COURT FILE NO.: FS-12-76705-01
DATE: 2019 01 31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TEODOR CIPRIAN BORS
Jacqueline Dickison, for the Applicant
Applicant
- and -
ANA-CRISTINA BORS
Robert Fernandes, for the Respondent
Respondent
HEARD: August 13, 2018
REASONS FOR JUDGMENT
COROZA J.
[1] Ciprian Bors, the Applicant, and Ana Bors, the Respondent, were married in 2002.
[2] They were separated in 2012. They have two children. I will identify them by the following initials: M is their 12-year-old daughter, and CAD is their 7-year-old son.
[3] There is a final order made by this court permitting Ciprian access to the children. Ciprian brings a motion to vary the final access order.
[4] Snowie J. made a final order on consent in relation to custody and access on May 11, 2015. This final order gave Ana sole custody and Ciprian access to the children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. or until Monday at 6:00 p.m., if that day is a statutory holiday.
[5] Regrettably, because of conflict between the parties, the final order has not been followed. As it stands, M does not want to spend time with her father.
[6] On February 23, 2017, Ciprian brought a motion, without notice to Ana, to reinstate some access. He claimed in his materials filed on that motion that his children were not attending for access visits.
[7] Andre J. granted Ciprian’s motion and varied Snowie J.’s order. Andre J. directed that Ciprian have access to the children every other weekend on Friday at 4:30 p.m. and ending on Monday at 8:45 a.m.
[8] Ana brought a motion on March 7, 2017, to set aside Andre J.’s order. That motion was scheduled to be heard on April 13, 2017.
[9] Ciprian then filed a motion to change the final order of Snowie J. on March 23, 2017.
[10] On April 13, 2017, the parties appeared before Andre J. and consented to an order that if the children were not in school, then access was to be at the Tim Horton’s Coffee Shop at the Bramalea City Shopping Centre and the parties were to utilize the services of Brayden Supervision. All other terms of Snowie J.’s order remained in force.
[11] On May 12, 2017, Brayden Supervision terminated their services.
[12] The parties then attended a case conference with a dispute resolution officer on June 9, 2017. After the conference, Van Melle J. requested that the OCL provide a report to the court and directed that when the children are not in school, access was to take place at Square One Peel Regional Police Station in Mississauga, Ontario. Van Melle J. also ordered that exchanges were to take place on Fridays at 6:00 p.m., with a Sunday drop-off time of 6:45 p.m. or, if there is a statutory holiday, a Monday drop-off time at 6:45 p.m.
[13] On July 13, 2017, Ciprian then attempted to bring an interim motion for summer access. Van Melle J. dismissed the motion for summer access but ordered that Ciprian should proceed to the hearing of a motion to change the final order of Snowie J. “as soon as possible”.
[14] Presumably, because he was still waiting for the report from the OCL, Ciprian did not schedule the motion to change the final order until a year later. That report was completed on April 9, 2018.
[15] On June 29, 2018, he appeared in front of Bloom J., who granted him leave to bring yet another motion for access to the two children returnable June 29, 2018.
[16] The parties appeared in front of me on June 29. The OCL report was disputed by Ana. I dismissed the interim motion brought by Ciprian for access to the two children, but I ordered that he proceed with his motion to change the final order as directed by Van Melle J. Additionally, pursuant to s. 112(4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), I directed that the author of the OCL report, Ms. Wendy MacKenzie, attend for questioning. The motion was adjourned to August 13, 2018.
[17] On July 17, 2018, the parties held a case conference before Baltman J., who set down a timeline for questioning (on consent). Each party agreed to question Ms. MacKenzie for 15 minutes.
The Hearing of August 13, 2018
[18] Ms. MacKenzie testified and was cross-examined on her report. Her report is admissible in these proceedings pursuant to s. 112(3) of the CJA.
[19] I find Ms. MacKenzie to be a credible witness. She testified in a straightforward manner. There was nothing about her evidence that struck me as exaggerated. Nor did I detect any tendency to be defensive. Some of the inconsistencies and errors in her report that were brought out during cross‑examination are not material to the dispute.
[20] Ms. MacKenzie has recommended that Ciprian have access to M every Friday after school at 4:00 p.m. until Monday at 9:00 a.m. and access to CAD on a “week on and week off” schedule.
