COURT FILE NO.: 41901/19

DATE: 2019-11-25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MC

Applicant

– and –

MAC

Respondent

Kathryn Smithen, for the Applicant

Harold Niman and Christopher Mamo, for the Respondent

HEARD: October 10, 2019

Kurz J.

Overview

1This is a motion by the Respondent father (“the father”) to vary the temporary access terms of the Order of Coats J. of May 6, 2019. The father seeks to increase his parenting time with the parties’ two children, TC, born […], 2003, and JC, born […], 2008 (collectively “the children”). The father seeks to do so through an order that:

a) Lifts any restrictions on his communications with the children;

b) Increases his currently limited parenting time with the children;

c) Allows him the discretion to determine the location of his parenting time;

d) Requires the Respondent mother, (“the mother”) to consult with him before incurring any special or extraordinary expenses for the children;

e) Requires the mother to provide him with information relating to the children’s activities in advance of the activities; and

f) Requires the mother to obtain his consent before travelling out of the country with the children.

2The mother opposes the part of the father’s motion that seeks to increase his contact with the children. She says that TC, who turned 16 since the time of the last access order, should not be forced to attend any access against her wishes. She does not oppose greater consultation and information sharing. The mother brought a cross-motion of her own regarding third-party disclosure, returnable on the same day as this motion. But because the hearing of that motion would have put the time for the hearing of the two motions well over the one-hour time limit for regular motions, it was adjourned on consent to November 27, 2019.

3Much of the background to this motion turns on highly contested abuse allegations. The mother alleges that the father has a long history of physically and verbally abusing her in the presence of the children. She adds that he has also verbally abused JC. For those reasons, she seeks to limit the father’s contact with the children in a manner that she considers to be safe and secure for them.

4The children have strong views on these events and their access to their father, which generally align with those of the mother. The father questions the independence of the children’s views and preferences.

5For this motion, those issues must be considered within the overall lens of the children’s ages and their best interests regarding their future contact with their father. In essence, I must ask myself, in light of the contested history of this family, the children’s ages and their expressed views and preferences, whether it is in their best interests to expand the father’s access. Regarding 16-year-old TC, I must also ask whether I should use a court order to require her to attend any access against her will.

6This highly acrimonious proceeding began in January 2019. On January 18, 2019 Conlan J. of this court issued an ex parte order. That order grants the mother temporary without prejudice custody of the children and a restraining order against the father. The restraining order prohibited the father from having contact with either the mother or the children.

7Conlan J. granted his order after the mother alleged that she and the children had endured a long history of physical and verbal domestic violence from the father. She asserted that the children had witnessed and been affected by much of the father’s physical violence and verbal abuse against her. She added that the verbal abuse also included their son, JC. She claimed that the father had abused and threatened JC, particularly when he was unhappy with the child’s sporting performance. She added that she and the children fear him.

8The mother pointed out that the father was convicted of uttering death threats to her in 2000, for which he received a suspended sentence and probation. She also pointed to a 1997 letter in which he implicitly admits assaulting her.

9Upon the return of the ex parte motion, Gibson J. was faced with what he described in his January 31, 2019 endorsement as a “blizzard of affidavits and case law”. The father denied that he is abusive. He claimed instead that the mother had attempted to exclude him from the children’s lives, particularly since their separation. He pointed to his deep involvement in the children’s private school as well as his role as JC’s coach in several sports. He asserted that any views and preferences of the children against contact with him are the result of coaching or alienation.

10Faced with the diametrically opposed allegations in the voluminous materials before him, Gibson J. wrote of the difficulties that a motions judge faces in making “accurate and definitive findings of fact” in the face of such untested materials. Ultimately, he chose not to set aside Conlan J.’s ex parte order. Rather he varied it by making a without prejudice order on the following terms:

1. Granting the mother temporary sole custody of the children;

2. Granting a restraining order, prohibiting the father from annoying, molesting or harassing the mother;

3. Prohibiting the father from having any contact with the children, other than in accord with his order;

4. Granting the father unsupervised access for two hours every Thursday at the Oakville Club, with the mother responsible for the children’s transportation to and from that venue;

5. Restraining the father from attending at the matrimonial home or the home of one of her relatives in Markham, Ontario;

6. Allowing the father to attend at the children’s activities, provided that he gives the mother 12-hours’ notice and that he not speak to the children during those activities;

7. Prohibiting either parent from discussing the litigation with the children or allowing anyone but child protection authorities to do so.

11On April 4, 2019 I ordered that Dr. Michael Saini conduct a private Voice of the Child report regarding the children. Dr. Saini is a respected associate professor of social work at the University of Toronto.

12On April 26, 2019, Coats J. heard the return of the motion regarding the parties’ parenting issues. Before the argument of the motion began that day, the parties agreed to an order that they participate in the Families Moving Forward therapeutic programme. They agreed to enter the programme in order to work towards “stepped up access” and an increase in the father’s communication with the children. They also agreed to vary Gibson J.’s order to allow the parties to communicate through Our Family Wizard to permit the father to attend at any of the children’s activities without notice. During those activities, the father may communicate with the children. It was left to Coats J. to determine the limits to that communication, as they were to unable to do so.

13The main issue left for Coats J. to determine was the interim access arrangements pending the completion of the Families Moving Forward programme. Amidst many contested allegations she heard, Coats J. noted three uncontroverted facts in her endorsement of May 6, 2016:

1. The father hand-wrote a note to the mother dated July 20, 1997, stating that “I will never hit my sweetie again, so help me God … I am gravely sorry. If I do it again I will call the police and I am truly sorry.” He added that he would leave the home if he ever did so again.

2. The father pled guilty to a charge of uttering a death threat to the mother. Although Coats J. does not say so in her endorsement, that plea occurred in 2000.

3. The mother commenced a divorce proceeding in 2004. An ex parte order was made in that proceeding on August 4, 2004. I note that the parties’ oldest child, TC, was less than a year old at the time. JC would not be born for over four years. The parties ultimately reconciled.

14Coats J. found that the father’s access should be increased pending completion of the programme. But she found that it should not be increased to the level he desired. Coats J. granted the father access to the children each Tuesday and Thursday from 4:00 to 8:00 p.m., as well as every other Saturday and Sunday from 9:00 a.m. to 7:00 p.m.

15Coats J. pointed to the following factors that favoured a moderate increase in the access between the father and the children:

1. The without prejudice nature of the Gibson J. order;

2. The parents had committed to the Families Moving Forward clinical intake consultation programme. A moderate increase in the father’s parenting time would demonstrate that commitment and be a step towards normalizing the father/children relationship;

3. The mother swore at para. 137 of her April 12, 2019 affidavit that she favours an expansion of the father’s time with the children. She swore that she is “…in favour of continually expanded access provided that it can be carried out in a safe and supportive fashion.” However, she warned about the father’s “manipulative behaviours” towards the children.

