Masci v.Slobodzian, 2019 ONSC 4954

COURT FILE NO.: FC-09-3153-1

DATE: 2019/08/22

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Helen Masci, Applicant

AND

Phillip Slobodzian, Respondent

BEFORE: D. Summers J.

COUNSEL: David Howard, for the Applicant

Aaron Heard, for the Respondent

HEARD: June 20, 2019

ENDORSEMENT

Overview

1The respondent father seeks temporary unsupervised access to the parties’ 10 year old son, Ryan, on alternate weekends. He also asks for an order permitting him to contact the child’s service providers directly. The respondent moves for this relief under the Children’s Law Reform Act, R.S.O. 1990, C. c.12 within the context of his motion to change the final order of Justice Polowin dated September 13, 2012. Her order provides sole custody to the applicant mother and supervised access.

2The applicant mother opposes the motion.

3For the reasons below, I make the following order:

1. I dismiss the respondent’s request for interim unsupervised access on alternate weekends.

2. Supervised access shall resume for 4 hours on either Saturday or Sunday during alternate weekends with the assistance of one or both of the respondent’s brothers, if they agree. Access may be exercised in the brother’s home or in the community.

3. Pick up and drop off shall take place at Family Service Ottawa Supervised Access Centre or such other location as the parties may agree.

4. The respondent shall be permitted to speak directly to Ryan’s service providers including his teachers and health care professionals.

5. The applicant shall arrange for Ryan’s counsellor to work with him in relation to access and, in particular, his recent refusal to attend access with the respondent. The applicant shall not sit in on any counselling sessions that address access.

6. The assistance of the Office of the Children’s Lawyer is requested to investigate and report to the court with recommendations on all matters concerning access to the child and the child’s support and education.

7. I shall remained seized of this matter.

Material Change in Circumstances

4Both counsel referred me to Justice Granger’s decision in Swan v. Swan, [2002] O.J. No. 1804 (S.C.J.) regarding the court’s jurisdiction to vary a final order on an interim basis. In that case, Granger J. granted leave to appeal an interim variation order on the grounds that the motion judge did not make a finding of a material change in circumstance before granting the interim variation. The conflicting case law on point was Granger J.’s earlier decision in Crawford v. Dixon, 2001 CanLII 28121 (ON SC), [2001] O.J. No. 466 (S.C.J.) where he states:

[19] … the jurisdiction to make an interim Order must be found within the Children's Law Reform Act. Section 29 of the Children's Law Reform Act involves a two-step process, although the findings may be intertwined. Firstly, there must be a determination that there has been a material change in circumstances which requires the existing Order to be changed. The second step is to determine the appropriate Order that will address the changed circumstances. In some applications, the determination of the material change in circumstances and any necessary change in the custody and/or access Order, can await a trial if required. In these cases, the determination of a material change in circumstances and the appropriate Order can be made at the same time. In other applications, the facts may mandate an early determination or summary determination of the issue of a material change in circumstances. If such a material change is found, the determination of the appropriate custody and/or access Order may in fairness to the child and parents, have to await a trial. In such circumstances, there is jurisdiction pursuant to s.29 of the Children's Law Reform Act to make an interim custody and/or access Order pending the trial.

5The Divisional Court in Swan allowed the appeal and agreed with Justice Granger’s reasons. See 2002 CanLII 78075 (ON SCDC), 27 R.F.L. (5^th) 449, (Ont.S.C.J., Div.Ct).

6Here, I am satisfied that there has been a change in circumstance since the final order of Polowin J. that affects, or may, affect Ryan’s best interests. Included in her order are a number of provisions that are clearly directed toward an ongoing access relationship between the child and his father. The fact that that access did not occur for many years, then did occur for approximately 18 months, and then abruptly stopped again when Ryan refused to attend is, in my view, a material change from what was contemplated or taken into account by Polowin J. in her order. It is a change that impacts Ryan’s best interests. Having found that change, I agree with Granger J.’s reasoning that the initial finding of a material change may be relevant to the ultimate question to be answered at the final determination – and that is whether the change requires a variation and if so, what that change should be. I will, therefore, remained seized of this matter.

