms. Miller, but also fails to address the discrepancies. I do not need to make a finding on the nature of Ms. Miller’s relationship with Mr. Summers on this motion. I do, however, find that neither Ms. Miller nor Mr. Summers have been forthright with the court by failing to address the discrepancies regarding the nature of their relationship. I also place little weight on Mr. Summers’ evidence given his relationship, friend or otherwise, with Ms. Miller.

[18] I find it is in the children’s best interests, for Mr. Miller’s access to S. to be increased and to take place without E. I accept Mr. Miller’s evidence and Ms. Claridge’s observations that S’s access visits are positive. S. does not express the same concerns as E. I also note that Ms. Miller has not raised any concerns about Mr. Miller’s parenting aside from her allegations, which he denies, that he was never an involved parent. There are no child protection concerns. Ms. Claridge’s observations are that Mr. Miller was appropriate in his parenting during the observation visits. I am concerned that S. is being influenced by E.’s attitude towards Mr. Miller, and E.’s professed view that she needs to “protect” S. from Mr. Miller. E. also has expressed that she does not want to attend access, but only goes to protect S. and her mother. I find that it is in the best interests of both S. and E. for S. to have visits with Mr. Miller on her own.

[19] I also find that it is in S.’s best interests for Mr. Miller to be able to pick her up for access from school so that she is not transitioning directly from Ms. Miller’s care. Mr. Miller states he is able to pick S. up from school. I therefore order that Mr. Miller shall have access to S. every Wednesday, from after school (being approximately 3 or 3:30 p.m.) to 6:30 p.m. Mr. Miller shall be responsible for picking S. up from school, and returning her to the exchange location at Kelsey’s parking lot at Kanata Centrum.

[20] I find that it is in E.’s best interests to continue to have weekly access with Mr. Miller, with S., but that the duration of these visits be extended to up to three hours. The existing limit of one hour for such visits is unnecessary, unwarranted, and unduly restrictive. Extended time for these visits to up to three hours is still a very restricted access period, but allows a short period for the children to adjust to the access. There is evidence before me that there have been visits where E. softens her approach to her father after an adjustment period. Mr. Miller shall have interim access to both E. and S. on Sundays for visits of up to three-hours, to be extended for longer periods if access improves. The exchange location shall be at Kelsey’s parking lot at Kanata Centrum. This access shall be reviewed and adjusted as reunification counselling progresses.

[21] I have taken into consideration the letter provided by Ms. Kirkpatrick, who has provided counseling to E. since May 16, 2019. This letter was not provided as an affidavit, but simply as an Exhibit to Ms. Miller’s affidavit. No information has been provided on Ms. Miller’s experiences or qualifications, except for initials contained on her letterhead. I place very little weight on this letter for these reasons.

[22] I am very concerned that Ms. Miller changed E.’s counsellor after Ms. Claridge’s report was released. Prior to this change, E was in counselling with Ms. Prolas from January 2018 to March of 2019. Ms. Claridge’s report includes information provided by Ms. Prolas, which includes Ms. Prolas’ view that Ms. Miller is influencing E. in her attitude towards Mr. Miller.

[23] I do not accept Ms. Miller’s explanation that she changed counsellors only because the place through which Ms. Prolas provided counselling only providing counselling for limited durations. I find that it is not in E.’s best interests to have changed counsellors, and that the timing of this change relates to the release of Ms. Claridge’s report. I order that E. immediately return to counselling with Ms. Prolas, conditional on Ms. Prolas agreeing to provide such counselling on a private retainer. The cost of such counselling shall be shared as a section 7 expenses, in the same manner as the reunification counselling. This order shall be communicated to Ms. Prolas by counsel for the Applicant and the Respondent, together, optimally by phone or in person, so that Ms. Prolas can confirm to both at the same time if she is willing to agree to provide this counselling.

Issue 2: How should the undecided issues for reunification counselling be determined? Which counsellor should provide the reunification counselling? How should the parties share the cost?

[24] The parties signed Minutes agreeing to reunification counselling. An order shall issue in accordance with these Minutes.

[25] The parties have not been able to agree on the counsellor. Mr. Miller proposes Kelly Savage, who is available to start the counselling on an immediate basis. Ms. Miller requests additional time to try to locate a counsellor who provides services on a sliding scale.

[26] Given the importance of reunification counselling commencing as soon as possible, I order that the parties use Kelly Savage to provide reunification counselling if she is willing to do so.

[27] The parties have not been able to agree on how to share the cost of this counselling. Mr. Miller seeks to have the cost shared equally. Ms. Miller seeks to have the reunification counselling expense shared as a section 7 expense and shared in proportion to income. Neither party has provided an updated financial statement since their initial financial statements filed in February and March of 2018. For this interim motion, I am assuming that Mr. Miller’s income is $85,000/yr, and Ms. Miller’s income is $36,000/yr, based on the representations of the parties’ counsel.