[21] As I understand her evidence, the increase in access for CAD is important to ensure that the relationship between father and son is preserved. It is her view that CAD is beginning to exhibit reservations about not visiting his father.
[22] Ms. MacKenzie noted that the OCL previously completed a report on this family on September 18, 2013. In the 2013 report, the OCL recommended that Ana have full custody of both children and that Ciprian have access every Wednesday evening and every other weekend from Friday to Monday. The 2013 report suggested that access could be gradual and included Wednesday overnights.
[23] Ms. MacKenzie testified that starting in September 2017, M has refused to attend for access visits with her father. CAD has also stated that he does not want to attend access, but he has nonetheless been attending for the visits.
[24] Ms. MacKenzie notes that Ana takes the position that the children’s wishes should be granted and that the children will be harmed if Ciprian has access to the children. According to Ana, Ciprian has been touching M inappropriately. Ana also alleges that Ciprian does not supervise the children when he has care of them.
[25] Ciprian is alleging that Ana is alienating the children from him. It is his position that he would like an access schedule of every other weekend and Wednesday, as well as holiday time. Ciprian also alleges that since the 2015 order, Ana has interfered with access several times, claiming the children were too sick to attend for access visits.
[26] Ms. MacKenzie interviewed both children. CAD was interviewed and advised Ms. MacKenzie that he has fun visiting with his father and he wants to go on with the visits. Initially, he told Ms. MacKenzie that Ana and his maternal grandmother told him that he cannot go to the visits. When he was confronted with the fact that his mother said this statement was not true, he retracted this statement.
[27] In a second interview, CAD told Ms. MacKenzie that he would like to spend more time with his father.
[28] M advised Ms. MacKenzie that she does not want to go for access visits because when she is with her father, he takes her to boring places and she does not get to eat what she wants to eat. She also told Ms. MacKenzie that Ciprian is always on a cellphone or laptop and ignores her.
[29] Ms. MacKenzie expresses some concern that Ana continues to make allegations that Ciprian is making the children ill. She believes that Ana has an unfounded fear that the children will be killed if they are in the care of Ciprian. These allegations have resulted in CAD going to various unnecessary medical appointments.
[30] Ms. MacKenzie concludes that the allegations of sexual touching made by Ana are unfounded because M has been examined by professionals who have found no concerns. For example, the family physician has no concerns about the children. Furthermore, the Children’s Aid Society shares Ms. MacKenzie’s concerns regarding Ana’s allegations and the trauma that the children have been exposed to as a result of her behaviour.
[31] Ms. MacKenzie is of the view that Ciprian will lose a relationship with both his children if a serious change does not occur.
[32] Ultimately, she has concluded that Ciprian should have access without interference.
[33] Although, Ciprian was only requesting access to his children every other weekend from Friday to Monday and every Wednesday plus vacation and holiday time, Ms. MacKenzie has suggested that an immediate increase in access is needed to ensure that Ciprian’s relationship with his son is preserved. She has recommended that CAD stay with his father every other week.
[34] Ms. MacKenzie concludes that Ana does not appear to understand the role that she has had in negatively impacting the children. It is her view that Ana needs to encourage and foster a positive and healthy relationship between the children and their father despite her feelings about him. Ana should consider counselling support to help her achieve this.
[35] For the time being, Ms. MacKenzie is of the view that Ana can still maintain sole custody of the children. However, if she is unable to change, then a change in custody should be considered.
Issues
[36] This motion can be distilled into the following three issues:
(a) Should the court direct a trial on the issue of custody and access pursuant to r. 15(26) of the Family Law Rules?
(b) If a trial is ordered, should the order of Snowie J. be varied on an interim basis?
(c) What changes to the final order, if any, are in the best interests of the children?
Analysis
a) Should the court direct a trial?
[37] Ana argues that I should direct a trial of the matter. It is her position that the court requires a full evidentiary record before deciding what is in the best interests of the children. Counsel notes that Ciprian’s request for increased access based on Ms. MacKenzie’s report is a significant jump in the time the children spend with their father.
