Court File and Parties

Court File No.: FS-14-19552-001 Date: 2020-02-14 Ontario Superior Court of Justice

Between: J.J.S., Applicant – and – P.P., Respondent

Counsel: Not present (for J.J.S.) Elissa Boyle, for P.P.

Heard: February 13, 2020

Kristjanson J.

Endorsement

OVERVIEW

[1] The main issue is whether the custody and access provisions of a consent final order should be varied on an interim basis pending trial on a motion to change, based on the best interests of the child and concerns about the father’s behaviour.

BACKGROUND FACTS

[2] The mother, P.P., brings this motion seeking interim changes to a consent final order of Justice Moore dated April 4, 2017. There is one child, A.B., who is now 9 years old. The 2017 Final Order provides for joint custody, with A.B. residing primarily with the mother, with the mother having primary decision-making for issues relating to A.B.’s health care, and joint decision-making in other areas.

[3] On an interim basis, the mother seeks sole custody and decision-making on all issues, and suspension of access pending co-operation by the father with investigations being conducted by the Catholic Children’s Aid Society (“CCAS”) and the Office of the Children’s Lawyer (“OCL”).

[4] The father has had notice of the motion since November 2019. He has not filed any materials in response and did not attend on the motion. The motion was raised with the father’s lawyer in November 2019. The father’s lawyer requested that the motion be heard in February due to his schedule. The father was properly served with the motion materials. At the outset of the hearing on February 13, the father’s counsel sought to be removed from the record; I granted that motion. The father did not attend in court today. Given the significant delay, the best interests of A.B., and the failure of the father to participate in any way in this hearing, I proceeded to hear the motion.

[5] On the uncontroverted evidence before me, I find that there has been a material change in circumstances, and the status quo joint custody, joint decision-making, and access schedule, are not in A.B.’s best interests.

Father’s Erratic Access and Behaviour

[6] The father has missed a significant number of access visits including:

(a) April 2019 – missed 7 of 11 access days, pulled A.B. from school early one day;

(b) May 2019 – missed access the entire month, without communication to the mother;

(c) June 2019 – missed 3 of 11 access days, withheld A.B. from school and from return to mother as required for 4 days;

(d) July and August –two months with no access, no communication, no explanation;

(e) September 2019 – missed 9 access days, and withheld from school one day after overnight access;

(f) October 2019 –out of the country 27 days; exercised only 1 access day, signed A.B. out of school early;

(g) November 2019 – missed 7 access days – on the two days the father had A.B. overnight before school, A.B. was absent once and late once; and

(h) December 2019 – missed 4 access visits; did not bring A.B. to school on several days; refused to return A.B. to mother as required for several days requiring police involvement.

[7] On December 20, the father advised the mother that someone was out to get him, that he and the mother were targeted, that her lawyer is being arrested; that he has involved the FBI and Interpol.

[8] On December 23, the CCAS advised the mother that the police had referred the family to the CCAS for intervention.

[9] On December 24, the father tried to force his way into the mother’s home, yelling, and the police were called. On December 26, the father threatened to take A.B. from the mother “forever”. On December 28, the father e-mailed the mother in very concerning language.

[10] The mother reports that the CCAS worker interviewed A.B., who advised that he has concerns about spending time with his father and paternal grandmother. I direct release of the CCAS file as set out in the Order below.

[11] On January 7, 2020, a CCAS worker advised the mother that there were safety concerns regarding A.B.

[12] On January 23, when A.B. was on the school bus en route to his mother’s home, the father stopped the bus and physically removed A.B. from the bus. He refused to contact the mother, with whom A.B. was supposed to be residing. The mother feared for A.B.’s safety.

Third Parties

[13] In December 2018, the father picked A.B. up from school for his access time. Instead, the father left A.B. with his neighbours for the weekend and departed for Miami. The mother had no notice or knowledge and did not know the neighbours. A.B. advised the mother on the Monday when he returned to her care. This is in violation of the right of first refusal terms of the 2017 Final Order. This demonstrates a prioritizing of the father’s interests (a trip to Miami, on his access time) over that of the child (leaving A.B. with strangers, without advising the mother, and depriving the child of access to his father).

[14] On January 28, 2020 the paternal grandmother, who looks after A.B. when he is with his father, called the mother and accused her of being a whore, using drugs, and referring to the mother’s vagina. This is troubling behaviour.

