COURT FILE NO.: FS-12-377455
DATE: 20190130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
B.J.S.
Applicant
– and –
X.Q.Z. (A.K.A .J.Z.)
Respondent
Chelsea Hooper, for the Applicant
Jeff Rechtshaffen, for the Respondent
HEARD: January 24, 2019
SHORE, j.
[1] Both the Applicant and Respondent brought motions. The parties have two children, namely M.A.S., born […], 2003 and J.B.S., born […], 2005, who are now 5 and 13 years of age. The Applicant brought a motion for an order requiring the children to attend counselling, with one of the four therapists he proposes, with the strict terms imposed on both parties with respect to their participation in same. The applicant is also asking for an order restraining the Respondent from involving the children in the conflict and ensuring that the children’s scheduled residential time with him takes place. He is also asking for an order which would ensure that he received information with respect to the children’s education and welfare and provide him with joint decision-making authority regarding the children’s education. Finally, he is asking for an order for leave to bring a contempt motion on five days’ notice.
[2] The Respondent brought a motion for an order for the appointment of the Office of the Children’s Lawyer (“OCL”) for the purpose of preparing a Voice of the Child Report. She is also asking for an order suspending the current access schedule and that the applicant be restrained from initiating contact or communicating with the children.
Brief Introduction
[3] The parties were married in April 2002 and separated in April 2012. The children were eight and six years of age at the time of separation and are now 15 and 13 years of age. In the period following separation, there were problems with respect to access. Then, for a few years the Applicant had regular access to the children. However, M.A.S. has not attended for access with his father since August 2018 and J.B.S. stopped attending for regular access in November 2018. Neither child is currently seeing their father.
[4] To describe this case as high conflict would be an understatement. What is most troubling about this case is the fact that everyone involved with this family forewarned them that their ongoing conflict would have serious negative repercussions on their children. At one point in time, the children were placed in foster care for three months because of the high level of conflict between the parties. Despite the warnings, the parties continued their attacks on one another. Each continued to blame the other and neither accepted responsibility for his or her own actions. Here we are six years’ later and the parties are now dealing with some very serious issues regarding their two teenage children.
Brief Litigation History
[5] I am not going to go over the very lengthy and protracted six year history of this file except to summarize the events that are relevant to this motion. There have been at least 15 motions in this file. In April 2012, the litigation started by way of an urgent motion without notice, when the Respondent left the house with the children and denied the Applicant access to the children. On April 10, 2012, Justice Perkins ordered the children returned home. The Respondent returned to the house with the children. On May 29, 2012, the parties entered into a consent order, for a week on/week off nesting arrangement. However, shortly thereafter, various allegations were made against the Applicant by the Respondent and the police and JF&CS became involved with the family. On July 25, 2012, the children were apprehended and taken into foster care for three months, out of concern that the children were being exposed to high levels of conflict and in need of protection. The custody and access issues were stayed as a result of the child protection proceedings. It took almost three years, until September 2014, to resolve the criminal charges arising from complaints made by the Respondent and for JF&CS to terminate their supervision order. By that time a new status quo was in place and the children had their primary residence with the Respondent.
[6] The parties were back in Court in May and June 2015 on the custody and access issues (between 2012-2015 they continued to litigate the financial issues, lest anyone think there was a hiatus from the litigation). The Applicant was seeing the children on alternate weekends and one evening a week. Justice Stevenson declined to amend the parenting schedule and encouraged the parties to set the matter down for trial. The Order also requested the involvement of the Office of the Children’s Lawyer (“OCL”) but the OCL declined to accept the file. The OCL had been representing the children in the child protection proceedings but were not prepared to be involved in the family law proceedings. The OCL expressed concern about parental influence over the children and becoming involved any further with the family, given the high level of conflict (and the threat by each party to report the OCL lawyer to the Law Society).
[7] The children continued to see their father as per the Order of Justice Stevenson for the next three years. The parties continued their animosity between one another and involved the children in the disputes. As of August 2018, M.A.S. stopped seeing his father. In November 2018, J.B.S. stopped spending time with his father. Both parties blame the other.