4. The mother’s previous position in favour of an incremental increase in access was reflected in two notices of motion that she had filed with the court.

16Coats J. also considered the Voice of the Child report by Dr. Saini, who reported that:

1. Both parents agree that their conflict, abuse allegations and separation have been “extremely traumatic” to the children. They both want the children to have healthy relationships with each of them;

2. TC said that she does not feel safe with the father, that she is afraid that he will hurt her. She wants the judge to make sure that the time she spends with her father is safe. She also told Dr. Saini that she felt that her father was trying to buy her affection;

3. JC told Dr. Saini that he does not want to see his father at all and does not feel safe with him behind closed doors. He indicated that he does not want his father to do bad things to his mother again.

4. Both children reported that they are afraid to be open with their father regarding their feelings about their parents’ conflict. That is because they fear that he would take his anger out on their mother.

5. The children reported witnessing or participating in five specific abusive incidents during the approximately eight months leading to the parties’ separation. In three of those incidents, the father physically assaulted the mother. The children recounted that he twice punched their mother and once pushed her down the hall, leading her to bang her head. In one verbal argument, their father threatened to kill himself. In August 2018, the father threatened to spank JC because of his “dog shit” play during a hockey try-out.

17Dr. Saini concluded that:

It is clear from the children’s statements that they have expressed clear and decisive depictions of the incidents of intimate partner violence that have led to their current strained relationship with their father (e.g. recalling of specific dates, consistency of depictions of events, expressed fear of their father). It is also clear that the mother has talked with the children about these incidents and her feelings of victimization by the father. It is also clear that the children have expressed feelings of needing to feel safe and for their mother to also be safe and free from harm.

While the children have expressed speaking with their mother about these incidents and it is clear that these conversations have taken place, there is no suggestion from the children’s accounts that they have been coached by their mother to present a specific narrative of the events. It is clear that the exposure to intimate partner violence (both parents allege the other of being abusive), has had a detrimental effect on the children and it is plausible that the children have formed their own interpretations of the events and the source of blame for those altercations. However, given the limitations of the Voice of the Child report, a thorough and comprehensive assessment of the causes for the children’s current resistance of their father cannot be determined on these interviews alone.

18The mother told Coats J. that reading Dr. Saini’s Voice of the Child report led her to withdraw her support for an increase in the father’s access. She was very concerned by what the children told Dr. Saini.

19Coats J. was very alert to the fact that there is still a substantial dispute regarding the abuse allegations. That is the case even though the children’s comments to Dr. Saini appear to corroborate the mother’s narrative. Coats J. cites Dr. Saini’s observation that there can be many reasons for the children’s resistance to contact with their father, including:

• exposure to intimate partner violence;

• psychological harm arising from the failure to protect them from exposure to intense parental conflict;

• their experience of trauma arising from exposure to partner violence and conflict;

• the mother’s open conversation with the children about the events between herself and the father;

• The father’s lack of sensitivity to the children’s concerns, fears and worries;

• The children feeling caught in their parents’ conflict and feeling the need to take sides;

• The children’s desire to protect their mother from future harm.

20Despite the relative superficiality of his mandate in conducting a Voice of the Child report rather than a full parenting assessment, one thing was clear to Dr. Saini. The children’s involuntary involvement in their parents’ conflict had a significant impact on them. As set out above, both children reported observing their father physically and verbally abuse their mother. In addition, JC told Dr. Saini that his father had been verbally abusive to him. TC made no similar claim of abuse. Instead, she complained to Dr. Saini both that she witnessed the abuse of her mother and that she had been placed in the role of “referee”, separating her parents during their fights.

21In considering all of those facts, Coats J. felt that the appropriate approach to access at that time was a “therapeutic” one. That approach called for a degree of caution in increasing access until therapy through the Families Moving Forward programme could begin to work. The arrangements that Coats J. felt would allow access to be carried out in “a safe and supportive fashion” were as follows:

1. Access shall be two hours, unsupervised, every Tuesday and Thursday from 4:30 – 6:30 p.m. at the Oakville Club.

2. The location of the access can be changed if the parents agree otherwise. Coats J. encouraged them to do just that;

3. The children are not to be removed from the access location without the mother’s advance written agreement;

4. The mother is to transport the children to and from access;

5. The father is entitled to make-up access if the children miss a visit due to illness or their participation in an activity in which the father is not entitled to attend (such as a school trip, school dance, etc.).

6. The following terms in the Gibson J. order shall remain in effect:

a) Granting the mother temporary sole custody of the children;

b) The order restraining the father from attending at the matrimonial home or the home of one of her relatives in Markham;

c) Neither parent to discuss the litigation with the children or allow anyone but child protection authorities to do so.

22As the parties were unable to agree, Coats J imposed the following terms regarding the father’s communication with the children:

1. When the father attends at one of the children’s activities, his communications with the child/ren shall not take place in a locker room or bathroom. This term is intended to respond to JC’s concern about contact with his father behind closed doors.

2. The father may send one email per week to the children, of not more than one page, to each child at his or her email address.

3. The father may respond to any communication received from the children in the form in which it was received. Otherwise there shall be no electronic communication with the children, other than as above.

23On September 26, 2019, this motion was adjourned over to October 10, 2019, to be argued as a “59-minute” motion. In other words, it was a long motion argued in the time available for a regular motion. The parties consented to the order of Conlan J. that pending the return of the motion:

1. The mother shall not travel outside of the country with the children without the father’s written consent; such consent not to be unreasonably withheld;

2. The mother shall not change the children’s school without the father’s consent. All parental consents regarding the children’s school activities shall be signed by both parents;

3. The mother shall not to make any major decisions regarding JC’s hockey without the father’s written consent. Those major decisions include registering or enrolling him on a new team; registering, enrolling or taking him to a new training or coaching session on or off the ice; or taking him to a try-out or skate for a team, trainer or coach.

4. The mother shall, on a go-forward basis, provide the father with information, schedules, documentation and records pertaining to the children’s extra-curricular activities, school, doctor and dentist. The mother shall ensure that the father is provided with the children’s extra-curricular schedule and notification of [any] medical or dental appointment in advance of the scheduled activity or appointment. If applicable, the mother shall cause a third party to provide all necessary information.

5. The mother shall not enroll the children in any activity or incur any special or extraordinary expense for which she is seeking reimbursement without the father’s written consent. Such consent shall not be unreasonably withheld.

