Court File and Parties

Court File No.: FC-20-168 Date: 2020-08-18 Superior Court of Justice – Ontario

Re: I. S., Applicant And: T. C., Respondent

Before: Mackinnon J.

Counsel: Jodi R. Fleishman, for the Applicant Lisa Sharp, for the Respondent

Heard: August 12, 2020

Endorsement

[1] My order dated June 29, 2020 directed a review after six weeks to provide an update on Jaeden’s progress in his father’s care, to review the compliance of both parties and Jaeden with the order, and to provide the court with specified productions. The review would also consider appropriate expansions to the mother’s parenting time having regard to her compliance with the order and other relevant information touching on Jaeden’s best interests. I directed that the affidavit material for the review would be restricted to events occurring after the first hearing date which was June 4, exhibits arising from the production order made, or documents from service providers as to matters arising after the release of the June 29 endorsement.

[2] These terms were included in the June 29 order so that the scope and purpose of the review hearing would be well known in advance, and to underline that the review hearing would not be a re-hearing of the June 4 motion or include events or information that pre-dated it.

[3] The mother delivered five supporting affidavits from third parties. The affidavits from Dr. Fraser-Roberts and Mr. Pratt are not admissible. They do not meet the parameters set out in the June 29 order for admissibility on this review. Paragraph 2 of Ms. Panela-Seguin’s affidavit is admitted showing that she was seeing Jaeden for therapy until June 16, 2020. Paragraphs 1, 2 and 3 of Ms. Gauthier’s affidavit are admissible as are paragraphs 27 to and including paragraph 38. Only these paragraphs are within the parameters of the June 29 order. For the same reason Ms. Talisman’s affidavit is not admissible up to paragraph 10, and from paragraph 24 onward except for paragraphs one and two. Paragraphs 10 to 23 are admissible. The notes she made during the June 30 exchange are admissible as her account of what she heard said and by whom.

[4] The mother’s own affidavit also contains many paragraphs predating June 4, not within the scope of this review. Except for paragraphs 1, 6, 7, and 10 to 17, the contents are not admitted up to and including paragraph 34. Paragraphs 35 and 36 are admissible. In paragraphs 37 to 51 she reviews her medical history commencing from her age fifteen. These paragraphs are not admitted in that they address matters predating the June 4 motion. The mother submitted they were relevant to her claim for retroactive anonymity. This argument could only have merit if the June 4 motion were to be re-litigated, with a view to asking the court to consider reaching different conclusions on the basis of information she did not present then but could have.

[5] The remaining paragraphs are admissible.

[6] What I have ruled inadmissible shall be removed or not entered into the Continuing Record as the case may be.

[7] The relief requested by the respondent in her Notice of Motion in relation to decision making does not fall within the scope of the review other than with respect to counselling for Jaeden’s mental health issues and will not be addressed.

[8] The applicant is entitled to his costs incurred in connection to reviewing and responding to the inadmissible portions of the affidavits, to relief requested beyond the scope of the review, and to the 30 minutes of hearing time devoted to these issues.

[9] Some issues were agreed to. On consent I order that:

• The parents shall refrain from saying negative and untruthful things about the other to Jaeden.
• The parents shall refrain from writing anything disparaging about the other on the joint calendar for Jaeden.
• The parents shall not discuss the case in Jaeden’s presence unless advised by the court or medical professionals to do so.
• Jaeden shall continue counselling at Cross Roads [erroneously referred to as Youth Services Bureau in paragraph 161.8 of my June 29 endorsement] and with his current counsellor if possible.
• Jaeden’s permanent residence shall be in Ottawa, to which the father has permission to relocate.
• Jaeden shall attend Trille des Bois school. The applicant shall register him there for the upcoming school year.
• Jaeden shall not reside in a house where sex work will take place or illegal drugs will be sold and shall not to be exposed to illegal drug use or drug use inappropriate to his age even if legal. The respondent’s use of medically prescribed marijuana outside Jaeden’s presence is excluded from this term.
• There is no restriction on the location where the mother may exercise her parenting time with Jaeden.
• Dr. Fraser-Roberts shall remain the child’s pediatrician and shall continue as his primary physician for medical treatment.