School Issues

[15] A significant problem is that the father does not prioritize A.B.’s education and is not responsive to concerns regarding A.B.’s learning difficulties. The father consistently withholds A.B. from school, brings him late, or signs him out early, and disregards the advice of the CCAS, the school and his pediatrician about the learning difficulties and support required.

[16] The CCAS investigated concerns about A.B.’s school attendance in 2017 and advised the father about the requirement for A.B. to attend school. In March 2018, A.B.’s principal referred A.B.’s attendance to Social Work Services, and in April 2018, the Principal wrote expressing strong concerns about A.B.’s absences and late attendance.

[17] The school recommended a developmental assessment as part of an Individual Education Plan (“IEP”) for A.B., given the school’s concerns with a possible developmental delay affecting his reading and writing skills. The mother pursued a referral to a paediatrician, who noted that A.B.s difficulty may be attributed in part to his irregular school attendance, but also recommended that A.B. would benefit from a formal Psychoeducational assessment, and a subsequent IEP.

[18] The father has refused to consent to the Psychoeducational assessment contrary to the advice of the paediatrician and the recommendation of the school.

Father’s Refusal to Participate in OCL Section 112 Investigation

[19] On April 10, 2019, Justice Gilmore requested the assistance of the OCL. An OCL Clinical Investigator commenced a section 112 investigation and report. The father refused to participate in the investigation; the OCL report shows 15 contacts between the Clinical Investigator and the father or his lawyer, attempting to interview the father. In addition, the father refused to consent to the OCL investigator interviewing his son. As a result, the OCL investigator interviewed and observed the mother and A.B., and contacted collaterals, but ultimately filed a discontinued report given the father’s failure to co-operate. Since the report is discontinued, the investigator refers to “clinical impressions” rather than recommendations.

[20] The OCL report shows the following:

(a) The investigator reviewed school attendance records, which demonstrate that 40% or more of the time he is with his father, A.B. either misses school or is late. The OCL investigator noted that during the investigation, the father missed a significant number of his access days with A.B., kept him extra days, and repeatedly did not bring him to school during the father’s access time. The OCL’s clinical impression was that an order was warranted: (a) preventing the father from removing A.B. from school, given the history of the father signing A.B. out of school early on a routine basis, and (b) eliminating overnights prior to a school day, given the pattern of lateness and absences when with father.

(b) The OCL’s clinical impression was that Police enforcement of the custody/access order appears warranted to ensure A.B. is returned from the father’s care.

(c) The school says A.B. has some delayed learning with respect to reading and writing and are concerned with the absences. In March 2018 the principal requested social work services to assist with improving A.B.’s school attendance. The father refuses to address the issue.

(d) The school has recommended a developmental assessment, as part of developing an IEP, but the father has refused to provide consent. The investigator’s clinical impression was that sole custody to the mother appears to be indicated to allow for A.B.’s needs to be met.

(e) There were no concerns with the mother and A.B.

Father’s Refusal to Participate in CCAS Investigation

[21] The CCAS is investigating concerns of emotional harm to A.B. as a result of post-separation caregiver conflict. A February 12, 2020 letter from a CCAS Child Protection Worker and a Supervisor responsible for the investigation and assessment was sent to both parents. The letter confirms the CCAS’s investigation and advises that the father “has refused to participate at this time with the investigation.” The investigation is continuing.

THE ISSUES

[22] The major issues are:

(1) Should the mother be given interim sole custody and decision-making authority on all issues, subject to a duty to consult?

(2) Should the court suspend the father’s access on an interim basis, and if so, on what terms?

(3) Should the court order financial disclosure and if so, on what terms?

Issue #1: Should the mother be given interim sole custody and decision-making authority on all issues, subject to a duty to consult?

[23] I find there to be material changes in circumstances since the 2017 Final Order that affect the best interests of the child. The mother has met her burden of establishing that the existing parenting arrangements are no longer in A.B.’s best interests on an interim basis. As a result, pursuant to s. 29 of the Children’s Law Reform Act, R.S.O. 1990, c. 12, I vary the Final Order on an interim basis to provide sole custody to the mother, with sole decision-making authority subject to a duty to consult, and other relief as set out in the Order.

