COURT FILE NO.: FS-19-94432
DATE: 2020 10 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Darryl Atkinson v. Jennifer Atkinson
BEFORE: D. E. Harris J.
COUNSEL: F. Rashid for the Office of the Children’s Lawyer
HEARD: October 2, 2020 by Zoom Conference
E N D O R S E M E N T
[1] Darryl Atkinson makes application for an order moving the residence of the two children of the parties’ marriage from the respondent’s residence in Port Credit to his own in Brampton. The parties were self-represented. Ms. Rashid appeared for the Office of the Children’s Lawyer (OCL).
[2] The sole issue is whether the change is in the best interests of the children within the meaning of that phrase in Section 24 of the Children’s Law Reform Act R.S.O. 1990, c. C.12. The children are Victoria, 14 years old but soon to be 15, and Tyler, who is 11 years old. On November 26, 2019, Justice Fragomeni requested the involvement of the OCL and Ms. Rashid was appointed on January 23, 2020. She met with each of the parents in mid-February 2020 but then her investigation was abruptly derailed by the COVID pandemic. Work resumed in June 2020 but was largely virtual. Ms. Rashid met with each child twice and also met with them once in person. A clinical social worker from the OCL, Jaqueline Iafrate, also met with the children two times each at Ms. Rashid’s office.
[3] After quite a number of unhappy years in the marriage, on or about December 9, 2018, Ms. Atkinson unilaterally moved to an apartment in Port Credit with the two children. In her letter informing her husband of the move, Ms. Atkinson announced that she felt the children were not safe in Brampton as there had been several crime sprees in the area. She assumed these were due to the shelter in the area. Home insurance had doubled. Mr. Atkinson was informed of the times he could have with the children. Ms. Atkinson also relayed that the following school year the children would go to school near her residence in Mississauga instead of in the Brampton school they were accustomed to. That is indeed what occurred.
[4] Victoria told Ms. Iafrate of the OCL that her mother had informed her of the pending move but demanded that she not tell her father, Mr. Atkinson. It had to remain a secret.
[5] Soon after the move to Port Credit, in February 2019, Victoria had a mental health breakdown. She expressed to the police that she was sad and anxious at school and wanted to die. The police took her to hospital but she was released after a few hours. The father in his affidavit says that the breakdown followed a heated argument between Victoria and her mother about school performance. Victoria made statements on social media and the police then got involved. Victoria said the situation was due to peers at school, the move to Port Credit and the separation.
[6] Victoria’s family doctor met with her after the breakdown and stated that she had no concerns about Victoria’s safety but recommended counselling. Victoria told her that she was finding her parents’ separation stressful.
[7] With respect to Tyler, he was recently diagnosed with ADHD. He has had developmental issues and problems in school. He now has an ADHD specialist and is on medication.
[8] It is undisputed that before the separation, there was often heated verbal arguments in the home between father and mother. Mr. Atkinson volunteered at this hearing that he pled guilty to assault on his wife in 2013. He received a conditional discharge and one year probation, I assume after completing a PARS program. The police were also called by Ms. Atkinson in 2016 but Ms. Iafrate summarized the occurrence report as indicating that no charges were laid as Ms. Atkinson was inconsistent in her accounting of the incident.
[9] Victoria described to Ms. Iafrate the time prior to her parents’ separation as unpredictable and confusing, filled with tension. There was a great deal of shouting and using “bad words.” On her way home from school, she would often wonder whether her parents would argue that night. The worst time was at Christmas in 2015 when her parents were screaming at each other. Her father left the house because he did not want the fight to escalate. The basement tenants would often hear the arguments and called the police on one occasion.
[10] Victoria has been consistent in conveying to the professionals at the OCL that she would prefer to be living with her father, not her mother. He is calmer; the opposite of her mother who is always tense, worried and very controlling. At her mother’s, they are fighting all the time. Her mother fights with Tyler a lot. When they misbehave, her mother yells at the children, even in public places. Victoria thinks it would also be better for Tyler to be living with her and their father. She told Ms. Iafrate that if she is required to stay with her mother, she will be “really upset.”
[11] Tyler in his separate meetings confirmed that his mother yells at him and then he has to yell back. Tyler said that when he is at his mom’s place, he missed his dad, and when at his dad’s place, he misses his mom. There is a poignancy to this evidence which, in an ideal world, would prompt his parents to focus on his needs and best interests as opposed to their own differences.
