COURT FILE NO.: FS-12-11977-01 DATE: 202005 07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Georgina Evanthia Vasilodimitrakis Applicant – and – Michael Wayne Homme Respondent
Counsel: Farrah Hudani and Christina Doris (acting as agent for Sarah A. Weisman for the motion returnable May 6, 2020 only), for the Applicant Richard M. Gordner, for the Respondent
HEARD BY CONFERENCE CALL: May 6, 2020
REasons on motion BONDY J.
A. Introduction
1) Background
[1] The applicant Georgina Evanthia Vasilodimitrakis ("the applicant" or "the mother") is 56 years of age, and the respondent Michael Wayne Homme ("the respondent" or "the father") is 57 years of age. The parties resided together from 2005 until 2010. They have one biological child, Mileena Evanthia Homme-Vasilodimitrakis ("Mileena"), born April 13, 2006. As is more fully considered below, the applicant mother is the primary residence parent and the respondent father has specified access.
[2] This has been, and remains, a very high conflict case. The most recent litigation relates to the repeated failure of the applicant mother to comply with the access provisions in several court orders.
[3] These are my reasons for the threshold issue of urgency regarding two motions before me on May 6, 2020.
[4] The first was a motion brought by the respondent father for compliance with the court ordered access. He seeks extensive relief as a result of the failure of the applicant mother to comply with those court orders. That relief includes, without limitation, custody or joint custody of Mileena, primary residence of Mileena with the respondent father, and a police enforcement clause. That motion was triaged and approved to proceed.
[5] The second motion was brought by the mother in reply. The applicant mother maintains that the matter is no longer urgent because she has restored access. The applicant mother also maintains that she is not at fault for the failure of the scheduled April 24, 2020 access to have taken place. The applicant mother also requests, in the alternative, that the motion be dismissed because of the respondent father’s failure to make full disclosure in the materials that he filed. In addition, the applicant mother requested that if the motion is to proceed, an adjournment be granted to allow for cross-examination on the affidavits, the appointment of the Office of the Children’s Lawyer (“OCL”), or in the alternative, the appointment of private counsel pursuant to s. 64 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
2) The issues
[6] By way of background, Mileena suffers from "oligoarticular juvenile idiopathic arthritis" and as part of that condition, has developed "uveitis" which has affected her eyes. As a result, she is required to take medications which include, without limitation, a weekly injection of methotrexate. Methotrexate suppresses her immune system.
[7] Mileena is under the care of nine different doctors as a result of these conditions.
[8] There is consensus that Mileena is medically fragile and does have an unusually high risk to COVID-19 as a result of her conditions.
[9] The applicant mother had taken the position in the recent litigation that there should be no face-to-face access between Mileena and her father. As said above, the applicant mother has, however, now resiled from that position and restored access in accordance with the court orders.
3) The litigation history
a) The status quo
[10] On November 20, 2014, Gates J. made an order granting the applicant mother custody with supervised access to the respondent father on alternate weekends.
[11] The applicant mother has been the custodial parent and primary residence parent ever since. The applicant mother, Mileena, and the applicant mother's 93-year-old father all live together in the same home.
[12] On August 6, 2015, Carey J. made an order confirming the applicant mother's custody and primary residence, but giving the respondent father unsupervised access as follows:
a. Alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. (respondent shall return the child on Saturday at 4:00 p.m. for her injection of methotrexate and he shall give the child her folic acid pill each Saturday at 4:00 p.m.). b. Every Wednesday from 4:00 p.m. to 7:00 p.m.
[13] Access takes place in the respondent father's home. He lives there alone.
[14] That access schedule was observed until March 24, 2020, when the applicant's counsel wrote respondent's counsel advising that the applicant mother would no longer allow face-to-face access between Mileena and her father because of Mileena's vulnerability to the COVID-19 virus.
b) The recent litigation history
[15] By order of Hebner J. dated March 31, 2020, two motions were approved to be heard in this matter on an emergency basis.
[16] The first was a motion brought by the applicant mother to suspend the respondent father's access to Mileena for three weeks due to Mileena’s unusually high risk from the COVID-19 virus. The applicant mother also sought an automatic review of that access suspension on April 17, 2020, and any other date ordered by the court. In addition, the applicant sought an order that during the access suspension, the respondent's access be by way of video access. Finally, she sought an order that any missed access be made up prior to December 31, 2020.
[17] The second motion was the respondent father's cross motion to continue access in accordance with the existing court order.
[18] The two motions were heard by me. I ordered the applicant to resume Mileena’s access to her father.
[19] In my reasons for coming to that conclusion, I found that both parents were far more focused on venting their dislike for the other than they were on Mileena’s safety. Both were aware that Mileena’s medical conditions and treatment for those conditions put her at particularly high risk from the COVID-19 virus. Notwithstanding, the applicant mother continued to operate a tea room out of her house. The respondent father took Mileena to a grocery store and possibly other stores.