[38] Ciprian argues that there is no need for a trial. It is his position that Van Melle J. ordered that he should bring a motion to vary the final order and he has done so. Counsel for Ciprian argues that under r. 15 (motions to change a final order) of the Family Law Rules, O. Reg. 114/99, this motion can be dealt with exclusively on the documentary evidence filed.
[39] Ciprian raises two further points. First, counsel for Ana has had an opportunity to confront Ms. MacKenzie through cross-examination, and I am in a good position to make credibility findings based on that cross-examination.
[40] Second, in this case, if Ana had wanted to call evidence in response to the report, she should have done so and nothing prevented her from doing so.
[41] After carefully considering the arguments of both parties, I prefer the arguments of Ana on this issue.
[42] I acknowledge that r. 15 (22) to (24) does permit a judge to change a final order on the basis of documentary evidence filed. However, the rule is permissive. The court can order a trial if the court is of the view that it cannot properly adjudicate the matter on the documentary evidence alone: r. 15(26). The onus is on Ana to show that a trial is needed. In my respectful view, Ana has demonstrated that a trial should be held. I say this for the following reasons.
[43] First, although Ms. MacKenzie has been cross-examined, I note that both counsel were restricted to 15 minutes of questioning. I am concerned that counsel for Ana has not been able to completely deal with all issues of credibility and reliability on a time-limited cross-examination. Cross-examination is often described as the best tool for discovering the truth in an adversarial process and courts should be very reluctant to impose time limits on cross-examination. When I consider the extent of the cross-examination that has occurred (a total of 15 minutes) and the subject matter of the cross-examination (challenging Ms. MacKenzie’s conclusions and recommendations on a lengthy report), I believe that further cross-examination is likely to assist the court’s ability to assess the evidence.
[44] Second, Ciprian and Ana have filed supplemental affidavits that make strong allegations against the other. I believe it is important for each of them to be cross-examined on their affidavits. Indeed, there is a reasonable likelihood that cross-examination will assist a judge in making a determination of what is in the children’s best interests.
[45] As it stands, none of the affidavits have been tested. Again, each party makes particularly strong allegations against the other. For example, Ciprian says that Ana is putting the idea of litigation ahead of the children’s educational and developmental needs. For her part, Ana says that Ciprian continues to control, intimidate and harass her. It is my view that a trial, where both Ana and Ciprian will testify, is the best forum to litigate the divergent views of these parties: see Ierullo v. Ierullo (2006), 2006 CanLII 33301 (ON CA), 216 O.A.C. 78 (C.A.), at paras. 16-18.
[46] Accordingly, I am of the view that the final motion to change cannot be properly dealt with based on the untested material filed and the limited cross-examination of Ms. MacKenzie. I direct that the parties should proceed to a trial. Within 30 days of the release of these reasons, the parties shall schedule a trial management conference.
b) Should the final order of Snowie J. be varied?
[47] I have found that a trial should be ordered. What then should be done in the interim? M does not want to visit her father. CAD is starting to exhibit signs that he will not be attending access visits. Both children are still very young.
[48] Ana takes the position that the status quo should be maintained. Ana claims that her materials on this motion demonstrate that it is in the children’s best interest to leave them in her primary care and that there is no compelling reason to change the final order.
[49] Ciprian takes the position that despite repeated warnings by the court, Ana continues to alienate the children from him. He points out that there have been dozens of missed visits. He asserts that Ana’s conduct has led to a material change in circumstances.
[50] There is no dispute that a court may alter custody or access on an interim motion pending trial in a motion to change a final order.
[51] While I agree with Ana that the general rule is that the status quo should be maintained, if there has been a material change in circumstance since the making of the final order, then custody and access can be changed on an interim basis: see Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), r. 29. (See: Papp v Papp (1969), 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 (C.A.) and McEachern v McEachern (1994), 1994 CanLII 7379 (ON SC), 5 RFL (4th) 115 (Ont. C.J. (Gen. Div.)), at para. 9.)
[52] I find that there has been a material change in circumstances for the following reasons.
[53] First, the final order made by Snowie J. contemplated that Ciprian would have regular access to the children. On this record, I am satisfied that the opposite has occurred.
[54] Second, an OCL report has been completed as of April 2018. The report has outlined observations by a clinical investigator. The report has disclosed troubling information. Although, there will be further cross-examination, I am satisfied that the conduct disclosed in the report reveals new information that is a material change in circumstances.