Parents’ Positions in this Motion

The Father’s Position

24The father denies being abusive to the mother and JC. But he admits that the children have observed family violence and that they have been traumatized by it. The father portrays himself as the victim of the wife’s campaign to alienate the children from him, based on the false notion that he is a violent person. In his September 18, 2019 affidavit, he swore at para. 6 (a) and (b) that:

a) [The mother] has embarked on a campaign of alienation and attempted to ingrain inaccurate thoughts in the children that I am violent, aggressive and at fault. [The mother] constantly repeats that I have done something wrong and that is why my time is restricted, which is what the children have expressed to me on numerous occasions. … [The mother] cannot control her animosity towards me or control herself from doing or saying all she can to shape their perception of me.

b) In addition to restricting my parenting time with the children, [the mother] has attempted to build on this negative perception by preventing me from having basic interactions with the children, such as: refusing to allow me to drive with the children, not permitting me to communicate with the children by phone or text; not permitting me to speak to [JC] in the hallways or locker rooms at his activities; and restricting me from having parenting time with the children anywhere other than a public restaurant.

25It is worthy of note that the father failed to answer two pertinent questions in his intake form for Dr. Saini’s Voice of the Child process. The father did not respond to questions regarding either incidents of domestic violence or whether he had ever participated in a domestic violence/anger management programme.

26The father argues that much of the relief that he seeks in this motion is “basic”, such as consultation before changing the children’s schools. The father had to learn about a potential school change directly from the children.

27The father continues, stating that this proceeding began with an ex parte motion whose result was the severe restriction on his contact with the children. But in his view, those restrictions are not meant to be indefinite. They have been very gradually reduced. He feels that the restrictions on his contact are no longer necessary. The father alleges, without independent confirmation, that the children have told him that they wish to text him. But they say that their mother would not allow it.

28Coats J.’s order restricts the father’s parenting time with the children to the Oakville Club unless the parents agree otherwise., The mother has agreed to some changes, but still restricts the visits to public places. The father finds this setting to be artificial, preventing him from having a normalized relationship with the children.

29The father complains that the mother acts unilaterally regarding the children’s activities. In doing so, she excludes him from his former role as at least equal decision maker about the children’s activities. She now arranges or changes them without consulting with him but then expects him to pay for them. He does not object to paying reasonable expenses but argues that he should be consulted before his is required to do so.

30The father is particularly critical of the mother’s unilateral decision to allow JC to change hockey teams from one in Oakville to one in Toronto. JC plays at the high end, “AAA” level. He had been on the same team for four years. The father was closely involved in JC’s hockey career, often coaching him. The father said that he “… was the primary, or at least equal, parent when it came to extra-curricular decisions surrounding extra-curricular activities.” Yet after the separation, the mother took JC to tryouts and then allowed him to sign with a Toronto team without first advising, let alone consulting with the father. The father’s only notice came in a lawyer’s letter, sent after the fact.

31The father says that JC’s hockey is vitally important to the child. He feels that the method by which she made the decision to switch JC’s team is emblematic of the way the mother seeks to exclude him from the children’s lives. I should note that Dr. Saini’s report shows that JC told him that he wanted to change teams. The father tried to talk him out of that choice.

32The father points out that the Families Moving Forward programme’s intake process is now complete. He adds that Dr. Shely Polak, a Doctor of Social Work and one of the principals of the Families Moving Forward programme, recommended that the parties all engage in individual counselling. He says that he engaged in a counsellor for himself but that the mother has not found a counsellor for herself or the children.

33The father argues that the orders restricting his contact with the children have been in place since January 2019. He feels that his access with the children has gone well. As the orders of Coats J. and Gibson J. are expressly made without prejudice, he need not prove a material change in circumstances. Further, in making parenting decisions, the court must give close consideration to the maximum contact principle set out in s. 16(10) of the Divorce Act. Thus, he says that it is time to expand his time and contact with the children.

34The father further argues that the present access arrangements give the children the wrong “message”. The message that should be communicated to them is that their father is an important part of their lives. The failure to provide that message is particularly apposite in the face of the mother’s perceived lack of support for his relationship with the children.

35The father also argues that I should not rely on TC’s age. He feels that she will obey whatever order I make, despite the fact that his daughter is now over 16 years of age. She was still 15 when Coats J. made her order.

The Mother’s Position

36The mother states that her position remains one of concern for the effect of the father’s past and fear for his future conduct towards the children. She feels that the safety concerns for herself and the children remain unchanged.

37The mother seeks two modes of relief in this motion:

1. At age 16, TC not be ordered to engage in any access that she is not comfortable with, and

2. That the children’s parenting time with the father “… continue to have appropriate safeguards in place so that the children can gradually increase their time with [the father] subject to how he conducts himself in their presence”;

38The mother spends much of her responding affidavit repeating what she says the father says about her. That repetition offers the court little assistance, as the father is able to articulate his concerns on his own.

39The mother answers the father’s concerns as follows:

1. She restricts the father from driving with the children because he has sleep apnea. She does not say how the sleep apnea is connected to his driving.

2. She is willing to be flexible about the place of the father’s meetings with the children, naming five restaurants in which those meetings have already taken place;

3. The children are busy teenagers. They have busy schedules to accommodate in planning the long commute between their schools and parenting time in Woodbridge.

4. The father’s contact with the children is not limited to the two two-hour dinner time visits. He attends most of JC’s hockey practices. Because of his attendance at their activities, the father sees the children up to five times per week. At the end of the practices, she allows JC to speak to the father rather than usher him out of the arena (as he claimed).

5. Both children have mobile phones and can call their father if they wish.

6. The children have complained to her that their father interrogates them with questions during their dinners and tells them to listen to no one but him. This upsets them.

7. The father falsely blames her for Dr. Polak’s decision not to accept their case for the Families Moving Forward multi-day family intervention programme. He blames that decision on her statement that they do not communicate well when in fact he had previously said the same thing. In any event, he ignores the serious concerns that Dr. Polak raises, which are the real reasons that she does not feel that her programme is suitable for this family. I will have more to say about this when I review Dr. Polak’s comments and recommendations below.

8. In essence, the mother argues that the father “does not get it” about his abusive behaviour and its traumatic effect on the children. That is, he has failed to take responsibility for the fact that it is his behaviour that has caused the children to fear him and to be reluctant to have greater contact with him.

9. The mother says that she is willing to follow Dr. Polak’s, recommendations, which are set out below, but requires the financial resources from the father to do so.

Dr. Polak’s Comments and Recommendations

40The parents and Coats J. were optimistic that Dr. Polak’s Families Moving Forward programme would assist the family in moving towards a more normalized separated family relationship. Unfortunately, Dr. Polak felt that the family was not an appropriate candidate for her programme at this time because of the abuse and trauma that they have experienced. She set out her reasons for this conclusion in a report called for under the consent order of Coats J. of April 23, 2019. Under that order, the report was to contain the therapist’s recommendations with respect to the nature and structure of any family therapy and stepped-up parenting schedule.