[20] I was also not impressed with the evidence of either party at the hearing. The evidence of each was often internally inconsistent as to important matters. On several occasions both parties failed to disclose important information. As a result, it was difficult to make many of the necessary findings of fact.
[21] The applicant mother sought leave to appeal that decision and an interim stay ending the hearing of the motion for leave. To be clear, that was her right. On April 22, 2020, Mitrow J. sitting as a judge of the Ontario Divisional Court dismissed the motion for stay. The applicant mother has since abandoned her appeal.
[22] However, notwithstanding three very clear court orders, access was not restored on April 24, 2020. That prompted the respondent father to bring his current motion.
c) The restoration of access
[23] As to the April 24, 2020 access, the position of the father is simple and straightforward. That is that access did not occur as scheduled.
[24] The applicant mother states that the respondent father did not attend to pickup Mileena when scheduled to do so, and so the fault for the failure of access to occur lies with the father.
[25] The respondent father replied that there was no point in attending because Mileena had already told him that she did not want to attend on the access visit. Accordingly, he reasons that the applicant mother is responsible for the failure of access to have occurred.
[26] In the end, I was unable to determine what actually happened. I find that the father’s assertion that the mother had improperly manipulated Mileena into telling the respondent that she did not want to go for the access visit possible. I also find that it was equally possible that it was Mileena’s decision. A decision which the respondent father had undertaken to Mitrow J. to respect.
[27] What is clear is that neither the applicant or the respondent made any attempt to contact the other with respect to that access visit. Accordingly, it is impossible for me to lay blame for the failure of that visit to occur. It may be that a communication failure was responsible.
[28] What is clear is that the May 1, 2020 scheduled access visit did occur.
[29] Given the applicant’s record for ensuring access visits occurred during the previous five years, I find it likely that access will continue now that the applicant has reinstated it. In other words, it appears that the status quo has been restored.
[30] Importantly, restoration of access is where this process began.
[31] Rather than the court simply guessing as to whether or not access will continue as scheduled, it seems to me more appropriate to assume it will, but leave the option open for the respondent father to bring matter back to court in the event of a further breach of the access order. There will be no guesswork involved if that occurs. This issue is more fully considered immediately below.
4) Urgency
a) Mileena’s best interests
[32] The court’s concern is only with Mileena’s best interests. In the circumstances, I find that Mileena’s best interests will be served by the court ensuring that both parents are involved in her life to the greatest extent possible. On the basis of the available record, I would be reluctant to trust either parent without oversight by the other.
[33] The status quo has now been restored. That status quo worked quite well for five years. Mileena seems to have thrived during that status quo. There was no evidence to suggest that it will not work going forward providing both parties obey court orders.
[34] I reiterate from my April 7, 2020 decision that Mileena has essentially become cannon fodder in the bitter dispute between her parents. That must stop. This issue is more fully considered below in the context of the path forward.
[35] Equally important, the language of Pazaratz J., at para. 10 of the decision Ribeiro v. Wright, 2020 ONSC 1829, quoted in my April 7, 2020 decision bears repeating. "In troubling and disorienting times, children need the love, guidance and emotional support of both parents" (emphasis in original). It seems to me that important goal will be best served by a return to the status quo.
[36] In this case, the status quo was unilaterally and deliberately upset by the applicant mother. She resorted to self-help. She did not resort to the courts for permission. That was clearly wrong of the applicant mother.
[37] Notwithstanding, I do not conclude that wrong will be corrected by the court again upsetting that status quo now that it has been restored. Mileena deserves predictability in her life. The restoration of the status quo has no doubt provided that.
b) Conclusions as to urgency
[38] For the above reasons, I do not find the respondent father’s motion urgent in the circumstances that exist as of today.
[39] Notwithstanding, I find it appropriate to offer the parties the following guidance. If read and observed by the parties, it may help avoid any further unnecessary trauma to Mileena.
5) The path forward
a) The conduct of the parties
[40] Each of the parties need to understand the horrific impact their conduct is having upon Mileena. As said in my reasons issued April 7, 2020, above all Mileena should be left out of this parental conflict. She is a child.
[41] Both parents have put Mileena in a situation where she has had to self-educate about the COVID-19 crisis. She was concerned enough about the conduct of her mother and father to seek out independent legal counsel.
[42] I find it tragic that any 14-year-old child would find it necessary to retain legal counsel in order to protect their interests in a squabble between their parents. It is a parent’s job to take care of their children. No child should have to fend for themselves.
[43] Further, in order for that counsel to do her job, it was necessary for counsel to discuss much of the litigation with Mileena. That was a result that I wanted to avoid at all costs. Mileena should not have been exposed to the dirty details of this conflict. Parents should protect children from their conflict, not engage them in it.