7I am not, however, persuaded that unsupervised access on alternate weekends is in Ryan’s best interests at this time. Nor am I persuaded that suspending access is Ryan’s best interests. Whether either order is warranted is more appropriately made at the final determination. My focus here must be on Ryan’s best interests in the short term, between now and then. I find that goal is met by making the necessary modifications to Justice Polowin’s order to facilitate supervised access and Ryan’s relationship with his father in the current circumstances.

Access since 2012

8Ryan was born April 2, 2009. Notwithstanding Justice Polowin’s order for supervised access, the respondent did not see his son between 2012 and 2017. Each party blames the other for the fact that access did not happen. At this stage of the proceeding, it is not necessary for me to determine who bears responsibility for the absence of access.

9The respondent commenced this motion to change in 2016. At the case conference on March 7, 2017, Master Fortier made an interim, without prejudice order on consent that the respondent would have supervised access at the Supervised Access Centre. Due to the length of the Centre’s waiting list, the respondent's first two hour visit with Ryan took place October 22, 2017. With few exceptions, access continued every two weeks until Ryan began refusing visits. After three consecutive refusals in the spring of 2019, the supervised access program terminated their involvement. It is their policy not to force access.

10According to the Centre, the first of Ryan’s consecutive refusals was March 24, 2019. The respondent has not seen Ryan since.

The Positions of the Parties

11The respondent says that much time has passed since Justice Polowin’s order in 2012. Not only is Ryan older now, he says that he too has changed. He claims he is not the person he once was.

12The respondent says that despite the 4 ½ year period when he and Ryan did not have contact, there is still a bond between them. He says their access visits were positive and claims that Ryan’s refusals only began after the settlement conference on April 1, 2019 when he made it known that he intended to seek additional access. He believes the applicant exerted her influence over Ryan and that is what caused his sudden opposition to access. This is speculation only.

13The respondent further posits that Ryan’s behaviour may be attributable to an awareness that he is once again in the middle of the litigation between his parents. He agrees with the applicant that Ryan is a sensitive child and points out that there were no court appearances during the period when access was going well.

14In addition to being opposed to a material change in circumstances finding, the applicant says there is no evidence that the respondent has changed and although Ryan is older, he struggles with his emotional health. She says unsupervised access as proposed by the respondent should not happen at this time and if any change is made, it should be to suspend all visits until the reason for Ryan’s refusal is known. If access resumes, she says it must be in a safe environment and acknowledges that either of the respondent’s brothers, Gerry or Paul, would be acceptable supervisors. It is not known if they agree. She says they have been unwilling in the past.

15The applicant states that she has no wish to undermine a relationship between Ryan and his father. On the contrary, she says that after access started in 2017, there were many times she had to encourage and convince Ryan to attend before his outright refusals began. She also claims that he began rejecting access prior to the settlement conference and not after. Ryan will not tell her why he does not want to go. The applicant says she wants her son to know his father but argues that it is in Ryan’s best interest to suspend access while he attends counselling and the reason for his refusal is determined.

Ryan’s Best Interests

16The child’s best interests is the only test to be applied in custody and access matters. It is a test that is specific to the individual child before the court.

17At 10 years of age, Ryan has a number of challenges. In 2017, he had a psycho-educational assessment that was followed up with two auditory evaluations - one in 2017 and one in 2018. Although his hearing is in the normal range, it was recommended that he wear a personal FM system to assist him with some specific auditory challenges – especially in school. Ryan also saw an occupational therapist. Her report was released in 2018 and recommended therapeutic sessions to address sensory avoidance challenges and possible primitive reflex retention that affects his ability to interact and maintain a calm sense of awareness. There was no indication whether follow up sessions were held.

18Ryan also experiences anxiety and panic attacks. He has had seven sessions with a counsellor at the Jewish Family Services since November, 2018 relating to his worries and shyness in social settings, his concern about perfection, and his occasional tendency to shut down and stop talking. The plan is for him to continue in therapy.

19Although the applicant’s evidence indicates that Ryan is receiving counselling in relation to his difficulty with access, the counsellor’s letter of June 6, 2019 does not say that. During argument, counsel for the applicant indicated her willingness to ask Ryan’s counsellor for help on this issue. I make that order but require that Ryan’s appointments with his counsellor regarding access be separate from his other appointments. The evidence indicates that the applicant sits in on Ryan’s appointments. Should it be the case that Ryan feels caught in the middle between his parents, he needs an environment where he can speak freely to his counsellor.

