Court File and Parties

COURT FILE NO.: FS-13126-17 DATE: 2020-07-24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Angela Ransom, Applicant – and – James Dasti, Respondent

COUNSEL: Leanne Townsend, for the Applicant Melissa F. Sullivan, for the Respondent

HEARD: July 23, 2020

DECISION ON MOTION FOR SUMMARY JUDGMENT

Gauthier J.

Overview

[1] James Dasti (“Dasti”) has brought a Motion for Summary Judgment regarding his Motion to Change the Final Order of the Supreme Court of the Northwest Territories made on March 24, 2009. The order provided for joint custody of the child Jesse Dasti (“Jesse”) born March 1, 2005, and provided for a “week about” parenting arrangement.

[2] The motion is opposed by Angela Ransom (“Ransom”).

[3] The Motion to Change was issued on September 13, 2007. An order was made requesting the involvement of the Office of the Children’s Lawyer (“O.C.L.”) and Mr. Weppler began to act as Jesse’s counsel in October 2017. Jeannine Denis (“Denis”), a clinician employed by the O.C.L., also became involved in this matter as of November 24, 2017.

[4] On May 30, 2018, a temporary order was made which provided for Jesse to reside primarily with Dasti. He had, in fact, been residing primarily with Dasti and his spouse, Vikki Larocque (“Vikki”) since November 2015. The May 30, 2018 temporary order also provided for weekend and other specified access to be exercised by Ransom.

Facts

[5] The parties’ history, and the facts leading up to the bringing of the Motion to Change, are largely not in dispute and those facts are set out in the Facta filed by counsel. I will not repeat those facts in these reasons.

[6] There is disagreement between the parties concerning the reason that Ransom had little or no access to the child since Jesse began to reside primarily with Dasti. Ransom alleges that Dasti repeatedly blocked or otherwise interfered with her access. Dasti denies this and submits that access did not occur because Ransom was unresponsive to attempts to set same up. She virtually “disappeared” from Jesse’s life for a significant period of time.

[7] Dasti seeks the following relief:

1. The main relief being sought by Dasti is three-fold (relates to custody, access, and child support). More particularly, Dasti is requesting: 1) an order for sole custody in his favour; 2) an order that Jesse’s access with Ransom be at his discretion; and 3) an order for child support in accordance with the guidelines.
2. As secondary relief, Dasti is seeking: 1) an order that both parents shall be entitled to obtain important information, records and documentation regarding Jesse directly from Jesse’s service providers and educational institutions, unless Jesse explicitly expresses otherwise, which has been the case when Ransom has previously requested Jesse’s medical records; 2) an order that he (Dasti) be entitled to apply for and/or renew Jesse’s passport without Ransom’s consent, approval, authorization, or signature; and finally 3) an order that he (Dasti) be entitled to travel out of the country with Jesse for vacation or holiday purposes without the need to obtain Ransom’s consent.

[8] Ransom for her part, proposes that Dasti have sole custody of Jesse (although she was not prepared to formally consent to this on the hearing of the summary judgment motion) and that she have 55 days per year of access to Jesse. In the event that Jesse did not want to see Ransom, then she proposed that Jesse spend 55 days with members of her family (none of whom is a party to this proceeding).

[9] Ransom further requests an order for mandatory family counselling for herself and Jesse. Ransom is prepared to pay child support for Jesse, however, there was disagreement as to the interpretation of the Child Support Guidelines and the quantum of child support. That issue has been adjourned to a later date.

[10] Ransom undertook to cooperate with the execution of any and all documents to permit renewal of Jesse’s passport, and to allow Jesse to travel out-of-country.

Dasti’s Position

[11] Jesse is estranged from his mother, Ransom. He has valid reasons for feeling the way that he does toward her. She “abandoned” him. She did not cooperate in efforts to set up visits between herself and Jesse. She did not respond to his texts to her.

[12] Jesse is intelligent and articulate. His feelings about Ransom are his own. They have developed over time and are a direct result of Ransom’s own conduct toward her son. Neither Dasti, nor his spouse, Vikki, has attempted, in any manner, to alienate Jesse from Ransom. In fact, the opposite is true. They encouraged Jesse to have contact with Ransom.

[13] Given Jesse’s age and level of maturity, his wishes, which do correspond to his best interests, should be respected. He is not a child, but rather a teenager, and to attempt to force him to have contact with his mother, or to undergo counselling with her, would be not only futile, but harmful.

[14] This is an appropriate case for summary judgment as there is no evidence of any parental alienation as alleged by Ransom. The affidavit material filed is sufficient to permit the court to determine the issue of access and the other subsidiary relief. There is no genuine issue requiring a trial. Ransom’s materials in response to the summary judgment motion do not disclose evidence that there is a genuine issue that requires a trial.