[44] To be clear, I am not suggesting Mileena’s counsel acted inappropriately. Once retained, counsel’s only obligation was to Mileena. I am aware that in order to obtain informed instructions from her it was necessary for counsel to reasonably inform Mileena regarding the litigation.
[45] Each party accuses the other of continuing to flaunt court orders, especially my order of April 7, 2020. For example, after my order was made, Mileena went for a walk outside with her father. By the terms of my April 7, 2020 order, the applicant mother was not supposed to allow Mileena out of the house. The respondent father should not have condoned it.
[46] Each of the parties must understand that deliberately flaunting the court order can result in contempt proceedings which can include fines and even jail. If the parties fail to protect Mileena, then the court will.
b) Mileena’s views and preferences
[47] As to Mileena’s views and preferences, I make the following observations.
[48] The first is that Mileena’s views and preferences do have a place in this litigation. Those views and preferences would be given weight commensurate with things such as her age, level of maturity, and most importantly whether or not those views and preferences are the product of pressure from either of the parties.
[49] That said, Mileena’s views and preferences are but one factor that must be considered by the judge in order to assemble a complete and comprehensive factual matrix. It is only when all of the factors affecting Mileena’s best interests are considered that those best interests will be appropriately served. Said another way, although Mileena is entitled to input into where she lives, that is but one of many factors. The ultimate decision is up to the judge.
[50] Sadly, if the applicant mother continues to resist court orders, a police enforcement clause may be necessary. I agree with her counsel’s submissions that a police enforcement order would no doubt significantly traumatize Mileena. It is for that reason police enforcement orders are seldom used. That said, they are necessary when the deleterious effects of the failure of a parent to follow clear court orders outweigh the potential trauma to the child. If the applicant mother cares for Mileena, she will understand that and protect Mileena from that potential trauma by ensuring compliance with court orders.
[51] The applicant mother must understand that, like all parents, she has a positive obligation to ensure that Mileena attends with her father in accordance with existing court orders. That is even when Mileena resists: see Hatcher v. Hatcher, [2009] O.J. No. 1343, 68 R.F.L. (6th) 179, at para. 17; Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.), at para. 8. Importantly, the decision is not to be left with the child: see Hatcher, at para 28; B.K. v. A.P., [2005] O.J. No. 3334 (S.C.), at para. 24.
[52] When a child refuses to attend with the other parent in accordance with the terms of a court order, the parent with whom the child is then staying should treat the child the same as a child who, for example, refuses to go to school or otherwise misbehaves: see Hatcher at para. 28; Geremia v. Harb, [2007] O.J. No. 305, 154 A.C.W.S. (3d) 1128, 73 W.C.B. (2b) 395, at para. 44. At a minimum, that parent ought to do the following:
i. have a discussion with the child to determine why he or she does not want to go; ii. have a communication with the other parent to advise of the difficulty and discuss how it might be resolved; iii. offer the child an incentive to go, or some form of discipline should he or she continue to refuse.
See Jackscha v. Funnell, 2012 ONSC 4234, [2012] O.J. No. 3955, at para. 17.
[53] The applicant mother must also understand that if she continues to flaunt court orders, the issue of Mileena’s primary residence and whether or not the applicant mother will have access will be live issues in future litigation.
[54] Prior to leaving this issue, I would like to reiterate that the applicant mother is not the sole source of conflict in this matter. The record before me also supports the conclusion that the applicant father has dramatically failed to appropriately exercise his duties as one of Mileena’s two parents.
B. Order
[55] For all of these reasons, order to go as follows:
I no longer find the matter urgent because the applicant, Georgina Evanthia Vasilodimitrakis, has restored the access of the child, Mileena Evanthia Homme-Vasilodimitrakis born April 13, 2006, to the respondent Michael Wayne Homme, in accordance with the order of Carey J. dated August 6, 2015, as per my order of April 7, 2020 and the order of Mitrow J. dated April 22, 2020.
The respondent’s motion may be returned to again be triaged for urgency in the event that the applicant at any time in the future fails to comply with the provisions of the terms of any of those three orders.
On consent, paragraph number 2(b) of my April 7, 2020 order shall be amended to read as follows:
In order to minimize risk of infection from the COVID-19 virus to Mileena, until further order of the court the parties shall:
b) Not allow any of the occupants of the respective homes, including themselves, to leave the home and return except:
i. in the case of a dire emergency; or ii. on written medical advice; or iii. for purposes of pickup and drop-off of Mileena; or iv. for purposes of Mileena attending for blood work at a lab test centre; or v. for purposes of the parties walking outside with Mileena providing they remain at least six (6) feet away from other persons, all wear masks, and are diligent with handwashing before and after the walk.
Subject to paragraph three immediately above, my order of April 7, 2020 shall remain in full force and effect until further order of the court.
There will be no order as to costs because the motions were not heard.
Christopher M. Bondy “Electronically signed and released by Bondy J. ” Justice
Released: May 7, 2020