Court File and Parties

COURT FILE NO.: FC-14-1465-01 DATE: 20200710 CORRECTED DATE : 20200713 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Frank Psaila, Applicant AND: Edyta Sandurska, Respondent

BEFORE: The Honourable Mr. Justice J.P.L McDermot

COUNSEL: Ladan Korhani, Counsel for the Applicant Ashley McInnis, Counsel for the Respondent

HEARD: July 10, 2020

Corrected Endorsement: The text of the original Endorsement was corrected on July 13, 2020 and the description of the corrections are appended.

Endorsement

[1] This was a motion brought by the Respondent Mother for a return to a long-standing week about time sharing arrangement which was agreed to by the parties when they separated five years ago.

[2] These parties separated in 2014. They have two children, Brianne, who is 10 and Kylie who is 7. As noted, for the past five years these children have lived in a week about arrangement with both parties. That shared arrangement is reflected in a final consent order of Vallee J. dated November 13, 2019.

[3] At least, that equal time sharing was the case until April of this year. On April 10, 2020, when the Respondent Mother came to pick Brianne up, she asked to stay with her father for a few more days. Ms. Sandurska says that she said no, but the Applicant Father refused to support Brianne’s return to her mother’s care and the child ended up staying with her father for her week. When she came to pick up the child on April 24, 2020, Mr. Psaila told the Respondent Mother that Brianne was refusing to leave his residence and that she was mad at her. Since then Brianne has remained in the care of Mr. Psaila.

[4] On May 10, 2020, Mr. Psaila overheld in respect of Kylie, stating that she “chose to stay here with us.” He continued to overhold until the request for an urgent motion was served on him; after that, Kylie returned to the week about arrangement. Brianne remains with the Applicant Father.

[5] Ms. Sandurska moves for an order for an immediate return by Brianne to the week about arrangement contained in the Vallee J. final order. Mr. Psaila brings a counter motion requesting that access be set by either the Office of the Children’s Lawyer or the child’s therapist. Alternatively, Ms. Korhani requests an order for the adjournment of the motion until a comprehensive report can be obtained from Brianne’s psychotherapist.

Analysis

[6] As the Respondent Mother requests a return to the final order and the long-term status quo, the dismissal of the Respondent Mother’s motion would result in a change to the final order made by Vallee J. on November 13, 2019. The issue is therefore whether there are grounds to order a temporary change in that final order.

[7] Mr. Psaila seeks to change the long-term shared custody arrangement based upon risk to the child from the Respondent Mother’s behaviour, which he says is abusive and has resulted in fear and anxiety for Brianne. He also says that Ms. Sandurska’s mistreatment of Brianne has resulted in a serious antipathy against her mother by Brianne, and that Brianne will not return to her mother’s care. In fact, he says that Brianne has threatened to run away if she is forced to go back or alternatively self-harm.

[8] The Applicant’s argument also raises the issues of Brianne’s views and preferences and whether this is sufficient to permit the court to change the long-term status quo of week about parenting.

[9] Ms. Korhani says that the court should consider the best interests of the children under s. 29 of the Children’s Law Reform Act in determining whether there should be an interim change in the final order. I agree that best interests of the children as determined under that section are the ultimate arbiter of whether the week about comes to an end.

[10] However, more is required in the case of a temporary change to a final court order and lengthy status quo. This is partly because the court is usually addressing this issue through untested and unreliable affidavit evidence that is often conflicting, and impossible to reconcile. As well, the final arrangement sought to be changed is also presumed to be reflective of what the parties thought the best interests of the children were at the time that the agreement was struck. For example, in the present case the parties agreed in November 2019 that the shared arrangement that had subsisted since separation in 2014 continued to be in the best interests of the children; that agreement, presumed to be a considered and rational decision by the parties at the time, is not easily tampered with.

[11] Therefore, for an interim change in custody and access to take place, the court must find that two factors are satisfied:

a. There must have been a material change in circumstances permitting the court to make a change: see s. 24 of the CLRA; and

b. If that material change is proven, there must be sufficiently compelling circumstances to make that change in custody: see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda, 2013 ONSC 7869, Green v. Cairns and Papp v. Papp, [1970] 1 O.R. 331 (C.A.). In Grant v. Turgeon, MacKinnon J. notes the required circumstances for an interim variation of custody as being “exceptional circumstances where immediate action is mandated.” In Miranda v. Miranda, 2013 ONSC 4704, Mitrow J. stated that the party seeking to change a status quo has a very high onus, clarifying at para. 26 that a “party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo”.