[24] While a court must be slow to interfere with final custody and access orders on an interim basis, the uncontroverted evidence before me establishes that the father is not acting in the best interests of A.B., is acting in a manner that is harming A.B., and is not capable of communicating with the mother about decisions that must be made about A.B. The material changes in circumstances include:

(a) the father’s withholding the child from school causing significant absences and chronic lateness, which the school and CCAS have identified as problematic and contributing to A.B.’s difficulties in school;

(b) the father’s refusal to consent to a psychoeducational assessment recommended for A.B.’s identified learning difficulties, contrary to medical advice and that of the school. This refusal is preventing the implementation of an IEP;

(c) the child is suffering academically as a result of the father’s failure to prioritize his education;

(d) the father’s refusal to participate in both the OCL s. 112 investigation, and a CCAS investigation;

(e) the withholding of consent to allow the OCL to interview the child. The OCL is in a position to provide the court with information about the child’s views and preferences, and the OCL may provide recommendations which include the child’s views and preferences;

(f) the OCL clinical impression that sole custody and decision-making to the mother is advisable given the significant absences, lateness, and concerns that A.B. requires a psychoeducational assessment to which the father refuses to consent;

(g) leaving the child with third parties when travelling out of the country, and failing to advise the mother;

(h) the father’s threats to the mother;

(i) the father’s increasingly erratic behaviour;

(j) the father’s failure to exercise access for significant periods, without communication, thus confusing the child;

(k) the father’s failure to return the child after access visits; and

(l) there is a high level of conflict between the parties. Because of the conflict, attributable to the father, the parties cannot make decisions jointly and cannot communicate or discuss parenting issues.

[25] I find these to be compelling circumstances clearly adversely affecting A.B.’s best interests based on new and uncontroverted evidence of material changes which require an interim change to custody and access, considering the child's best interests by reference to the factors set out in section 24 of the Children's Law Reform Act ("CLRA"). The Supreme Court of Canada has held that a child’s best interests must be ascertained from the perspective of the child. Parental preferences and rights do not play a role in the analysis except to the extent necessary to ensure the best interests of the child: Gordon v. Goertz, [1996] 2 SCR 27 para. 49.

[26] I find that the best interests of the child must also be interpreted in a manner consistent with Articles 12, 23 and 28 of the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, which Canada signed on May 28, 1990 and ratified on December 13, 1991 (“Child Convention”). The use of the Child Convention in interpreting the best interests of the child was endorsed by the Supreme Court of Canada in A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, 2009 SCC 30, paras. 92-93.

[27] In Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, leave to appeal to the SCC refused, the Court of Appeal emphasizes that because of children’s vulnerability, courts have a duty to recognize, advance and protect their interests, holding at para. 64 that:

Children are among the most vulnerable members of society. Courts, administrative authorities and legislative bodies have a duty to recognize, advance and protect their interests. When children are the subject of a custody dispute or child protection proceedings, they are at their most vulnerable.

[28] Article 23 of the Child Convention applies to children with disabilities; it serves as an interpretive source when addressing the best interests of the child. It provides:

Article 23

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.

[29] Article 28 of the Child Convention recognizes the right of a child to education.

[30] The court must consider the failure of the father to consent to a psychoeducational assessment, required as part of the IEP, as part of the child’s circumstances. The assessment will allow A.B. to fully develop regardless of any learning disability or difficulties, in conditions which ensure dignity, promote self-reliance and facilitate his active participation in his school community. In addition, the father’s actions in withholding A.B. from school and removing him from school are interfering with A.B.’s right to education.

[31] The importance of hearing, and placing appropriate weight on, the views of the child is a critical development in family law. Article 12 of the Child Convention provides:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

[32] Hearing the child’s views and preferences and incorporating those views in judicial decision-making about matters affecting a child’s best interests dovetails with section 24(2)(b) of the CLRA. It is important to recognize the agency of children, and where possible, to hear their voice before making custody and access decisions which have a profound effect on the life of a child.

[33] The benefits to judicial decision-making of hearing a child’s voice were set out by Martinson J. in G. (B.J.) v. G. (D.L.), 2010 YKSC 44 as follows at paras. 21-22:

[21] Obtaining information of all sorts from children, including younger children, on a wide range of topics relevant to the dispute, can lead to better decisions for children that have a greater chance of working successfully. They have important information to offer about such things as schedules, including time spent with each parent, that work for them, extra-curricular activities and lessons, vacations, schools, and exchanges between their two homes and how these work best. They can also speak about what their life is like from their point of view, including the impact of the separation on them as well as the impact of the conduct of their parents.