[55] I am mindful that OCL recommendations are not binding on a judge. There is some support in the jurisprudence that suggests that OCL recommendations should rarely be used in interim motions (See: Bos v. Bos, 2012 ONSC 3425, at para. 26).
[56] I acknowledge that there is an inherent danger in relying on a report that has not been fully tested. I have approached the question of whether there has been a material change in circumstances with these considerations in mind.
[57] After carefully considering that there has been some cross-examination on the report, I am persuaded that the status quo should not be maintained pending a trial and that the order of Snowie J. can be varied.
c) What changes should be made in the best interests of the children?
[58] The children’s best interests are the paramount consideration when any type of order for access or custody is ordered. The welfare of the children is primary. The criteria set out in s. 24(2) of the CLRA govern my decision. In my respectful view, two considerations are especially important on this motion.
Love, Affection and Emotional Ties
[59] Ms. MacKenzie has outlined in her report a fear that the emotional ties between the children and Ciprian will be damaged unless a change occurs. As I see it, what is causing the disruption to those ties is the inability of Ciprian to enforce regular access. Ms. MacKenzie is concerned that Ana has done nothing to encourage the children to have access to their father.
[60] In my view, this factor favours increased access to Ciprian. There is nothing on this record that would support Ana’s assertion that the children will die while in Ciprian’s care or that he is behaving inappropriately towards his daughter.
[61] As Ms. MacKenzie points out, these allegations are unfounded and no professional has supported the assertions made by Ms. MacKenzie. It is very important that the love, affection and emotional ties between Ciprian and his children be encouraged.
[62] Third, the law is clear that children have a right to maximum contact with both of their parents, as long as it is in their best interests: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 24-25. The maximum contact principle is an important factor in determining the child's best interests: Reeves v. Brand, 2018 ONCA 263, 8 R.F.L. (8th) 1, at paras. 21-22.
The Children’s Views
[63] Both children were interviewed by Ms. MacKenzie. M has expressed a desire not to see her father because he does not let her do the things she wants. CAD has asserted that he enjoys spending time with his father.
[64] It is my view that this factor favours increased access to Ciprian. In my view, both children are still young. They are not in a position to dictate when access should occur. I do not minimize the assertions made by M. Indeed, I think those assertions are likely a very real reaction to the high conflict that is occurring between her parents. However, it is my view that it is in the children’s best interest to attend access visits with their father on a regular basis and that Ana should be encouraging these visits.
[65] On this record, I conclude that Ms. MacKenzie is correct. Meaningful change must take place before it is too late. I realize that I will not be the trial judge and that I am dealing with this high-conflict file on a less than complete record. That being said, it is my view that the status quo cannot be maintained and a significant increase in access should be ordered.
[66] Having said all of this, I do not accept that the order recommended by Ms. MacKenzie is a desirable one.
[67] First, this was not the order that Ciprian had asked for initially during his interview. Ciprian would be in the best position to know what access schedule works for him.
[68] Second, it has been a very long time since Ciprian had regular access to M. I am concerned that imposing an access schedule that requires her to spend every weekend with her father is too drastic a change at this point.
[69] Accordingly, while I would increase access at this point, I think the appropriate interim order is to increase Ciprian’s weekly access to three times a week, with the children staying with him every other weekend.
Conclusion
[70] I disagree with Ana that the status quo should be maintained. As noted by Ms. MacKenzie, there is urgency in this case requiring meaningful change. There is no trial date set yet in this matter, and the parties require an interim order to bridge the gap that will occur from the date these reasons are released to the judgment at trial.
[71] In order to rectify the situation identified by Ms. MacKenzie, I make the following orders:
The final order of Snowie J. is varied on an interim basis. It is ordered that:
Ana shall continue to have sole custody of the children.
The parents shall use a program such as Our Family Wizard to communicate. The parents shall share equally in the expense. If that program is no longer available, the parents shall communicate by email. If one of the parties will have the children for two or more overnights in a row, on the second, third, fourth or fifth overnight, that parent shall initiate the children having unsupervised telephone access with the other parent between 6:00 p.m. to 8:00 p.m., for at least five minutes with the child.