[28] I find that on an interim basis, the costs of the reunification counselling shall be shared as a section 7 expense, in proportion to the parties’ respective incomes. Mr. Miller will, therefore, pay 70% of the cost, and Ms. Miller shall pay 30% of the cost, after taking into account any insurance reimbursements through Mr. Miller’s benefits, if available[^1]. This is without prejudice to the determination of the parties’ respective incomes at trial, including Mr. Miller’s arguments that additional income should be imputed to Ms. Miller, and any retroactive adjustment for how this expense should have been shared, to be determined by the trial judge.

Other Matters

[29] This matter needs to proceed to trial. I add this matter to the next available trial list in Ottawa, being the January 2020 trial list. Counsel advised that they would be ready for trial if this matter were able to proceed as part of the November, 2019 trial sittings. If the Court can add the matter to that trial sitting, counsel will be advised before September 17, 2019.

[30] The parties shall schedule a further date before me for September of 2019, at 9 am if needed, to complete the Trial Scheduling Endorsement Form (TSEF). Each party shall exchange

their draft TSEF at least seven days before the appearance and counsel shall attempt to agree on all issues in the form. Each party shall file a completed TSEF with the court with their confirmation forms.

Disposition

[31] For the above reasons, I order the following:

a. Mr. Miller shall have access to S. every Wednesday, from after school (being approximately 3 or 3:30 p.m.) to 6:30 p.m. Mr. Miller shall be responsible for picking S. up from school, and returning her to the exchange location at Kelsey’s parking lot at Kanata Centrum.

b. Mr. Miller shall have interim access to both E. and S. on Sundays for visits of up to three-hours, to be extended for longer periods if access improves. The exchange location shall be Kelsey’s parking lot at Kanata Centrum. This access shall be reviewed and adjusted as reunification counselling progresses.

c. E. shall immediately return to counselling with Ms. Prolas, conditional on Ms. Prolas agreeing to provide such counselling on a private retainer. The cost of such counselling shall be shared as a section 7 expenses, in the same manner as the reunification counselling. This order shall be communicated to Ms. Prolas by counsel for the Applicant and the Respondent, together, optimally by phone or in person, so that Ms. Prolas can confirm to both at the same time if she is willing to agree to provide this counselling.

d. On consent,

i. The parties shall retain a reunification counsellor to engage in reunification counselling between the children and Mr. Miller.

ii. Ms. Miller shall participate in the reunification counselling if required by the reunification counsellor.

iii. The parties shall comply with the recommendations made by the reunification counsellor.

iv. Ms. Miller shall encourage the children’s meaningful participation in reunification counselling and ensure they attend the counselling.

v. The parties shall first use whatever insurance and subsidies are available to them to cover the initial cost of the counselling. If a referral or other documentation is required to access the insurance or subsidies, the parties shall cooperate to ensure whatever is required is obtained.

vi. After all subsidies and insurance have been exhausted, the remaining cost shall be shared between the parties in a proportion to be determined by this court, as set out below.

vii. The children may be picked up from their school by Mr. Miller for his scheduled parenting time. Otherwise, whenever they are not in school, pick-ups and drop-offs shall occur at the Kelsey’s parking lot at Kanata Centrum.

e. The parties use Kelly Savage to provide reunification counselling if she is willing to do so. This reunification counselling shall commence on an immediate basis, as on as possible.

f. On an interim basis, the costs of the reunification counselling shall be shared as a section 7 expense, in proportion to the parties’ respective incomes. Mr. Miller will, therefore, pay 70% of the cost, and Ms. Miller shall pay 30% of the cost, after taking into account any insurance reimbursements through Mr. Miller’s benefits, if available. This is without prejudice to the determination of the parties’ respective incomes at trial, including Mr. Miller’s arguments that additional income should be imputed to Ms. Miller, and any retroactive adjustment for how this expense should have been shared, to be determined by the trial judge.

g. This matter is added to the next available trial list in Ottawa, being the January 2020 trial list. If the Court can add the matter to that trial sitting, counsel will be advised before September 17, 2019.

h. The parties shall schedule a further date before me for September of 2019, at 9 am if needed, to complete the Trial Scheduling Endorsement Form (TSEF). Each party shall exchange their draft TSEF at least seven days before the appearance and counsel shall attempt to agree on all issues in the form. Each party shall file a completed TSEF with the court with their confirmation forms.

i. If there are issues regarding compliance with this Order, this may be brought back before me as a motion on an urgent basis, or, if I am not available, before another Judge.

Costs

[32] If the parties are unable to agree on the costs of this motion, Mr. Miller may file submissions concerning costs on or before August 30, 2019. Ms. Miller may file submissions concerning costs on or before September 13, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

Justice P. MacEachern

Date: August 2, 2019

COURT FILE NO.: FC-17-1670

DATE: 2019/08/02

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Roberta Miller, Applicant

-and-

Charles Scott Alexander Miller, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Odette Rwigamba for the Applicant

Alison Southern for the Respondent

ENDORSEMENT

Justice P. MacEachern

Released: August 2, 2019

[^1]: Ms. Miller states she does not have any insurance coverage