[10] The father proposes that the mother’s parenting time with Jaeden be increased to every Saturday from 9:30 a.m.-7:30 p.m., commencing Saturday August 15, 2020; and every Wednesday from 3:00 p.m.-7:30 p.m. (or after school until 7:30 p.m. when school commences), commencing Wednesday August 26, 2020. He also proposes that there be a further review after three months.

[11] The mother proposes that her parenting time shall be from August 15 to 24, and commencing on August 31, during alternate weeks.

Request to Initialize

[12] The respondent requests the withdrawal of the June 29 endorsement from all Canadian and International legal reporting services, so that the style of cause may be initialized and then re-sent to all legal reporting services. During the hearing she added the request that the style of cause be initialized going forward. The father opposes the retroactive request but consents to the prospective one.

[13] The request to initialize the case was made after the release of the June 29 endorsement. The applicant submits that the respondent is motivated by the outcome of the motion rather than by a legitimate entitlement to the order sought. He says the endorsement had already appeared online by the time of her request and has also been discussed in various legal blogs. No mechanism was put forward by the applicant as to how the order requested could be implemented as to blogs or international legal reporting services. Accordingly, he submits an order attempting to remove the already released decision from the public domain would be ineffective, confusing, and ought not to be made

[14] Respondent’s counsel thought the database would respond to an order of this court.

[15] The respondent submits in her Notice of Motion and affidavit potential prejudice to her efforts to obtain employment, if prospective employers were to search for and find the June 29 decision. The applicant submits that this concern is speculative and that the legal test to grant the order on this basis has not been met.

[16] The Ontario Court of Appeal has emphasized the necessity of the existence of a serious risk to an important individual interest that can only be addressed by some form of non-publication or sealing order and that is well grounded by convincing evidence not mere assumptions: (M.E.) v. Williams, 2012 ONCA 35. Here the respondent relies on potential prejudice to her ongoing job search. She submits her background in legal and international work makes it likely that potential employers would search her name in reported cases and could locate the June 29 decision which includes personal medical information. She also submits that the findings in that decision touching on her credibility and conduct could discourage potential employers from hiring her. The second requirement in Williams is that the personal interest must be one that can be expressed in terms of a public interest where there is a general principle at stake. The Williams case provides the example of ability to access the court as a matter of public interest that affects the proper administration of justice. Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 provides another example, namely inability to present full answer and defense to a civil lawsuit without going into breach of a non-disclosure contract were the protection of a non-publication or sealing order not granted.

[17] The applicant’s memorandum of law included examples of cases where protecting children who were particularly vulnerable and at risk of undue stress and anxiety going well beyond the usual impact of parental separation formed the basis of orders to provide anonymity in the style of cause, but argued the law set out in those cases did not warrant the order the respondent had sought: G. (C.M.) v. G. (R.), [2012] O.J. No. 1884 (S.C.J.); K.(M.S.) v. T.(L.T.), 2003 27471 (O.C.A.); W.W. v. X.X. and Y.Y., 2013 ONSC 929; G.M. v. R.M., 2015 ONSC 4026. The respondent relied on Rajan v Rajan, 2014 ONSC 5383 where the court made the order on consent and to protect the children from embarrassment and to protect the mother in relation to her employment as a social worker. The decision in Rajan does not refer to the applicable legal test or to any governing case law.

[18] The one case referred to where a retroactive order was sought is Alsaid-Ahmad v. Jibrini, 2019 ONSC 4633. The order was denied even though brought on consent.

[19] The request for a retroactive order is dismissed for the following reasons. I am not persuaded that it would be effective or capable of enforcement. The medical records pertaining to the mother that are referred to in the June 29 endorsement were exhibited by the mother in her own motion materials. The key medical issue in the decision, whether she had been suicidal, was resolved in her favour. Her concerns with respect to findings made in that decision fall within the description of “purely personal embarrassment that can be occasioned to litigants when justice is done in public” which the Court of Appeal has stated at paragraph 25 in the Williams case will not on its own satisfy the necessity branch of the case. Although Jaeden is an anxious child, the evidence before the court does not reach the level required to grant anonymity for his protection.