[22] Receiving children’s input early in the process, and throughout as appropriate, can reduce conflict by focusing or refocusing matters on the children and what is important to them. It can reduce the intensity and duration of the conflict and enhance conciliation between parents so that they can communicate more effectively for the benefit of their child. When children are actively involved in problem solving and given recognition that their ideas are important and are being heard, they are empowered and their confidence and self-esteem grow. They feel that they have been treated with dignity. In addition, children’s participation in the decision-making process correlates positively with their ability to adapt to a newly reconfigured family.

[34] In refusing to consent to the OCL interviewing A.B., the father is preventing the Court from hearing A.B.s views and preferences, which are essential to custody and access issues on the motion to change.

Issue #2: Should the court suspend the father’s access on an interim basis, and if so, on what terms?

[35] I am suspending the father’s access pending co-operation with the CCAS in its investigation, and pending co-operation with the OCL in its report. The father cannot undermine the child’s safety, which is part of the CCAS investigation, or well-being, without consequences. I am also very concerned with the father’s choice to travel to Miami on his access weekend while leaving A.B. in the care of his neighbours, without advising the mother, which represents an inability of the father to prioritize A.B.’s needs over his own desires. I am also concerned with the father’s significant failure to exercise access, without communication with the mother or child for months at a time, inevitably causing confusion for the child and depriving the child of his right of access. I am concerned with his recent failures to return the child to the mother, and the threat to remove the child from the mother “forever.” For these reasons, the father’s access with A.B. is suspended pending his co-operation with the CCAS in its ongoing investigation and co-operation with the OCL in its report. If necessary, I dispense with the father’s consent to an interview with A.B. by the OCL.

[36] If the Applicant co-operates with the CCAS and the OCL, he may bring a motion to reinstate access. At that time, the issue of whether the father’s overnight access on school nights should be eliminated, will be determined.

[37] In order that this matter be finally determined on evidence, quickly, and given the significant credibility issues, I have directed that a mini-trial on the parenting issues on the motion to change be held in October, for 3 days, in which all evidence in-chief will be set out in affidavits, with cross-examinations before the trial judge.

Issue #3: Disclosure

[38] The motion to change also raises issues regarding child support, which was set on the father’s imputed income. Paragraph 28 of the 2017 Final Order requires the father to provide the mother with information sufficient to disclose his income from all sources on an annual basis. The father has failed to do so since the 2017 Final Order. As a result, I make the disclosure order.

Costs

[39] On January 28, 2020, the mother argued an urgent motion before Justice Stewart for police enforcement of custody and access, given the father’s behaviour in failing to return A.B. to the mother as required. The father did not file any materials on that motion. His lawyer argued for an adjournment, which was denied. Justice Steward made the police enforcement order as requested by the mother, reserving costs to today. The mother seeks costs on a full recovery basis of the police enforcement motion of $5,186.35. The mother seeks costs of today’s motion on a full recovery basis of $7,627.17.

[40] Costs orders are in the discretion of the court pursuant to Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at para. 10 held that modern family cost rules are designed for the fundamental purposes of: (1) partially indemnifying successful litigants; (2) encouraging settlement, (3) discouraging and sanctioning inappropriate behaviour by litigants, and (4) ensuring, in accordance with Rule 2(2) of the Family Law Rules, that cases are dealt with justly. Reasonableness and proportionality are the touchstone considerations to be applied in fixing costs.

[41] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful litigant. An award of costs is subject to the factors listed in Rule 24(12) of the Family Law Rules including the importance and complexity of the issues, the reasonableness of each party’s behaviour in the case, the lawyer’s rates, the time properly spent on the case, the expenses, and any other relevant matter. Other factors include Rule 24(8) (bad faith) of the Family Law Rules, Rule 18(14) (offers to settle) of the Family Law Rules and the reasonableness of the costs sought by the successful party: Mattina para. 12-13.

[42] The Family Law Rules only expressly contemplate full recovery costs where a party has behaved unreasonably, in bad faith, or has beat an Offer to Settle under R.18(14) of the Family Law Rules: Mattina, para. 15.

[43] There are no Offers to Settle here. I find that the father’s conduct in this litigation has been unreasonable; he has refused to participate, has failed to file materials; has put the mother to significant cost by his behaviour; and a significant costs award is required to discourage and sanction his improper behaviour. In the circumstances, I find it reasonable and proportional to award the mother costs of $12,000.00 for today’s motion and the motion before Justice Stewart, inclusive of HST and disbursements.