[8] It is the Order of Stevenson J., dated June 18, 2015, that the parties are both seeking to amend/enforce. The Applicant wants enforcement of the parenting schedule set out in the order, with stricter wording around parenting issues. The Respondent wants a Voice of the Child Report and an order suspending access until the parties have received the report.
The Children
[9] Sadly, over the last few years, there has been a significant deterioration of the children’s mental, emotional and educational well-being. M.A.S. barely passed Math and Science last year and is failing this year. He was a strong student prior to separation. He has been late for or missed over 54 days of school last year. He is failing to hand in assignments and complete his homework. He has low self-esteem, high anxiety, and has been suicidal at times. There is serious concern regarding his lack of respect to others, culminating in him being suspended from school for two days just prior to this motion for instigating an assault against another child and videotaping same. Likewise, J.B.S. was late or absent from school for 54 days during the last school year. He too has failed to hand in homework and assignments. J.B.S. has been described as having a “hair trigger temper”, which he exhibits both at school and at home. By way of example, he was suspended from hockey last year as a result of his behavior towards a referee. He was then benched as a result of his behavior towards his team members. Dad has no influence over the children as they are currently not seeing him. Mom takes no responsibility for them and seems to have difficulty setting boundaries.
The parties’ inability to act in the best interest of the children
[10] The Applicant alleges that the Respondent has alienated the children from him and she discusses their disputes with the children. In light of the evidence filed on this motion, I am satisfied that Respondent does inappropriately involve the children in the disputes. While I cannot say for certain whether or not she has actively tried to alienate the children from their father (or to what extent), she has done nothing to encourage the relationship and has not hidden her contempt for the Applicant from the children. Further, the Respondent could use some help with her parenting skills, including setting rules and boundaries for the children. She acknowledged that there are no real consequences for bad behavior in her home or for their refusal to see their father. She enables the children’s poor behavior towards their father. What is clear from her materials is that she has no insight into how her actions have affected the children. She accepts absolutely no responsibility for the children’s lack of relationship with their father, their poor attendance record at school or their failing grades, despite the children having their permanent residence with her.
[11] Both parties have been quick to call the police on the other and have made complaints that have been unsubstantiated. Both have continued the conflict between them.
[12] In addition, the Respondent refuses to provide basic information to the Applicant about the children. Although she has sole custody of the children, the Applicant has a right to information regarding the children. The Applicant has deliberately kept the Applicant in the dark. Her lawyer was clear that she believes that “the end justifies the means”.
[13] Justice Aiken, in Stuyt v. Stuyt, [2009] O.J. N0. 2475, at paragraph 52, could have been talking about this file when he stated:
In order to meet his own needs of wanting Braden living with him, the respondent is undermining Braden’s respect for the applicant, for the law, for the courts, for the police, and for authority in general. Heaven help Braden as he moves through his teenage years and his years as a young adult if this is the message he is receiving from his father.
It is also the role of parents to instill in their children a respect of the law and of legal institutions. A parent who does not do so does a huge disservice to his or her child-a disservice that can have lasting, negative, ramifications throughout the child’s life.
[14] The job of a parent is to parent. It is the responsibility of the Respondent to take appropriate steps to make sure the access schedule in the order is complied with. By failing to encourage the children to attend for access or having consequences for same, the Respondent is showing the children a lack of respect for the Applicant and court orders. The children have started to show signs of lack of respect for both authority and the law. Unless something changes quickly in the way that she parents the children, their problems are only going to get worse over time.
[15] The Respondent alleges that the Applicant suffers from anger management issues and has been aggressive with the children. She says he has a confrontational personality and has involved the children’s teachers, friends, karate studio etcetera. She said the children have been very clear that they do not want to see him (although J.B.S. reached out a number of times to his father after the Respondent took this stance). She says that the children have been doing well since they stopped seeing their father (but given recent events with M.A.S. being suspended from school, I am not convinced). She says that she has no conflict with the children (which may be true since there are no restrictions or rules when the children are in her care).