[15] Ransom is attempting, according to Dasti, to characterize her poor relationship with Jesse as parental alienation in order to avoid the reality that she bears responsibility for essentially having abandoned her son.

Ransom’s Position

[16] The limited access that Ransom had to Jesse between November 2015, and the spring of 2018, was as a result of Dasti blocking access. Not only did Dasti prevent Ransom from exercising access to Jesse, he attempted (successfully she says) to alienate the child from Ransom. Dasti told Jesse that Ransom did not love him anymore and did not want to see him.

[17] Notwithstanding the difficulties, Ransom has attempted to remain in contact with Jesse, through social media. Jesse’s responses, Ransom says, are hostile and reflect the parental alienation campaign conducted by Dasti and Vikki.

[18] Ransom strongly believes “that Dasti and Vikki have been deliberately speaking ill of me in front of Jesse in an attempt to undermine my ability as a parent and to destroy my relationship with my son.”

[19] Ransom acknowledges that she has made mistakes in her relationship with Jesse, and she acknowledges that he has reacted to those mistakes. Her position, however, is that the intensity of those feelings and the hostility with which they are expressed indicate influence by Dasti and Vikki. As a result, there is an issue regarding the legitimacy of Jesse’s position, and a trial is required to deal with the alleged alienation.

[20] Ransom loves her son and wishes to be involved in his life, albeit in a limited manner.

Jesse’s Position

[21] He has been clear in expressing his wishes that he does not want to have any contact with Ransom. There has been no in-person contact between Jesse and Ransom since September 2018, and Jesse terminated all social media contact with Ransom in November 2019.

[22] He should not, given his age and maturity as well as the legitimacy of his feelings toward Ransom, be forced to have contact with her, or to undergo counselling, against his wishes.

[23] Mr. Weppler on behalf of Jesse also submits that Jesse’s views and wishes do in fact correspond to his best interests.

[24] Jesse wishes this litigation which has been extremely difficult for him, to come to an end, now, without a trial as a trial is not needed.

[25] Jesse wants Dasti and Vikki to have custody of him. He is happy in their home, which has appropriate rules. Jesse maintains that his father has not only not discouraged him from having access to Ransom, he has encouraged him to do so. There has been no attempt by Dasti or Vikki to discredit Ransom or to “alienate” Jesse from her.

[26] As well, Jesse does not want Ransom to have any access to his medical or educational records without his consent. This is a reasonable position given that there was an issue about his medical records in the past (detailed in the affidavit material) which caused Jesse much distress.

The Law

[27] In considering any proceeding involving a child, the primordial consideration is the best interests of the child. Subsection 24(2) of the Children’s Law Reform Act is engaged, and, on the facts of this case the following are the circumstances that are at the forefront of any consideration of Jesse’s best interests:

(2) BEST INTERESTS OF CHILD - The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

[28] Rule 16 of the Family Law Rules is also engaged. It relates to the motion for summary judgment.

16.(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

Analysis

[29] Firstly, in order to vary a Final Order, the moving party must establish a material change in circumstance which justifies the change requested.

[30] In this case, the joint custody and joint parenting arrangement which was ordered by the Supreme Court of the Northwest Territories is clearly no longer appropriate and no longer serves Jesse’s best interests. Therefore, the order should and will be varied to reflect the reality that has existed for a significant amount of time.

[31] It is also clear that Jesse’s best interests will be served by an order that Dasti have sole custody of Jesse.

[32] Ransom’s affidavit referred to an agreement with Dasti that he have custody of Jesse. Additionally, Ransom’s counsel, at the outset of her submissions on the within motion, advised that there was no real issue about the appropriateness of a sole custody order in favour of Dasti. It was only at the end of the hearing, when I advised that the ruling about access would be reserved, that Ransom expressed a reluctance to consent to the sole custody order.

[33] I will not spend a lot of time or ink on this issue.

[34] Jesse has been in the de facto sole custody of Dasti since November 2015, almost five years. The evidence establishes unequivocally that Jesse is doing very well. He is secure in the home of his father and Vikki. He is an A student, and he is an accomplished athlete. He is described by Denis as “a very impressive young man”.

[35] His living arrangement, the one that has been in place since he was 10, should continue as it is. Dasti will have sole custody of Jesse on a final basis.

[36] I am also satisfied, based on the record, that a trial is not required. All of the evidence that is necessary for me to make a just determination on the merits of Dasti’s motion to change is contained in the record.

[37] Ransom raised the possibility of parental alienation and suggests that a trial is necessary to fully deal with this issue. I disagree.

[38] There is no credible evidence of any parental alienation occurring in this case. The only suggestion of any parental alienation is contained in the self-serving assertions contained in Ransom’s affidavit.