[20] On a prospective basis the circumstances are now different with respect to the respondent herself. By my order she has been required to deliver a detailed report from her psychiatrist which includes a historical review and significant personal information necessary for the court to know but which does engage an important privacy issue. The respondent has a privacy interest in protecting personal medical information from public scrutiny, including by prospective employers, to which they would not legally be entitled to access. The personal interest can also be expressed as a public interest in facilitating the production of confidential medical information so that the court has the evidence it needs to decide in the best interests of the child.

[21] Accordingly, the prospective request for anonymity is granted. Commencing with this endorsement the style of cause shall be initialized.

Jaeden in his Father’s care

[22] Jaeden was delivered to his father’s care on June 30 with the very helpful assistance of a Children’s Aid Society worker, over a period of about three hours. Jaeden made very clear his negative views of his father and his opposition to going with him. The father says Jaeden was sad and withdrawn but well behaved when they did leave. For the first two days the father says Jaeden remained sad and withdrawn and expressed a lot of worry about his mother. By the third day the father says he began to do much better and became more and more comfortable with his father as each day went by. The father says Jaeden is now doing extremely well in his care. He has not displayed aggression, suicidal ideation or aggression against his father. The father says now Jaeden only rarely expresses concern or worry about his mother.

[23] Ms. Talisman also described the turnover of Jaeden to his father. Jaeden called her as a support person while he was at the CAS with his father and the CAS worker. Ms. Talisman took notes of what she heard. Jaeden asserted his human rights, expressed clearly and forcefully that he did not want to go with his father, hated him and wanted to kill him. He accused his father and the CAS worker of hurting him by keeping him in the room. He said his father emotionally, physically and spiritually abuses him.

[24] Since June 30 Jaeden has maintained twice weekly counselling sessions by video conference with his Crossroads counsellor. The CAS social worker has visited Jaeden in person twice each week. She provided a detailed letter to the court dated August 7, 2020 reviewing each of her eight visits with Jaeden. She summarized her observations as follows:

• No observations of the child feeling unsafe in his father’s care.
• No concerning interactions noted between Jaeden and his father.
• No self-harm talk or reported concerns about him wanting to harm himself.
• He appeared most uncomfortable about talking about his situation or the past, which he believes is his dad’s fault.
• He would not discuss anything about his mother or his time with her.
• When he was just a kid, i.e. climbing rocks, playing Lego, wrestling with his dad, showing me a picture of the food, he made from a kid’s recipe book he appeared the happiest.
• He expressed feeling annoyed and frustrated with talking to so many adults, myself included.

[25] This worker observed an amelioration in Jaeden’s attitude towards his father over her involvement. On July 3 Jaeden referred to his father as “him” and told her that he hated him. He told her “he hurts my feelings by telling lies all the time”. Later during that visit Jaeden said he had told him it was harmful to eat the same foods every day, but “he lies because he eats the same breakfast every day.” Jaeden did miss his Mom and found it hard. He said, “it’s all dad’s fault”. On the third visit the social worker described Jaeden as proud and smiling showing her and telling her about parkour which he was doing every day. When she commented that he was having some fun, he said, “no.” Jaeden also smiled and laughed showing her a cookbook his dad had got for them to use together. During this visit, Jaeden did not correct her when she referred to his father as dad, as he had in the prior visits.

[26] The CAS worker also noticed Jaeden seemed more relaxed around his dad, but Jaeden said, no, when she asked him whether this was the case, and would not tell her anything else. There were occasions when Jaeden called his father names, including swear words. He said once he hates his father because he never went for help, he didn’t care about him, and made threats to beat Jaeden up. Towards the end, on two visits, the worker observed Jaeden laughing with his father, enjoying a tickle game with him, and happily playing pranks on him. On July 24 she noted that “it was sweet to see Jaeden and him be playful together, … I expressed feeling it was progress in the time I have been in the home to see Jaeden let his guard down in front of me and be affectionate.”

[27] Very importantly the CAS worker did not observe that Jaeden felt unsafe in his father’s care and heard no self-harm talk, nor did Jaeden report any concerns about wanting to harm himself.