[16] The Applicant has acknowledged that there have been incidents at his home with the children, which led to the children leaving his care earlier than scheduled. He also acknowledged that he could have handled some situations better. The Applicant will also benefit from parenting courses. At least the Applicant assumes some responsibility for the current circumstances of the children. It is also clear that they parties have very different parenting styles, which is not helping these children.
[17] As a result of the parent’s actions, I have made some further orders (below), including moving this matter ahead to trial.
Voice of Child Report
[18] In asking for a VOC report, counsel for the Respondent directed me to section 24(2)(b) of the Children’s Law Reform Act, which provides that in determining the best interest of the child, a court shall consider all of the child’s needs and circumstances, including “the child’s views and preferences, if they can be reasonably ascertained”. While the views and preferences of a 15 year old child would normally be of assistance to the court, I am denying the request. What counsel ignores is the last part of that sentence which states “if they can be reasonably ascertained”. Neither I nor the OCL are of the opinion that it is possible to ascertain the true views of the children, in these circumstances.
[19] The OCL acted for the children for three years in relation to the child protection matter. When requested to represent the children in the family law proceedings, the OCL declined. The OCL set out their reasons in a letter dated August 4, 2015. It is worthwhile to repeat parts of that letter herein:
“The children have been consistent for at least a year that they are tired of being asked questions by professionals, including Ms. Long. The children very much want the conflict between their parents to be concluded.
The OCL has carefully considered whether ongoing representation of M.A.S. and J.B.S. will benefit them and be of significant assistance to the court. We have concluded that OCL involvement will not benefit the children and are, therefore, declining to accept the request for our involvement.
We have not made this decision lightly and would like to provide some explanation for our decision. If the OCL were to represent the children, our role would not be to make a recommendation in their best interests. We would be presenting their views and preferences. We are very concerned that the children will be pressured to express views and preferences and be put squarely in the middle of their parents’ ongoing conflict. The children should not be subject to further inquiries about how much time they want to spend with each parent. Ultimately the court will decide what is in their best interests.
Both parents have expressed concerns about the OCL lawyers assigned to represent M.A.S. and J.B.S. in the child protection proceeding. Although we do not agree with the concerns, ongoing threats to report OCL lawyers and clinicians to their professional bodies is counterproductive and takes the focus away from resolving the issues between the parents.”
[20] Justice Kitely, in her decision in Gajda v. Canepa, [2018] O.J. No. 4534 (S.C.J.) at par 23, further highlights my concern in ordering a VOC report in this case:
The applicant is concerned that the respondent is influencing the children to express a desire to see their father more and, because the voice of the child report is not quote evaluative”, the author will not explore whether the responses are meaningful and well reasoned. I agree that the voice of the child report could be used by a parent to manipulate child to parent what the parent wants. Indeed, there are situations where one parent has alienated a child or has the potential to alienate a child against the other parent and there is a risk that the voice of the child report would serve to further goals of the alien a tour parent. That is not the case here. Both parents enjoy wonderful relationships with their children. There is no suggestion that either is trying to reduce or eliminate the relationship of the other with the children.
[21] In the case before me, a VOC report will do nothing but encourage further manipulation of these children and delay resolution of the issues. As such, I am dismissing the Respondent’s motion for an order requesting that the OCL conduct a Voice of the Child Report. These children will be best served by the matter moving quickly to trial. There are many contentious issues and facts that are best resolved at trial.
Therapy
[22] The Order of Gilmore J, dated February 9, 2017, ordered, on consent, an assessment to determine possible treatment and therapy for the children. This never happened. The parties could not agree on an assessor/therapist. The Respondent had 30 days to investigate alternate assessors and communicate same with the Applicant. Nothing happened.