[39] The suggestion of any parental alienation has been rebutted by Jesse, Jesse’s counsel and Denis. There is no merit to the suggestion that a trial is required to adequately address that issue and how it may relate to the legitimacy or integrity of Jesse’s position on access.

[40] I also wish to comment on Ransom’s interpretation or characterization of her son’s texts as being evidence of alienation having occurred. That characterization is nothing more than her opinion. There was no expert or other evidence called to establish that the words or phrases used by Jesse in his texts to his mother are evidence that he has been improperly, or in any way whatsoever, influenced by Dasti or Vikki. Rather, they appear to be a clear reflection of Jesse’s feelings. They refer to Ransom having left Jesse, to Ransom not having been around for any of Jesse’s accomplishments, and Ransom not being present, “nowhere to be found”. They also clearly express Jesse’s desire to have no contact with Ransom. Finally, the texts express how Jesse has felt stressed and pressured and guilty throughout the litigation and how, two years ago, he even had suicidal thoughts. He wants to be free of the pressure and stress that the ongoing battle over access has caused him.

[41] This desire is confirmed by Denis as well as Jesse’s counsel. The position taken by Jesse regarding contact with Ransom appears logical and rational when one examines the history of the relationship between Jesse and Ransom.

[42] The deterioration of that relationship appears to lie at Ransom’s feet. While she attempted to paint a picture of a parent who has been denied access, repeatedly and persistently, and that she is not the one responsible for the strained relationship between herself and her son, the evidence establishes otherwise.

[43] A review of the child protection records reveal that Jesse complained about his mother saying things like “you’re as dumb as your father”.

[44] The notes also disclose that Jesse’s attempts to reach Ransom by telephone or text frequently were unsuccessful.

[45] The notes indicate that Jesse asked Ransom to tell him “her side of the story”. She refused.

[46] All of the evidence points to Jesse’s request to have no contact with Ransom being his own request, made over time, without any influence from any one. The clinician, Denis, confirms that Jesse has always been very clear and precise about his wishes concerning contact with Ransom and with Ransom not having access to his medical and school records.

[47] It would not be in Jesse’s best interests to force or attempt to force him to have contact with his mother or to undergo counselling.

[48] As the Court of Appeal stated in De Melo v. De Melo, 2015 ONCA 598, at para. 12,

…court-constructed access arrangements should not be imposed on teenaged children who have repeatedly confirmed that they do not wish contact with the non-custodial parent and that they wish to maintain existing custodial and access arrangements.

Conclusion

[49] In conclusion, it is abundantly clear that Jesse’s best interests as defined in s. 24 of the Children’s Law Reform Act are served by acceding to the request for relief sought by Dasti. The relief sought is in accord with Jesse’s clear, well-articulated, and justified wishes. Jesse’s wishes are, in this case, determinative of the issue.

[50] As Quinn J. said in Stefureak v. Chambers, 2004 CarswellOnt 4244, at para. 64:

Ultimately, the weight to be attached to any expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of a child to articulate a view.

[51] Given the Jesse’s age and level of maturity, he also should have some input into who has access to his medical and educational records.

[52] Insofar as the issue of the passport is concerned, in order to eliminate any delay, or complication, or unnecessary communication between Dasti and Ransom, I will make the order requested, i.e.. that Dasti be entitled to apply for and/or renew Jesse’s passport without the requirement of Ransom’s approval, consent, or signature.

[53] Likewise, there will be no requirement that Dasti obtain Ransom’s approval or consent for out-of-country travel with Jesse.

[54] ORDER:

1. The motion for summary judgment is granted.
2. The respondent father, James Dasti, shall have sole custody of the child, Jesse Dasti, born March 1, 2005, who shall primarily reside with him.
3. The applicant mother, Angela Ransom, shall have access to the child, Jesse Dasti, born March 1, 2005, as mutually agreed upon between the parties in accordance with the child’s wishes.
4. Both parents shall be entitled to obtain important information, records and documentation regarding the child directly from the child’s service providers and educational institutions, unless the child explicitly expresses otherwise.
5. The respondent father, James Dasti, shall be entitled to apply for and/or renew the child’s passport without the consent, approval, authorization, or signature of the applicant mother, Angela Ransom.
6. The respondent father, James Dasti, shall be entitled to travel out of the country with the child, Jesse Dasti, born March 1, 2005, for vacation or holiday purposes without the need to obtain consent from the applicant mother, Angela Ransom.

[55] If the parties are unable to agree on costs, Dasti may make written submissions as to costs within 30 days of the release of this ruling. Ransom will have 10 days after receipt of Dasti’s submissions to respond. If no submissions are received within the 40 day time frame set out, the parties will be deemed to have settled the issue of costs as between themselves.

The Honourable Madam Justice Louise L. Gauthier Released: July 24, 2020