[28] Since the June 29 order the mother and Jaeden have had at least three phone calls and four in person visits. The father agrees that the mother has generally followed the court order. The phone calls were conducted on conference call so that the father could listen. Jaeden told his father his visits with his mother were fun and good but did not want to talk about them. The father had some concerns arising after the visits. He described Jaeden as being withdrawn for a day or two, and making statements to him like, “you know you are abusive.” After the second visit he asked why his father had chosen to divorce his family for a hooker. After the third visit Jaeden raised the question whether his father provided care for him.

[29] The father was also concerned to find a message on Jaeden’s device titled “Jaeden reminder notes” which he says matched almost word for word the types of talking points Jaeden had used to his father regularly prior to July 1 and especially during the transition at the CAS on June 30.

[30] The father remains concerned that the mother is still whether intentionally or not, negatively influencing and emotionally manipulating Jaeden. He agrees her parenting time should be increased but not to include overnight visits yet, and not too much contiguous time so as not to reverse the many positive behaviours in Jaeden achieved over the last month.

[31] The mother says that each time she has seen Jaeden since June 29 he has tried to share concerns about his father. She reminds him they are not permitted to talk about that and refers him to his counsellor and CAS worker to share his concerns with. She states where she has held her visits and the friends who have joined them to show love and support for her and Jaeden. She does not say much else about the visits or how Jaeden was during them.

[32] Ms. Gauthier was present towards the end of the first visit, on July 14. She observed that Jaeden was happy with his mother and as the time to leave approached he told her he did not want to go, and said he hates [his father], and don’t make me go. She described Jaeden as unhappily going back to his dad’s car. Ms. Gauthier was present for the entire July 21 visit. She observed Jaeden run to his mother with a happy smile and a big hug. She describes Jaeden as visibly distraught when he had to go back to his father to get his bag and scooter for the visit. His mother asked him appropriate questions about what he had been doing for fun, but Jaeden changed the subject and saying he wanted to come home, he missed her, and he didn’t like being with his dad.

[33] Observations of the more recent visits were not tendered by or on the mother’s behalf.

[34] In reference to the father’s expressed view that things are much improved between him and Jaeden, the mother commented at her paragraph 74: “I would not be surprised that Jaeden has quickly figured out how to manage the situation, since he is a very bright child for his age. I am happy to hear he is adapting.” A question arises whether she is discounting the possibility of an actual improvement in the relationship?

Mother’s Supports

[35] Since June 4 the mother has seen her psychiatrist and her social worker from the ROH several times, as well as a counsellor and a physician at the Wabano Centre, and others for parenting and therapeutic support.

[36] In compliance with the June 29 order the mother obtained a letter from the Royal Ottawa Health Care Group dated August 4, 2020 which details her diagnosis, treatment provided, and her past psychiatric history based on their records. This is a fulsome and helpful report signed by Dr. Vaze, staff Psychiatrist and Ms. Walt, MSW, RSW.

[37] In July 2019, the mother was diagnosed with severe delayed PTSD and secondary depression. Their view is that she has been able to manage her symptoms quite well and that her recent heightened level of emotional reactivity is likely connected to or caused by her current stressors.

[38] The report notes that the mother also has ADHD which can cause emotional dysregulation, mood swings, low frustration tolerance, and difficulty controlling anger and irritability. Most of these symptoms can be controlled by medication, noting that her compliance with ADHD medication has been at times erratic. She also has Sleep Apnea. These are her only psychiatric diagnoses at present. Dr. Vaze and Ms. Walt note that symptoms of ADHD and PTSD can at times resemble or overlap with some symptoms of Borderline Personality Disorder. They say that she was diagnosed with BPD in 2009 but they do not feel she satisfies the criteria for that diagnosis at this time.

[39] In conclusion, “despite her range of psychiatric symptoms, [she] has never consistently voiced any serious thoughts or plans of suicide or self-harm and we have never found her to be at risk of these.” Recent irritability, anger, impatience and dysregulation are in their experience of her atypical and they say likely caused by the stressors she is under and not generalized across her lifetime. They say she is insightful of her psychological conditions. She strikes them as a reliable historian and proactive in seeking help for herself.