[12] In my view, the Applicant Father has failed to satisfy the court as to either a change in circumstances since the date of the final order, or as to circumstances sufficiently compelling to make a temporary change in that order.

[13] Mr. Psaila says firstly that the circumstances have changed because of the Respondent’s behaviour which has resulted in the child exhibiting extreme anxiety, including threats to self harm or run away from the mother’s home. He relies upon these factors as both a change in circumstances, and as well as compelling circumstances which would warrant a change in the order.

[14] I have serious concerns about the allegations of abuse of Brianne as set out by Mr. Psaila or whether this actually influences Brianne’s behaviour at present.

[15] Firstly, there were three things that Mr. Psaila says that the children told him about. He says that Brianne alleges that Ms. Sandurska hit Brianne with a belt. He says that, although this took place about a year ago and prior to the final order, he was not told about this when he consented to it and this is therefore a material change. However, he is unable to explain why, if this abuse happened a year ago, why Brianne would be raising this as an issue now. He is unable to explain why it didn’t influence Brianne’s views and preferences at the time the parties consented to a final order.

[16] Mr. Psaila also says that Brianne and Kylie both told him about an incident where he says that it was disclosed that “naked pictures” were taken of both Brianne and Kylie in the bathtub by the maternal grandmother while the children were in the Respondent’s care.

[17] In my mind, the Respondent has adequately responded to this allegation. The children were playing in the bath, and the maternal grandmother pretended to take pictures. There were no pictures taken, and the Applicant’s reaction was to telephone the police.

[18] Other than this event, the issue of self harm with the knife was prior to the final order and known to the Applicant. This appears to be the same with the incident where Brianne thought to “run away” which Mr. Psaila says happened “last fall” and presumably prior to the final order. These incidents do not constitute a change in circumstances.

[19] Moreover, it appears that Mr. Psaila has been complaining about Ms. Sandurska’s parenting for some time, and prior to the final order. He complained to the C.A.S. about physical abuse of the children prior to the final order after a tearful telephone call with Kylie. I have already noted that several of the incidents he presently complains about pre-dated the final order. The complaints about the Respondent’s parenting well pre-dated the final order and again do not constitute a change in circumstances.

[20] I have some doubts about Brianne’s reactions to the allegations as well. The children’s therapist filed a letter and she mentions some of Brianne’s negative viewpoints about the Respondent Mother. However, nowhere in the letter does she mention anxiety, bad dreams, self harm or fear of the Respondent. If Brianne was truly suffering from those issues, surely she would have disclosed that to the counsellor that she had been attending since 2018. Barring that, the only witness to Brianne’s symptomology was the uncorroborated evidence of Mr. Psaila.

[21] I therefore do not find that Brianne’s supposed anxiety and fear about her mother are proven on the balance of probabilities, and do not constitute a material change in circumstances or compelling circumstances warranting a change in the final order.

[22] Mr. Psaila also notes that Brianne is hostile towards her mother and does not wish to spend time with her or communicate with her.

[23] Brianne is a 10 year old child. Her views and preferences are important but are not conclusive as to the result. This is confirmed by Dohan v. Carroll, 2009 CarswellOnt 1130 (S.C.J.) where an 11 year old child had requested a change in the parenting arrangement in order to spend more time with his father. D.C. Shaw J. stated at para. 12, “The evidence of the child’s wishes is not so compelling to conclude that in his best interests the court must make a temporary change before the matter is heard at trial.” I agree with those comments as they relate to the present case.

[24] Firstly, the child’s counsellor, Carly Fex has commented on Brianne’s views about her mother. She notes similar complaints to those outlined by the Respondent Father (i.e., her mother makes her care for her sister, that she favors her sister and Brianne cannot get her homework done), but states that “while these may be valid concerns for Bri, its still difficult to conclude how these items would create the aversion to her mother that she is having.” She says that the child “has developed unhealthy negative thoughts towards her mom” and if I can believe the Respondent Mother’s materials, these unhealthy thoughts have only arisen since she went into her father’s care. In fact, Mr. Psaila’s own materials indicate that these complaints have only arisen since Brianne came into his care in April, 2020.