[12] Tyler told Ms. Iafrate that initially he wanted to live with his dad but now he does not know. He will hurt his mom’s feelings and does not want her to get mad again.
[13] There was evidence that Ms. Atkinson had coached her children before their OCL interviews. Victoria said that her dad told her to tell the truth but her mom told her what to say and what not to say. At one of their meetings, Ms. Iafrate observed that Tyler was hesitant and extremely cautious about what he said. He worked hard to appear neutral. Ms. Iafrate believed that he had been coached.
[14] According to Victoria, her mother was mad after one session and accused her of telling Ms. Rashid, the OCL lawyer, that she yelled a lot. Her mother said that she made her look like a “bitch” and a “really bad parent.” Ms. Atkinson preferred it if she did not say that again; it was overly dramatic.
[15] At the end of one of his interviews with Ms. Rashid at the beginning of September 2020, Tyler asked her not to tell his mother what he had said.
[16] A social worker and psychologist by the name of Steve DeGraaf has met with Ms. Atkinson and the children on about five occasions. The goal was to discuss strategies to manage the children. The children expressed their issues with their mother. Victoria wanted more freedom and her mother would often lose patience and get upset with them. In their last session at the end of July 2020, both children were very angry especially Tyler. He was disrespectful and rude to his mother.
CONCLUSION
[17] Mr. Atkinson feels that his wife is vindictive, angry and bitter. He emphasizes that she had no right to move to Port Credit without his agreement. Ms. Atkinson’s submissions consisted for the most part of an unremitting stream of invective against her husband. She focussed on her husband’s violence against her. She appeared very angry. The major accusation was that he would frequently grab her by the throat and lift her off the ground. Ms. Atkinson noted in her submissions that many women died of domestic abuse this year. She called her husband a liar. And she denied coaching her children before their OCL interviews. When asked what she had to say about Victoria preferring to live with her husband, she essentially said that because she is 15 years old, it was her prerogative.
[18] She admitted in her affidavit that she sometimes raises her voice and yells when her children misbehave but was adamant that this was not verbal abuse. She does not engage in name calling or putting down of her children.
[19] It cannot be stressed enough how invaluable the participation of the OCL is in these circumstances. Without their assistance, a finder of fact is adrift on the emotional welter of embittered allegations and inuendo with no practical way to make a legitimate decision. The OCL provide a reliable factual foundation for determining the best interests of the children and an effective means to ascertain their views and preferences (see Section 24(2)(b) of the Act).
[20] In this case, Victoria’s views are not seriously challenged by Ms. Atkinson. I accept what she says about life at her mother’s house and her preference to live with her father. Although Tyler is torn, I accept that for him too, his best interests lie in living with his father. It is most unfortunate that the conflict has come to this overwrought, highly charged juncture. But the stability of the environment at their father’s home (Section 24(2)(f)), and their relationship with the father demonstrate that the children’s best interests are to live with the father at the present time. I accept that the environment in the mother’s home is stressful, high conflict and that she often yells at the children.
[21] I am deeply skeptical of the wholesale allegations of frequent, life threatening abuse made by Ms. Atkinson against Mr. Atkinson. He candidly admitted his fault in the incident seven years ago and was remorseful. He received the lowest penalty provided in the Criminal Code, a discharge. It is germane that the 2016 occurrence report did not lead to a charge because the police felt that Ms. Atkinson was inconsistent in her versions of events.
[22] In the result, the application is allowed. The children are to reside primarily with the father and attend school from his home. The parenting schedule will be to reside with their father except to reside with their mother overnight from Friday until 6:00 p.m the next day, Saturday. The following weekend Ms. Atkinson will have the children the entire weekend, beginning Friday after school to Sunday at 6:00 p.m. The upcoming weekend following the release of these reasons will be the one night of access; the following will be two nights. This pattern will then be continued.
[23] I will also order that neither parent will disparage the other parent in front of the children or disparage the litigation process itself.
Harris J.
DATE: October 5, 2020
COURT FILE NO.: FS-19-94432
DATE: 2020 10 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Darryl Atkinson v. Jennifer Atkinson
BEFORE: D. E. Harris J.
COUNSEL: F. Rashid for the Office of the Children’s Lawyer
ENDORSEMENT
Harris J.
DATE: October 5, 2020