41In her report, Dr. Polak provides another independent account of the children’s experiences of their parents’ separation and their present state of mind. Admittedly, Dr. Polak’s comments, like those of Dr. Saini, come within a limited context. But taken together with those of Dr. Saini, they represent the only independent evidence available to the court that can assist in making parenting time decisions. As set out below, what is equally important is the fact that much of what Dr. Polak says aligns with the comments made by Dr. Saini, set out above.

42Dr. Polak interviewed both parents twice and had individual and joint interviews with the children on June 17, 2019. Highlights of Dr. Polak’s report include the following:

1. The father denied a pattern of intimate partner violence and coercive control.

2. However, he admitted that “…there was fighting and regrettably, some of the fights resulted in physical altercations between himself and the mother.” On those occasions, in Dr. Polak’s words: “…he resorted to being physical as a means to defend himself”.

3. Both parents agreed that the children were exposed to intense conflict and volatile incidents. Their martial dynamic had a negative effect on the children.

4. The children appeared to be candid during their interviews with Dr. Polak.

5. Among the things that the children told Dr. Polak were that their father told them that the process in which they were engaging was “in an attempt to reconcile the family”. That of course was not the case. The goal of the programme was to help repair the children’s relationship with their father and improve the separated co-parenting relationship among the parents.

6. Each of TC and JC provided Dr. Polak with detailed descriptions of different events that they experienced or were exposed to prior to their parents’ separation. It was evident to Dr. Polak that their exposure to incidents of domestic violence, their parents’ volatile relationship and their own experiences of those events has led to their strained relationship with their father.

7. The children were distressed by their current situation. Discussing the events made both of them, but in particular TC, visibly sad. They recalled their own experiences with their father as well as incidents that they witnessed, all of which they found to be traumatic

8. Each was fearful of their father. Each felt unable to discuss their concerns with him for fear of repercussions to themselves and their mother. Each provided what Dr. Polak described as “… age appropriate concerns with [the father] that they are afraid of sharing with him and the consequences they fear.” Dr. Polak referred to “… yelling/swearing at them, blaming or being physically violent towards their mother for their personal choices”.

9. The children expressed their desire for their father to take accountability for his behaviours and commit to making specific behavioural changes in order to improve the parent-child relationship.

10. Dr. Polak described the two following concerns and risk factors that led to the decision that this family is not appropriate for her programme:

a) An ongoing restraining order prevents the parents from communicating directly with each other, and

b) Both the mother and the children report ongoing fear and safety concerns regarding the father.

43In deciding not to accept this family for her programme, Dr. Polak offered the family the five following recommendations:

1. The children should receive closed individual counselling as soon as possible;

2. The mother should seek individual counselling to help her process her experiences and the stressors associated with the separation;

3. The father should retain a parenting coach to help him develop insight into his parenting style, its potential impact on children and to ensure that his parenting time remains positive;

4. For a period of three months, the family should engage in outpatient family therapy with a qualified therapist with experience and knowledge of areas of high conflict/divorce, domestic violence, parent-child problems, CBT (cognitive behavioural therapy) and family systems. The therapist can spearhead the clinical interventions and work with the counsellors that she has recommended to ensure that the treatment goals are consolidated;

5. The parents should obtain an assessment under s. 30 of the Children’s Law Reform Act to better understand the family concerns and recommend a parenting plan consistent with the children’s best interests.

44The only one of the recommendations that appears to have been taken up to date is that the father has obtained a counsellor. However, the court has been presented with no evidence of the goals of the father’s therapy, whether it aligns with Dr. Polak’s recommendation of a parenting coach, and whether the therapist believes that the father has made any gains in therapy.

45While repeating Dr. Polak’s recommendations, the mother’s only comment about her adherence to them is that she will require resources to pay for the recommended clinical interventions. In other words, she has done nothing to implement them other than say in her affidavit that she needs the funds to do so.

The Law

Best Interests

46My jurisdiction to make an interim access order is found in s. 16(2) of the Divorce Act (“DA”), as it currently stands. Much needed amendments to the DA have received Royal Assent on June 21, 2019 but will not come into effect until June 21, 2020 (https://www.parl.ca/DocumentViewer/en/42-1/bill/C-78/royal-assent). Among other things, that amended statute eliminates the terms “custody” and “access” from the DA’s lexicon. It also sets out specific factors and a primary consideration for determining a child’s best interests. While I am not presently bound by those amendments at this time, I am entitled to consider the amended provisions regarding the determination of best interests of the child in my analysis below. In these reasons, unless specifically indicted, any references to the DA are to the presently applicable version of that statute.

47Under DA s. 16(8), I must make any custody or access order based upon “…the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.” However, unlike its Ontario analogue regarding custody and access decisions, the Children’s Law Reform Act (“CLRA”), the DA does not define the term “best interests of the child…” Rather, as I set out below, the DA specifically points to only two specific factors that a court making a custody and/or access order must consider. They are the irrelevance of past parenting conduct unless the conduct is relevant to the ability to parent a child and the maximum contact principle. I will deal with those two factors in reverse order because the father has made the maximum contact principle a centrepiece of his argument.

The Maximum Contact Principle

48As the Ontario Court of Appeal recently confirmed in Rigillio v Rigillio, 2019 ONCA 548, courts determining custody and access issues must advert to the maximum contact principle set out in s. 16(10) of the Divorce Act. That provision reads as follows:

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[Emphasis added by Ontario Court of Appeal in Rigillio]

49At para. 10 of Rigillio, the appellate court added that any judge who departs from the maximum contact principle must provide reasons for doing so. Implicit in that principle is the notion that those reasons must be in a child’s best interests. In Rigillio, the appeal court overturned a trial decision based on a status quo that had developed as a result of a temporary without prejudice order. The trial judge had found that the child had “loving and strong emotional ties to both parents”. Prior to separation, the parents raised the child “equally” and “effectively”. Further the father’s post-separation conduct was not enough to ignore his contributions to raising the child. Thus, the failure of the trial judge to consider the maximum contact principle was a reversible error in law.

50In Ferreira v. Ferreira, 2015 ONSC 3602, McGee J. invoked the maximum contact principle when she found that the children had unjustifiably rejected their father. In doing so, McGee J. offered her full-throated support for the maximum contact principle, writing:

28 Not only is maximum contact a legal prerogative, it is consistent with children's best outcomes following their parents' separation. Maximum involvement of parents in children's lives after separation is supported by a large body of research on outcomes of divorce for children.