[25] Moreover, in the present case, I have serious concerns about the evidence of the Applicant Father as it relates to the views and preferences of the child. Mr. Psaila says in his June 29 affidavit on several occasions that he did not give the children the right to decide where they were going to live. In fact, this statement is untrue as disclosed in other material which has been filed. In a text sent to the Respondent by the Applicant on May 29, 2020, he says that Kylie was told that she had to make a choice as to whether to stay with him and that “she thought about it awhile and chose to stay here with us.” In June of 2020, Mr. Psaila bases his refusal to return the child on her views and preferences (see para. 15 of his affidavit sworn June 15, 2020). By June 29, 2020, after seeing my triage endorsement, he has changed the reasons to much more serious issues surrounding care of the child.

[26] Related to this is Mr. Psaila’s reluctance to take steps to enforce the court order presently in force. Although he says that he has encouraged Brianne to go to her mother’s residence, he has also said that she refuses and that he doesn’t know what to do. What he could do is impose disciplinary measures to ensure that the court order be adhered to. There is ample case law on this issue which makes it clear that there is a positive obligation on a custodial parent to do all that he or she can to ensure that a reluctant child adhere to the time sharing contained in a court order. That was made clear by the Court of Appeal in Godard v. Godard, 2015 ONCA 568, where the court stated [at para. 28]:

Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”

[27] These include reasonable disciplinary measures if the child refuses to adhere to parental direction to obey a court order: see Jackson v. Jackson, 2016 ONSC 3466, [2016] O.J. No. 2870 (S.C.J.) at para. 63.

[28] The Applicant has failed to demonstrate that he has taken reasonable steps to adhere to the court order notwithstanding his daughter’s views and preferences. These views and preferences are concerning to the counsellor and any father who would wait while his 7 year old daughter is expected to “decide” whether to go back to her mother’s would also be capable of putting undue pressure on Brianne. Therefore, I do not find that the views and preferences of the child are sufficiently compelling to result in a change to the order.

Order

[29] I might have immediately ordered a return to the week about arrangement, but the child’s therapist speaks of a transition back to the shared care arrangement and I agree with that approach. Even Mr. Psaila has indicated that he does not want to change the week about arrangement and wished to transition to that schedule. When I asked him for his proposal for a return to the week about arrangement, he suggested four weekend visits after which week about would resume. Ms. Sandurska, after consulting with her lawyer, suggested three weekends. The parties have now come to an agreement on transition.

[30] Therefore order to go as follows:

a. The Respondent’s motion is allowed and the parties shall return to the week about arrangement contained in the order of Vallee J. dated November 13, 2019 with the child residing with the Respondent Mother according to the following transition schedule:

1. Friday, July 10, 2020 at 5:30 p.m. until Sunday, July 12, 2020 at 5:30 p.m.;
2. Friday, July 17, 2020 at 5:30 p.m. until Sunday, July 19, 2020 at 5:30 p.m.;
3. Friday, July 24, 2020 at 5:30 p.m. until Sunday, July 26, 2020 at 5:30 p.m.

b. The week-about residency arrangement shall resume on Friday, July 31, 2020 at 5:30 p.m., which is the Respondent mother’s week.

c. The Applicant’s motion is otherwise dismissed.

[31] It is clear that the Respondent has been successful on the motion and is entitled to costs. As well, the material discloses unreasonable litigation conduct on the part of the Applicant. If the parties cannot agree to the amount of costs, the parties may make submissions on the issue of costs on a 10 day turnaround, with the Respondent making submissions first and then the Applicant. Costs submissions to be no more than 3 pages in length not including offers to settle and bills of costs

McDermot J.

Date: July 13, 2020

CORRECTIONS – July 13, 2020

1. Para. 25, fourth sentence now reads: In a text sent to the Respondent by the Applicant on May 29, 2020…
2. Para. 24, second sentence now reads: …that she favors her sister and Brianne cannot get her homework done…
3. The endorsement has been reformatted for publication