[23] Since December 2018, when J.B.S. stopped seeing his father, the Applicant has been asking for the Respondent’s consent for the children to see a therapist. The request was also made through counsel. She did not consent. It was only in her responding material for this motion that she ‘advised’ the Applicant that in December, shortly after receiving his request, she took the children to see a therapist. The children have seen this person twice. The Respondent was not prepared to disclose the name or any identifying information about the therapist. She believes that the Applicant would try to sabotage the children’s relationship with the therapist (even though he was the one who made the initial request).
[24] These children would benefit from therapy and if they are prepared to see the current therapist, I do not want to interfere. However, in order for the therapist to be of any assistance to the children the therapist needs a full picture of the issues and the context in which the children are arriving at therapy. I am not going to change the therapist at this time but the Applicant should be given an opportunity to speak to this individual. In my order below, I have set out strict guidelines for BOTH parties to follow, with a copy of this order to be given to the therapist.
Procedural issues:
[25] This motion was scheduled on a regular motion date when it was clear it should have been scheduled it for a long motion. Given the importance of the issues on the motion, I heard the motion today instead of adjourning it to a long motion date. The motion took up most of the day. This just reinforces the recommendation I made to the parties that a case management judge should be assigned to this file. The parties consented to same. As such I would ask the Settlement Conference Judge to consider case managing this file, or to ask the Team Lead to appoint a case management judge to this file. There should be one judge case managing the file and hearing all conference and another judge hearing the motions. I am prepared to hear the motion in this file, but will it up to the Team Lead.
[26] The Applicant has asked for leave to bring a motion on five days’ notice, for contempt regarding access. This is something that should be raised and discussed with the case management judge. This matter should be moved to trial on a fairly expedited basis. The parties need to attend a Settlement Conference in the net short while.
ORDER:
[27] For the reasons set out above, Order to go as follows:
a. The Respondent’s motion for an order requesting a Voice of the Child Report from the Office of the Children’s Lawyer is dismissed.
b. The Respondent’s motion staying the current residential schedule of the children is dismissed.
c. The children shall continue to attend therapy with the current therapist. The Respondent shall provide the name and contact information of the therapist to the Applicant forthwith. The Applicant may call and meet with the therapist on one occasion. Any other contact between the therapist and either party shall only occur at the instigation and request of the therapist. There is no need for either party to attend at the therapist’s office. The Applicant shall drop off and pick up the children outside the office. Neither party shall enter the therapist’s office other than as specifically set out above. The therapy is for the benefit of the children and therefore it shall be closed therapy. The therapist shall not be called as a witness by either party and shall not be asked to provide any information to the parties. A copy of these Reasons and Order shall be provided to the therapist. If either party has any contact with the therapist (other than to pay the bills or as specifically set out herein) a contempt motion may be brought before me. Any cost of the therapy not covered by insurance, shall be shared equally between the parties. The parties shall ensure that the children attend all sessions and adhere to recommendations made by the therapist.
d. The parties shall attend a combined Settlement Conference/Trial Management Conference, on February 15, 2019 at noon. If the parties are unable to attend, they shall file a 14B motion, to be brought to my attention with alternate dates, the dates to be no later than February 22, 2019.
e. Neither party shall discuss the litigation, or any issues between the parties, with the children (this includes not showing the children any communications between the parties and/or the lawyers).
f. The Respondent shall keep the Applicant informed of the children’s education, health and well-fare, including, but not limited to, sending him copies of all communications received from the children’s schools, healthcare providers or anyone else offering services to the children (such as the therapist, tutors, extra-curricular activities etcetera) and advising him of any appointments and the result of same. All communication shall be through email.
g. The Applicant shall be listed as the children’s secondary contact at their schools.
h. All other issues raised in this motion are adjourned to trial, subject to any order by the case management judge.
Shore, J.
Released: January 30, 2019
COURT FILE NO.: FS-12-377455
DATE: 20190130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
B.J.S.
Applicant
– and –
X.Q.Z. (A.K.A .J.Z.)
Respondent
REASONS FOR JUDGMENT
Shore, J.
Released: January 30, 2019