29 To make a child fearful of his or her other parent is a form of child abuse.

30 The combined effect of the legal obligations and the research underscores a presumption that regular access by a non-custodial parent is in the best interests of children.

31 The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 387. The party who seeks to reduce normal access is required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D. 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946.

32 A child's relationship with a non-custodial parent should be interfered with only in demonstrated circumstances of danger to the children's physical or mental well-being: see Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. Ct. (Gen. Div.).

51Despite the court’s finding on the specific facts of each of Rigillio and Ferreira, the wording of the DA s. 16(10) explicitly subordinates the maximum contact principle to the child’s best interests. The principle is to be honoured only to the extent that it is “consistent” with the child’s best interests. That point was emphasised by L’Heureux-Dube J., writing in dissent on the result but not in her analysis of best interests in the seminal Supreme Court of Canada decision, Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.J. No. 112. As L’Heureux-Dube J. wrote, beginning at para. 40:

Thus, it is clear that maximum contact is not an unbridled objective, and that it must be curtailed wherever the welfare of the child requires it. The best interests of the child remain the prism through which all other considerations are refracted.

53 I am in agreement with my colleague that s. 16(10) indicates that Parliament has expressed its opinion that contact with each parent is valuable. On the other hand, it must also be recognized that the goal of maximum contact is not absolute and that access may be restricted where there is evidence that such contact would otherwise conflict with the best interests of the child. This limitation on maximum contact is both abundantly clear on a straightforward reading of the section and consistent with the spirit of the Act and its focus on the best interests of the child. In my view, the analysis may and should stop at this point.

Past Parenting and Domestic Violence

52As set out above, the other provision of the DA that is pertinent to this court‘s considerations is found in s. 16(9), regarding past parenting conduct. Under that provision, the only past parenting conduct that a court making a custody or access order may consider is conduct relevant to the ability of a person to act as a parent. The provision reads:

(9) PAST CONDUCT — In making an Order under this section, the Court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent.

53The same point is explicitly made under s. 24 of CLRA. That provision sets out the primacy of best interests in making decisions about a child’s parenting. CLRA ss. 24(2)-(4) set out factors that a court must consider when determining a child’s best interests.

54Sub-section 24(2) offers the following non-exhaustive list of considerations regarding a child’s best interests:

(2) BEST INTERESTS OF CHILD — The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

55Under CLRA s. 24(3), the past conduct of a parent is only relevant to the court’s parenting determinations to the extent that it “…is otherwise relevant to the person’s ability to act as a parent.”

56Unlike the current version of the DA, the CLRA explicitly deals with domestic violence. Sub-sections 24(4) and (5) of the CLRA read as follows:

(4) PAST CONDUCT — In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

(5) SAME — For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

57As set out above, recent amendments to the DA will offer specific best interests factors for a court to consider. Among those factors is an emphasis on the effect of domestic violence on a child’s best interests. The amended DA directs the court to consider whether a child has experienced or been exposed to domestic violence. The court must also consider whether the family violence causes the child or other family member to fear for their own safety or for that of another person.

58The amended DA also sets out a primary consideration in the determination of a child’s best interests: “… the child’s physical, emotional and psychological safety, security and balancing and well-being.” That primary consideration assists the court in prioritizing and balancing the specific best interests factors set out in the statute. While these amendments are not presently binding on me, they are now enshrined in law. They reflect the current intent of Parliament. I may use them as a tool to consider the importance that I should place on the issue of alleged domestic violence in appropriate cases. They remind me to place an emphasis on each child’s physical, emotional and psychological safety, security and well-being.

59That being said, even a finding of past domestic violence does not end the court’s consideration or always require that the abusive parent have limited contact. Rather, like the maximum contact principle, domestic violence is a significant factor for a court to consider within the context of a broad consideration of a child’s best interests. Not every form of domestic violence is equal nor is every child equally affected by it.

60For example, in Kennedy v. Peters-Kennedy, 2017 ONSC 7296 Madsen J. found that the father had been verbally and in three instances, physically abusive to the mother. One of those instances was “keying” the mother’s car. Two left her with bruises but no long-lasting injuries. The father denied any abuse. Despite her findings confirming the abuse, Madsen J. also found that other factors outweigh the past violence. She found that the violence was historical, having ended at least 3 ½ years earlier.

61What was crucial to Madsen J. was her finding that the mother failed to recognize the importance of the father’s role in the child’s life. The mother demonstrated this failure despite admitting the father’s ability to provide the child with love and guidance, and to meet the child’s needs when she is in his care. Madsen J. ultimately felt that the historical violence should not allow the mother to limit the father’s access, particularly as it had been agreed that she would be the child’s primary caregiver. Madsen J. felt that the father’s historical violence against the mother had been outweighed by the current finding that he “… is a loving and competent parent.”

“Without Prejudice”, the Status Quo, and the Test on this Motion

62Ordinarily, a status quo will be maintained in interim custody and access cases unless there is evidence of a material change in circumstances regarding the child’s best interests. As Bora Laskin J.A., as he then was, put it in Papp v Papp (1970) 1969 CanLII 219 (ON CA), 1 O.R. 331 (O.C.A.):

It may be taken as a working rule that evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits. But, as in custody after trial so in respect of interim custody, the welfare of the children is the paramount consideration; and any difference in the required weight of evidence is a matter of degree and not of kind.

(See also: Madill v. Madill, 2014 ONSC 7227 at para. 31 and Kimpton v. Kimpton, [2002] O.J. No. 5367 (S.C.J.) at para. 1).

63However, as the overriding principle in making parenting decisions is the child’s best interests, there should be no overriding presumption in temporary custody and access cases. As Lane J., sitting in the Divisional Court, wrote in Holt v. Anderson, 2005 CanLII 38583 (ON SCDC), [2005] O.J. No. 4494, at para. 10:

Nor do these cases elevate the maintenance of the status quo into an immutable principle; there must be compelling reasons to vary from it on an interim basis, but where the reasons exist, a variation can be made. The essence of the discretion exercised by a motion judge in a custody and access case is to determine what is in the best interests of the child.

(See also: Batsinda v. Batsinda, 2013 ONSC 7869 at para. 26).

64Several courts have spoken of the status quo for temporary custody and access proceedings as being the one that existed prior to the separation (see e.g. Batsinda at para. 28). It should not be a short-lived arrangement created to gain a tactical advantage (Kimpton at para. 1). Of course, a court order can create a new status quo. Further, whether or not binding, a court must always consider the effect of the pre-existing parenting arrangements on the child’s best interests, whether or not it is a status quo as defined in Batsinda.