20I am satisfied that the visits between Ryan and his father at the Supervised Access Centre were positive. The respondent filed the workers’ notes for the period between October 22, 2017 and November, 2018. Overall, the notes bear this out. The one exception was September 9, 2018 when Ryan refused to participate. Otherwise, the notes indicate spontaneous greetings between the father and child and over time, mutual expressions of affection when the visit was over.

21The applicant fairly points out that the notes do not tell the whole story; they do not capture what she experienced just getting Ryan to the access appointments and through the door. She says his resistance began in June 2018. She reports him saying, “I’m done” and “I don’t want to go anymore.” The applicant said that she countered his resistance by coaxing and encouraging him, and when that failed, by threatening punishment with extra household chores or withholding computer time.

22In my view, these two scenarios are not mutually exclusive. It may well be that the steps required to get Ryan to the access visit were challenging but once there, the evidence indicates that he enjoyed the time with his father. What I regard as important at this juncture is determining the reason for Ryan’s outright refusal to participate in access while at the same time putting in place arrangements that will allow supervised access to continue. With access in a more natural setting, the hope is that Ryan will participate and continue building a relationship with his father.

23While I am optimistic that Ryan’s counsellor can be of assistance in determining why he refused access, I regard this as a case that would benefit significantly from a clinical investigation by the Office of the Children’s Lawyer. The history between the parties includes allegations of domestic violence and the involvement of the Children’s Aid Society that resulted in the order of Polowin J. There is also considerable complexity to Ryan’s current needs and determining what access arrangements are in his longer term best interests. In this regard, I am mindful that supervised access is not a long term solution to Ryan’s needs.

24With respect to the respondent’s request for unsupervised access at his mother’s farm in Renfrew, Ontario, where he lives, there are a number of factors that indicate this change is not appropriate at this time. In addition to Ryan’s health issues and the need to understand his recent refusal to participate in access, he has never spent more than 2 hours every other week with his father and always in a supervised setting. Based on the record before me, I find that it would be contrary to Ryan’s best interests to move from that limited interaction to overnight weekend access in an unfamiliar location even if there was a period of gradual reintroduction to his father. Moreover, there is no evidence that his mother’s home is a safe and appropriate location for access or whether there is a bedroom for Ryan.

25A custody and access assessment was completed by the Family Court Clinic in 2012 shortly before Justice Polowin’s order. The report recommended supervised access and indicated a number of concerns. The concerns included the respondent’s profile that was suggestive of a possible personality disorder and the possible fallout from his fraud convictions that was seen a posing a risk of harm to Ryan. It appears that the respondent was involved in similar activities again in 2017 – a development that calls for further investigation in relation to the possible impact on Ryan. These recent convictions suggest that the respondent may not be the changed person he claims to be.

26The respondent proposes his two brothers, Gerry and Paul, and his girlfriend as possible supervisors for access in the community. None of these individuals provided any evidence to the court regarding their suitability or willingness to accept this responsibility, however, the applicant acknowledges that either brother would be acceptable to her.

27I find that it is in Ryan’s best interest that supervised access resume as soon as possible. Access is to be supervised by one or both of the respondent’s brothers if they agree to be involved. Access shall take place on alternate weekends on either Saturday or Sunday and be exercised in the community or at the home of the supervisor for 4 hours. The day and time of each access visit shall be determined by the supervisor in consultation with the applicant and respondent. There is a restraining order that prohibits the respondent from attending the applicant’s residence, therefore, the pick-up and drop off for access shall take place at the Supervised Access Centre unless the access supervisor is prepared to do it at the applicant’s home.

28If the parties are unable to resolve the issue of costs, the respondent, as the moving party, shall provide me with his cost submissions within 10 days. The applicant shall have 10 days after that to provide her cost submissions. Submissions are not to exceed 2 pages in length exclusive of Bills of Costs and Offers to Settle. If submissions are not received within this time frame, the issue will be deemed settled.

D. Summers J.

Date: August 22, 2019

COURT FILE NO.: FC-09-3153 -1