Effective immediately, the children shall, pending the trial of this proceeding, be in the care of the parties in accordance with the following schedule:
(a) Ciprian shall exercise access to the children each Monday, Wednesday, and Thursday from the end of school (or, if it is not a school day, from 4:30 p.m.) until 8:00 p.m.
(b) Ciprian shall exercise access to both children every other weekend beginning February 1, 2019, from Friday (or, if Friday is a holiday, then Thursday) until Monday evening at 8:45 a.m., when he shall drop-off the children to school.
(c) The access exchanges are to take place in front of the Peel Regional Police Community Station at the Square One shopping mall or Ciprian may make the pick-ups and drop-offs himself, at the children’s schools. If there is no school, then pick-ups and drop-offs are to be at the PRP Community Station. If the PRP Community Station is closed the transfer exchanges of the children shall occur inside of the mall in front of an information kiosk on the second level. The parties shall not communicate at the time of exchange, other than as necessary to effect the exchange, and any communications will be made in a respectful manner.
(d) Neither parent shall disparage the other in the presence of the children. Neither party shall discuss with the children any issues between the parties.
(e) The parties shall observe the special access days with regard to the children as set out below, during which the regular access schedule shall be temporarily suspended:
i. Father’s Day: If the children are not otherwise with the father on this day, they shall reside with him on Father’s Day until their return to school.
ii. Mother’s Day: If the children are not otherwise with the mother on this day, they shall reside with her on Mother’s Day until their return to school.
iii. March break: Beginning in 2019, and in odd-numbered years thereafter, from the close of school to the resumption of school, the children shall spend their March break with the father. Beginning in 2020, and in even-numbered years thereafter, from the close of school to the resumption of school, the children shall reside with the mother.
iv. Easter:
a. In odd-numbered years beginning in 2019, the children shall reside with the mother from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m., and with the father from Saturday at 10:00 a.m. to the resumption of school.
b. In even-numbered years beginning in 2020, the children shall reside with the father from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m., and with the mother from Saturday at 10:00 a.m. to the resumption of school.
v. Summer Vacation: Both the father and the mother shall have uninterrupted vacation time with the children for a duration of two weeks, during which the other parent’s mid-week access shall be suspended, resuming upon the end of the two-week vacation period. The two-week vacation period will take place in the months of July or August. Starting in 2019, Ciprian will be given first choice of the vacation period and shall advise Ana by May 1 of the chosen vacation weeks with the children. Ana shall advise Ciprian by May 15 of the chosen weeks. The mother shall have first choice in even-numbered years, beginning in 2020. The father shall have first choice in odd-numbered years, beginning in 2019.
vi. Canada Day: The children shall spend Canada Day with the parent with whom they normally spend that day of the week based on the above-mentioned provisions of this order, unless the day falls on the vacation access of a parent, in which case they shall spend Canada Day with the parent with whom they are scheduled to spend vacation at that time based on the provisions of this order.
vii. Thanksgiving weekend: In odd-numbered years, beginning in 2019, the children shall spend it with the father. In even-numbered years, beginning in 2020, the children shall spend this holiday with the mother.
viii. Christmas: Beginning in 2019, and in odd‑numbered years thereafter, the children shall reside with the mother from the beginning of the school holiday until December 25th at 12:00 noon; with the father from December 25th at 12:00 noon until the December 29th at 12:00 noon; and with the mother from December 29th at 12:00 noon until the resumption of school. Beginning in 2020, and in even-numbered years thereafter, the schedule shall be reversed, and the children shall reside with the father from the beginning of the school holiday until December 25th at 12:00 noon, etc.
ix. Parties’ birthdays: The children shall spend at least two hours with each parent on their parents’ respective birthdays. The scheduling of this birthday time will be left to the discretion and availability of the parties.
Costs
[72] On the issue of costs, I will receive costs submissions in writing of no more than 3 pages in length double spaced. In addition, the submissions will include the costs submissions of the following proceedings April 6 and 13, 2017, and June 29, 2018.
Coroza J.
Released: January 31, 2019
COURT FILE NO.: FS-12-76705
DATE: 2019 01 31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TEODOR CIPRIAN BORS
Applicant
- and -
ANA-CRISTINA BORS
Respondent
REASONS FOR JUDGMENT
COROZA J.
Released: January 31, 2019