65Inasmuch as the temporary orders of Gibson J. and Coats J. were made without prejudice, the test here is not one of a material change in circumstances. Rather, my determination of whether the present access should be increased must be based on my present analysis of the children’s best interests (Ray-Bevington v. Rigden, 2017 ONCJ 602 at para. 29). While Ray-Bevington v. Rigden dealt with a without prejudice order under the Children’s Law Reform Act, the same considerations apply under the Divorce Act.

66In other words, while I cannot ignore the effect on the children of the de jure nine-month “without prejudice” status quo since January 18, 2019, I am not bound by it. I can also consider the pre-separation status quo that saw the father far more involved with the children than he is now. Both Gibson J. and Coats J. anticipated that the matter would be reviewed at some time before trial, when further information becomes available.

67However, as Finlayson J. wrote in Ray-Bevington v. Rigden at para. 31, “… just because a court can make an order with different terms doesn't mean that it should.” Changes should be made only if they meet the child’s best interests.

68Here, if there is evidence now available that points to increased access being in a child’s best interests, I am duty-bound to closely consider it. I must do so whether or not it amounts to a material change in circumstances. On the other hand, if I have no meaningful new information available to me and there has been no appreciable change since the time of the last order, I must ask why I should make any further changes at this time. I should be circumspect before changing the status quo.

69That is not because I am bound by that status quo. Rather, pre-trial change should not be made without a good reason. Children are not concerned with legal definitions of the term “status quo”. Their appreciation of time is different than that of an adult. They should not be asked to change and then change again before being placed at risk of further change at trial unless there is good reason, based on their current best interests, to do so. I add that litigants should not be encouraged to continue to return to court on the same facts, hoping for a different result.

Analysis: Should I Change the Father’s Access and Contact with the Children?

Should I Require TC to Attend at Access Visits Despite her Age?

70In light of the ages of the children, there are really two sets of considerations here, one for each child. The first relates to TC and her age. The only material change since the time of Coats J.’s order of May 6, 2019 is the fact that TC has now turned 16. Her attaining that age has legal significance, as I will allude to below.

71Two very experienced social workers, possessing expertise in high conflict parenting cases, have interviewed the children. Dr. Saini reported on the children’s views and preferences as well as their experiences being caught in the middle of their parents’ volatile relationship. Those experiences clearly inform if not fully explain the children’s views and preferences. Dr. Polak does not specifically report the children’s views and preferences. But her summary of the children’s narratives leaves little doubt that their views and preferences are unchanged. As they did before Dr. Saini, the children were able to articulate their perspective on their experiences and their current distress.

72Further, it is clear from Dr. Polak’s report that the children continue to suffer from the corrosive effects of the parental conflict that they observed, participated in and remained enmeshed within. Dr. Polak wrote of the visible sadness of the children, particularly TC, as they recounted their individual experiences and the trauma they continue to experience from the abusive incidents they observed. TC clearly wishes to wish to limit and control the terms of her contact with her father.

73The father asserts that TC’s views and preferences, as well as those of her brother, are the result of the mother’s alienation of the children from him. If TC’s allegations of having witnessed her father’s abuse of her mother and feeling unsafe in his care (as reported this year by both Dr. Polak and Dr. Saini) are true, she would have some justification for her estrangement from her father.

74During the argument of this motion, I raised the issue of a CLRA s. 30 custody and access assessment. Such an assessment would offer a deeper level of information and insight to the court about both the independence and depth of the children’s views than it presently possesses. Yet the father’s counsel was unwilling to agree to such a process at this time.

75A child’s age is a vitally important consideration in a court’s determination of what parenting arrangements are in a child’s best interests. By the time that a child reaches the age of 16, courts will not normally force the child to live with or have parenting time with a parent against the child’s wishes. That understanding was affirmed by the Ontario Court of Appeal in G. (R.) v. G. (K.), 2017 ONCA 108.

76G. (R.) v. G. (K.) considered the right of a 16-year-old to take the extreme step of declaring herself withdrawn from parental control. By the time of the appeal the child was 17. The child did so after having moved out from her father’s home. She wished to prevent him from using the police to apprehend her and return her to his home. Benotto J.A. wrote the following on behalf of the Ontario Court of Appeal:

A child's right to withdraw from parental control

[43] It has always been a rule of common law that a parent's right to custody will not be enforced against a child's will once the child has reached the "age of discretion": R. v. Greenhill (1836), 4 A. & E. 624, 111 E.R. 922 (K.B.); R. v. Howes (1860), 3 E. & E. 332 (Q.B.). Historically, this meant that the child had the right to withdraw from parental control and the court would not force the child to return to a custodial parent, but would allow the child to live where he or she chose. The age at which [page699] a child has the right to withdraw from parental control is codified in s. 65 of the CLRA [Children’s Law Reform Act]:

Where child is sixteen or more years old

65. Nothing in this Part abrogates the right of a child of sixteen or more years of age to withdraw from parental control.

77Benotto J.A. continued, stating for the court that:

[44] Once a child declares an intention to withdraw from parental control, her independence may -- as it was here -- be recognized by the police and the schools. There is no formal court process for a child to withdraw.

78That being said, Benotto J.A. pointed out at para. 58 and 61 that any decision about a child’s withdrawal from parental control must include a consideration of the circumstances of the withdrawal and the child’s best interests. Benotto J.A. concluded with an admonition about “the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors.”

79In Medjuck v. Medjuck, 2019 ONSC 3254, Kristjanson J. found that there was no need to obtain a Voice of the Child report for a 17-year-old. Citing G. (R.) v. G. (K.), Kristjanson J. wrote:

As a practical matter, the court will likely not make a custody and access order given his age.

80There may conceivably be factors, including a child’s special needs or a clear finding of alienation that may, in some circumstances, ameliorate the practical policy articulated by Kristjanson J. (see for example, [B (SG) v L (SJ)], 2010 ONSC 3717](https://www.canlii.org/en/on/onsc/doc/2010/2010onsc3717/2010onsc3717.html), but see also 2010 ONCA 578, where the stay of that decision was upheld by the Ontario Court of Appeal). Those factors do not apply here. TC is not a special needs child.

The Independence of the Children’s Views and Preferences

81While Dr. Saini found that the mother had spoken to the children about the violent incidents that they had witnessed, he wrote that “…there is no suggestion from the children’s accounts that they have been coached by their mother to present a specific narrative of the events.” He adds that the events that the children witnessed had a detrimental effect on them. It is “plausible” that the children have formed their own interpretations about and assigned blame for the altercations between their parents.

82Dr. Saini went on to directly address the independence of the children’s views and preferences regarding their father. He writes that the issue is a complicated one. The children are “acutely aware” of their parents’ “… dysfunctional family dynamics and the incidents that seem to inform their current views within the family disputes.” Dr. Saini feels that it is “impossible” for this to not to have some impact on the children’s stated views and preferences. Dr. Saini was concerned that those views and preferences would be used to further the litigation rather than protect the children from it.