[40] The report is helpful in that it is consistent with the finding that the respondent was not suicidal in March and clarifies that BPD is not a present diagnosis. Also, it is positive to read that her recent symptoms are likely situational in her current stressful situation and that she is insightful to her psychological condition.

[41] It would be very positive were the respondent also able to demonstrate that her antipathy towards the applicant can be managed or mitigated, and that she can develop insight into the harm to Jaeden from messaging her negative views of his father to him. It is not possible to tell from her list of personal supports whether these two issues, both key to progressing the parenting issues in the case, are as yet being addressed. I hope she will provide professional feedback on these issues in the next review.

Residential Arrangements for Jaeden

[42] I find that Jaeden has been able to reside in his father’s care without resort to any self-harm, and that he has not threatened his father or harmed his father either. I find that his relationship with his father has improved during the past six weeks, that he now calls him “dad”, is more relaxed and has enjoyed some positive experiences with his father. I also find that Jaeden has missed his mother and has enjoyed the time he has been able to spend with her.

[43] There is also evidence which I accept indicative of Jaeden continuing to display signs of negativity towards his father after contact with his mother. There is also evidence which I accept that he is not willing to share information about his contact and interactions with his mother.

[44] I find the mother has complied with the June 29 order in terms of facilitating the turnover of Jaeden to his father, the period of no contact and that she has respected the schedule of visits allowed for in that order. She did not comply with the order in terms of the directions for the scope of this review. She acknowledged she was aware of the directions but gave her own reasons for not adhering to them. This is more than a procedural error having regard to the advocacy and opinions expressed by her supporting affiants in inadmissible portions, directed towards presenting the father in a negative light.

[45] The mother is obtaining considerable personal support on an ongoing basis. She needs to tackle the issue of how she can protect Jaeden from emotional harm connected to him receiving negative messages from her that are detrimental to his relationship with his father.

[46] The mother’s parenting time with Jaeden should be increased now in a significant way so that the court can determine if Jaeden can, at the same time, continue to progress his relationship with his father. My view is that it is too soon to implement the equal time sharing proposed by the mother, or even the longer period of nine days she requested during August. Instead Jaeden will continue to reside primarily with his father and the mother’s parenting time shall be as follows:

• Pursuant to my order made on August 13, on August 15 and 22, to which I now add August 29, and September 5 from 9:00 a.m. until 8:00 p.m., without restriction as to location or activity. If she travels out of town with Jaeden, she shall provide prior notice of the destination to the father through counsel.
• Also as ordered on August 13, by Facetime or other video contact on Tuesday August 18 and Thursday August 20, for an approximate 15 to 20 minutes per call. The calls shall take place at 5:00 p.m. and shall be placed by the mother and conducted privately between the mother and son.
• Commencing August 26 every Wednesday from 3:00 p.m. to 7:30 p.m., or from after school until 7:30 p.m. if school is in session.
• Commencing on Saturday September 12, and continuing September 19, 26 and October 3, and until further order, from 9:30 a.m., overnight until Sunday morning at 9:30 a.m.
• Jaeden may telephone his mother once per week on Mondays, for a private telephone call of five minutes duration. Unless the parties agree to a different time, the call shall take place at 5:00 p.m.

[47] The parents shall communicate with respect to Jaeden solely by 2 Houses except in the case of emergency. I have preferred this platform over Google calendar based on the evidence that 2 Houses is unalterable which is not the case with the Google calendar.

[48] I make no order at this time for before or after school care for Jaeden given that he will be residing with his father who has stated he will not require it.

Services for Jaeden

[49] Jaeden shall continue to attend his counselling sessions with Dylan at Cross Roads two times per week. Jaeden shall renew his sessions with Ms. Pantale-Seguin at Wabano, but on a once per alternate week basis. The father shall make the necessary arrangements. The sessions may be in person or virtual.

[50] On May 4, 2020 the Master ordered counselling for the father and son to work on their relationship. This has not yet commenced. Initially the parents agreed that Melissa Lafreniere would be the counsellor. If she is unwilling or unable to fulfill the mandate of that order the parties shall retain either Marianne Cuhacci or Janet Claridge to provide the father/son counselling. The mother’s counsel submitted that family counselling might be more appropriate. That may be recommended in the assessment, but for now, the parties shall comply with the order as made and ensure that the father /son counselling starts forthwith.