ORDER

[44] The final Order in this matter is set out below as edited for publication by removing the name and birthdate of the child A.B., anonymizing the names of the parents, and not including Schedule “A” (disclosure):

(1) Paragraph 1 of the Final Order of the Honourable Mr. Justice Moore, dated April 4, 2017, bearing Court File number FS-14-19552 (“Final Order”) is amended as follows:

The Respondent, P.P. shall have interim sole custody of A.B.

(2) The following paragraphs of the Final Order are hereby suspended in accordance with paragraphs 4 and 5 until further court order: 3, 4, 5, 6, 7, 9, 17 (h), (i) and (j), 18, 19, 37, 38 and 39.

(3) Paragraph 8 of the Final Order is amended as follows:

The Respondent shall have interim final decision-making authority with respect to all issues regarding A.B.’s welfare. Before making such a decision, the Respondent shall consult by e-mail with the Applicant. The Applicant has 48 hours to respond, failing which the Respondent may proceed with her decision. If the Applicant responds, the Respondent must seriously consider the issues raised by the Applicant before making her decision.

(4) The Applicant’s access with A.B. is suspended pending his co-operation with CCAS in its ongoing investigation and pending the Applicant’s co-operation with the Office of the Children’s Lawyer.

(5) If the Applicant co-operates with the CCAS and the Office of the Children’s Lawyer, he may bring a motion to reinstate access and the suspended paragraphs of the Final Order.

(6) The CCAS, on an urgent basis, is to release the complete and unredacted file of the CCAS, pertaining to their involvement with respect to A.B.. to counsel for the Respondent. The CCAS is requested to make available a copy for review by the Applicant on the premises of the Society. If the Applicant retains counsel, then the file is to be released to his counsel. No party or counsel may provide the CCAS materials to any third party except to an expert retained for the purposes of litigation and shall not use the materials for any purpose except for filing the materials in the court record of this litigation.

(7) This matter shall be referred to the Office of the Children’s Lawyer to provide such services, under s. 89 (3.1) and s. 112 of the Courts of Justice Act, as she deems appropriate for A.B. The Court requests the OCL to consider completing the Discontinued s.112 Report of the Children’s Lawyer dated July 24, 2019. If necessary, the Court orders that the Applicant’s consent to enable A.B. to be interviewed by the Office of the Children’s Lawyer is dispensed with.

(8) The Applicant is ordered not to remove A.B. from the school bus.

(9) The Applicant is ordered not to remove A.B. from his school, St. Robert Catholic School, without the prior written permission of the Respondent.

(10) The Respondent shall be permitted to travel with A.B. outside of Canada, without the Applicant’s written consent.

(11) The Respondent shall hold A.B.’s passport.

(12) The Applicant shall be not travel outside of Canada with A.B. without the Respondent’s prior written consent.

(13) The Applicant shall produce the disclosure listed at Schedule “A”, within 45 days of this Order.

(14) The Respondent shall serve her Trial Scheduling Endorsement Form, by no later than May 4, 2020. The Applicant shall complete and serve the Trial Scheduling Endorsement Form by May 11, 2020.

(15) The parties shall serve and file Settlement Conference Briefs including Offers to Settle, and Trial Scheduling Endorsement forms, as required by the Family Law Rules.

(16) A combined Settlement Conference and Trial Management Conference will be held on May 15, 2020 at 10:00 a.m.

(17) The Trial of the parenting issues on the Motion to Change is scheduled for three days in the week of October 26, 2020. Evidence in-chief will proceed by way of Affidavit, with cross-examination during Trial.

(18) The Respondent will deliver any Affidavit evidence or expert report that she intends to rely upon at Trial by June 26, 2020.

(19) The Applicant will deliver any Affidavit evidence or expert report that he intends to rely upon at Trial by August 28, 2020.

(20) The Respondent will deliver any Reply Affidavits or expert reports by no later than September 18, 2020.

(21) The Applicant is to pay to the Respondent within 30 days the costs of this motion and the motion of January 28, 2020 before Justice Stewart, in the amount of $12,000.00 inclusive of HST and disbursements.

(22) This Order bears interest at the rate of 2 per cent per annum on any payment or payments in respect of which there is a default from the date of default.

(23) The Respondent is to provide his mailing address, phone number and e-mail address to the Family Office within 10 days.

(24) The approval of this Order as to form and content by J.J.S. is dispensed with.

Kristjanson J.

Released: February 14, 2020