83Dr. Polak’s impression of the independence of the children’s narratives is similar to that of Dr. Saini, although it is offered in a different context. She wrote of the children’s candour and ability to articulate how their past experiences have led to their “current strained relationship” with their father. She stated that they provided her with “… different examples of age appropriate concerns they are afraid of sharing with [their father] and the consequences they fear ….”

84From the reports of both Dr. Saini and Dr. Polak, it is clear that the children are presently aligned with the mother. But they articulate clear, historical reasons which, if true, explain if not justify that alignment.

85While I cannot make the kind of definitive finding that will be available at trial, I do not doubt that both children have experienced a significant level of trauma arising from their parents’ dysfunctional and violent relationship. Neither parent denies the trauma or that their children have witnessed physical violence between them. Those experiences have clearly had an effect on their current perspectives on the time that they would like to spend with their father and the conditions under which it should occur.

86Thus, I agree with Dr. Saini in saying that I cannot find any clear evidentiary basis to support the father’s claim that the children’s expressed fear and reluctance towards him are the result of the mother’s coaching. I also agree with both Dr. Saini and Dr. Polak’s clear recommendation that a comprehensive assessment is necessary to determine exactly why the children are reluctant to engage in contact with their father. It is unfortunate that such an assessment has not yet commenced. Much time has already been lost in waiting for an agreement to that assessment.

Four Additional Factors that I have Considered Regarding Access to TC

87I have also considered four other factors in deciding whether to continue the order requiring TC to exercise access to the father. First, I have considered whether ending the requirement will effectively undermine the relationship between TC and the father. I have seen nothing in the materials before me that would point to such a result. TC has already spoken to Dr. Saini and Dr. Polak of her fear of her father and her complaint that he tries to “bribe” her during access. Dr. Saini has noted her sadness and distress regarding her current situation within the family conflict. Yet she has not said that she refuses to see him or that she wants nothing to do with him. Rather, she wants to feel “safe” during those visits.

88Second and in a related point, the father’s argument that ordering his increased parenting time would send a message to the children that he is an important part of their lives, fails. That argument fails to account for the children’s own concerns and trauma. Both parents have acknowledged that trauma, albeit not its cause. The proposed message would certainly enhance the father’s understandable desire to increase his contact with the children. But it would not enhance either child’s view of his father. In the facts of this case, as they are presently available, it is more likely that they will see such an order as a negative message. They may perceive it as one that makes them feel less secure and more reluctant to engage in parenting time with their father.

89Third, I have considered the effect on JC if I were not to require TC to attend at access visits. From what the children told Dr. Saini, they are neither particularly close to nor are they distant from each other. They described their relationship as “normal”. They do not spend a great deal of time together as each is involved in their own activities. When they do, they generally get along. Neither child has told either Dr. Saini or Dr. Polak that they rely on each other during access or that the presence of the other sibling is a necessary part of their access.

90Fourth and finally on this issue, the father’s lawyer points out that TC has obeyed the previous access orders. He relies on that fact in asking the court to continue and expand upon Coats J.’s access order for TC. The implication of this argument is that TC’s obedience to the order is a reason to continue or expand it, despite her age. The fact that a 15 and now 16-year old child obeys court orders should not be a reason to impose an access order on her against her will. Her respect for a court order does not rob her of her voice or her rights.

91For all the reasons set out above, I do not find it to be in TC’s best interests to use a court order to force her to see her father against her will. That does not mean that she should not see her father. In fact, I expect some form of access to continue. I encourage TC to see him as often and, in such manner, as she feels comfortable in doing so. The mother should encourage such contact. It would be best for TC to also participate in the counselling and parenting assessment that I also strongly recommend. However, I will not use the weight of a court order to force TC to attend access visits.

Should I Increase the Father’s Access to JC?

92Regarding JC, the legal considerations are different than those of his sister. As an 11–year-old, JC has a say but not a veto regarding his parenting arrangements. The court’s determination of the weight to give to JC’s views and preferences will depend on his age, maturity, understanding and level of independence. As Benotto J.A. wrote in at para. 67 of G. (R.) v. G. (K.):

The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge's discretion as she seeks to determine the child's best interests.

93Kristjanson J. noted much the same point when she stated in Medjuck, regarding the views and preferences of the 14, 12 and 8-year-old children whose views she was considering:

32 If the child is capable of forming views and communicating them, then generally, she should be allowed to express them in a judicial proceeding affecting her interests. In many cases, including high-conflict cases, the key issue will be the weight to be given to the child's views in light of the child's age and maturity and the other factors which inform the judicial assessment of a child's best interests. In some cases the alienating behaviour of the parent "may be such that the child is not really capable of forming his or her own views" …

94Here, an independent and respected social worker has reported that JC has expressed clear and consistent views and preferences regarding contact with his father. A report from a second independent and respected social worker, written about three months later, offers no reason to believe that JC has changed his mind. Further, JC has articulated reasons for his views to both social workers. They are related to allegations of abuse and trauma which have directly affected him. The trauma and its direct effect on JC are not denied by either parent, even if the abuse is denied by the father.

95Here, while resisting contact, JC is saying that he would like his father to take responsibility for what he perceives to be his father’s abusive conduct towards his mother and himself. He is also saying that he wants his contact with his father to take place in conditions that feel safe to him. He described those conditions to Dr. Saini as not being behind “closed doors”.

96In pointing to each child’s consistently expressed views or preferences, I am not finding that the abuse allegations made against the father are true. I am not able to make so definitive a finding in the absence of a trial. But I am not in a position to deny or ignore the allegations either. What I am saying is that the comments of both JC and TC, as they presently stand, offer some meaningful confirmation of the mother’s abuse allegations as well as their states of mind.

97As stated above, even absent a trial, I do not doubt that JC has experienced a significant level of trauma due to his parents’ discord. JC also feels that he has experienced verbal abuse from his father and fears its continuation in the future.

98In considering JC’s best interests, I have no doubt that ordinarily, the maximum contact principle would apply. It would ordinarily allow a parenting arrangement that maximizes the child’s time with his father. I do not ignore the fact that the father was quite involved in JC’s life and activities before the separation. But the maximum contact principle, as stated above, must be tempered by the extent to which it meets or fails to meet the child’s best interests. Part of that consideration must be the child’s feeling of security with his father. He clearly fears his father and has articulated credible reasons for that fear. Here, the child’s best interests require me to depart from the maximum contact principle.

Note about the Mother’s Approach to this Litigation

99While this motion has not provided me with the full appreciation of the complex issues at play in this case that would be available at trial, I can see that the issues between the parties are not simply one-sided. In addition to the findings set out above, I must also identify the way the mother has shown herself to be reluctant to move forward to improve the children’s relationship with the father.