Caregiving for Jaeden in Father’s Absence

[51] For the duration of this order, the applicant father shall be entitled to have his parents provide child care to Jaeden either in their own home or in the father’s home, providing this shall not interrupt Jaeden’s schooling or the mother’s parenting time and providing that it is necessitated by the father’s work related travel. During this time the applicant shall keep his work related travel to the absolute minimum required. His being away from Jaeden is clearly not ideal at this juncture.

[52] Each time he is required to travel for work the father shall notify the mother through counsel of the particular dates for which care is to be provided, the location where it will be provided and the place to which the father is required to travel for work.

[53] I make this order to best facilitate the progress in Jaeden’s relationship with his father for the next several weeks and so that the mother’s parenting time with Jaeden will be as ordered above.

Next Review

[54] The next review will take place during the week of October 12 or 26. The time allotted for the hearing shall be 60 minutes, to be strictly enforced. I set a page limit of 10 pages for the affidavit to be provided by each parent. The contents of the affidavits shall be confined to events taking place after August 12. When the date has been settled counsel are to agree on filing deadlines consistent with those ordered for the first review.

[55] The purpose of the review is to hear how Jaeden does between now and then, and to assess whether the progress made to date with his father continues. The counsellor retained pursuant to paragraph 50 above shall provide the court with a written update with respect to the sessions she has conducted and her observations with respect to the status of the father/son relationship. I will also receive and consider submissions arising from the father’s psychiatric material, and any professional feedback from a treating professional as to how the mother is managing her antipathy towards the applicant, and whether she has developed insight into the harm to Jaeden from her own negative views of his father being passed on to him.

[56] Other than as noted above each parent may deliver a single affidavit from a third party which shall be confined to the post August 12 period, not exceed three pages in length, and shall attest to the affiant’s personal observations only, without opinion or editorial comment.

[57] The court appreciates the assistance provided by the CAS worker for this review. It would be helpful if she could be assigned to touch base with Jaeden on three occasions during the next eight weeks and to provide a further update for the next review. This endorsement shall be forwarded to Ms. D’Aoust, head of the CAS legal department, to consider this request.

Remaining Productions

[58] The applicant has not yet obtained and produced a copy of his psychiatrist’s file, or a report from his psychiatrist covering his involvement with the applicant, any diagnoses made, and treatment provided, and to the extent of the psychiatrist’s knowledge, the applicant’s past psychiatric history, as was ordered on June 29. Should he not have received the material within the next two weeks he shall at that time obtain a letter from his psychiatrist advising the court when the file or report will be delivered.

[59] Jaeden’s CHEO records are also outstanding. These shall be obtained by the applicant and a copy provided to the respondent forthwith upon receipt.

Section 30 Assessment

[60] The section 30 has commenced recently. I expect both parents to participate in the process in a timely, cooperative way and to do everything they can do to shorten the length of time to the completion date. I intend to schedule a further review when the assessment report is available. I expect that to be the final review of the temporary parenting arrangements that I will conduct. Counsel shall please ask the assessor to provide an estimated completion date to facilitate the scheduling of that review.

Costs

[61] If counsel are unable to agree on the amount of costs payable to the applicant pursuant to paragraph 7 above, I shall determine the amount upon receiving their written submissions. With respect to the costs of the rest of this review counsel shall deliver their Bills of Costs and sealed copies of any offers pertaining to settlement of this review within three weeks. I intend to determine the costs of this review at a later date, in conjunction with those of one or more subsequent reviews, and shall provide counsel notice and the opportunity to make written submissions when that time comes.

Mackinnon J.

Date: August 18, 2020

COURT FILE NO.: FC-20-168 DATE: 2020-08-18

ONTARIO SUPERIOR COURT OF JUSTICE

RE: I. S., Applicant AND T. C., Respondent

BEFORE: Mackinnon J.

COUNSEL: Jodi R. Fleishman, for the Applicant Lisa Sharp, for the Respondent

ENDORSEMENT

Mackinnon J.

Released: August 18, 2020