100In making her May 6, 2019 endorsement, Coats J. noted that the mother had originally stated her intention to enhance the children’s relationship and time with the father. She told this to Dr. Saini. The mother then said that Dr. Saini’s report of the children’s views and preferences caused her to draw back from that goal. But nothing that Dr. Saini wrote should have come as any surprise to the mother. She was present for the events in which she says that the father assaulted and verbally abused her. She has spoken to the children and must have known of their views and preferences.

101Further, as Coats J. pointed out, Dr. Saini clearly asserted that the children’s views and preferences should not be used to bolster either parent’s position. But the mother did not follow that advice in seeking to rely on Dr. Saini’s report to limit any increase in the father’s access. Coats J. rejected that approach, when she increased access to its present level.

102I also note that in her materials for this motion, the mother has set out several reasons not to expand access. They include that father’s sleep apnea and the children’s busy schedules. Neither is a good excuse for limited access.

103Nothing in our law prevents a person suffering from sleep apnea from driving a car. Nothing in the mother’s materials points to the father ever placing anyone at risk while driving because of his sleep apnea. Without any such evidence, I cannot restrict the father’s contact with the children based only on his sleep apnea condition. Further, the children’s busy schedules should not, in themselves be an impediment to access. Access can be arranged around activities and vice-versa.

104In addition, the father has at least implemented Dr. Polak’s recommendation to engage a counsellor (albeit without providing any details on that counselling to the court). However, judging from her evidence, the mother has done nothing to follow up on any of Dr. Polak’s recommendations. All that she can say is that she lacks the money to do so. That strikes me as a thin reed on which to rest her inaction. The father had been willing to pay for Dr. Polak’s programme and has said that he is willing to pay for the children’s activities as long as he is consulted. The mother has provided the court with no evidence to show that she requested the funds to enact the counselling terms recommended by Dr. Polak. I have no reason to question the father’s willingness to financially assist in that regard.

105In other words, there are steps that both parents can take to move forward on the issue of the father’s contact with each child.

Conclusions

106As set out above, I have found that, at age 16, TC is old enough to make her own decisions about access. She has articulated clear reasons and concerns for her position regarding access. I cannot find that those reasons lack independence. It would not be in her best interests for the court to impose an access order on her.

107Regarding JC, the family’s anticipated admission into the Families Moving Forward programme that was the basis for Coats J.’s increase in the parenting time arrangements, has not come to pass. Based on the evidence presently before me, and for the reasons set out above, I do not find that it would be in JC’s best interests to change the basic terms of the arrangement that Coats J. very thoughtfully ordered.

108Regarding the place of the access, I note that the mother has been flexible in allowing a number of venues for the visits. There is no magic in the country club or even a restaurant. If the father and child/ren wish to see a movie together or attend another public place, so be it. Similarly, if they want to engage in another activity, they should be able to do so. Accordingly, the father may choose the location of the access, so long as it is in a public place and is within reasonable driving distance for the mother.

109I will not change the driving arrangements, but not because of the unproven concerns about the father’s sleep apnea. Sleep apnea was never the reason for the original driving restriction. The driving term was originally imposed to allow the access to take place in a public area. This allows the children to feel more secure with their father. I fear that if I change that term, it will make both children, especially TC, who is no longer required to attend access, reluctant to participate in it.

110While the father claims that the children told him that their mother restricts their ability to send text messages to him, there is no independent confirmation of that claim. Nothing that the children told either Dr. Saini or Dr. Polak offers any credibility to that claim. In fact, both children told both professionals of their difficulty in speaking openly with their father because of their fear of him. I see no reason to change the communication arrangements set out in the Coats J. order. If the children wish to call or text their father, they remain free to do so whenever they wish.

111I further see no reason to change the reasonable terms of Conlan J.’s consent order of September 26, 2019. That order responds to some of the father’s concerns about disclosure and his exclusion from participation in parental decision making. The terms of that order will remain in force until further order.

112As the access issue has now been argued in full before me and as there is no pending treatment plan, there is no need to continue to make an interim access order a without prejudice one. This case is only about 11 months old and it already encompasses four banker’s boxes. If there is a material change in circumstances, either party may bring the issue of interim access to JC back before the court.

My Strong Recommendation: The Parents Should Immediately Implement the Recommendations of Dr. Polak and Dr. Saini

113While the issue of a s. 30 assessment is not before me, I repeat that I strongly recommend that the parties immediately commence this process. I do not believe that there will be any progress to a final resolution of the parenting issues without one.

114Ironically, the father’s previously professed reason for resisting such an assessment is the delay that it will entail. The delay has already occurred, without any progress towards resolution of the parental conflict. I understand the parents refraining from commencing an assessment when they entered the Families Moving Forward intake process. But once Dr. Polak informed them this past July that they will not be accepted into the programme, they should then have moved forward with the assessment.

115Further, the issue of the implementation of Dr. Polak’s other four recommendations is not before me. However, I again strongly recommend that the parties immediately implement them. The father says that he has begun counselling, but it is not clear that his counselling is the type of coaching recommended by Dr. Polak. Regarding Dr. Polak’s three other recommendations, there is no good reason that they are not being recommended immediately.

116The parents should also ensure that adequate financing is put into place to pay for the implementation of Dr. Polak’s recommendations. Once that is in place, there would be no excuse for any failure to implement all of Dr. Polak’s recommendations.

Order

117For the reasons set out above, I order as follows:

1. The temporary order of Coats J. of May 6, 2019 shall be varied as follows:

a. The access and communication terms of that order shall be amended such that its access terms apply only to JC. They shall not apply to TC.

b. The father may choose the location of the access set out in the order of Coats J., provided that it is in a public place and that it is within the reasonable driving range of the mother. If there is any disagreement regarding this term, the parties may attend before me.

c. The balance of that order shall remain n full force and effect.

2. The temporary order of Conlan J. of September 26, 2019 shall remain in full force and effect until further order.

3. The terms of this order are not “without prejudice”.

4. The balance of this motion is dismissed.

118If the parties are unable to agree on costs, each may file a three-page costs submission, along with a bill of costs/cost outline and any applicable, highlighted authorities. The submission should be double-spaced and in 12-point font. As she was the more successful party in the contested portion of this motion, the mother should file first. She shall do so within 14 days of the release of these reasons and the father 14 days after the mother has done so. No reply shall be filed unless requested.

Kurz J.

Released: November 25, 2019

COURT FILE NO.: 41901/19

DATE: 2019-11-22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MC

Applicant

– and –

MAC

Respondent

REASONS FOR JUDGMENT

Kurz J.