Court File and Parties

COURT FILE NO.: FC-16-FS051856-0000

DATE: 2020-11-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GLENN CHELSOM, Applicant

AND:

NARVY HINOJOSA-CHELSOM, Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Yervant Boghossian, Counsel for the Applicant Narvy Hinojosa-Chelsom, Unrepresented Respondent Ernest Putman, Counsel for the Child

HEARD: November 4, 2020

ENDORSEMENT

[1] Mr. Chelsom brings a motion seeking equal parenting time with respect to the parties’ daughter, Emma Susan Natalia Chelsom, born July 20, 2009 [“Emma”]. He relies on Emma’s view’s and preferences as set out in the Affidavit of the OCL Clinical Investigator, Glory To, and as advanced by Emma’s OCL lawyer, Mr. Putman.

[2] Ms. Hinojosa-Chelsom seeks an order that Mr. Chelsom’s motion be dismissed.

[3] For the reasons set out below, the motion is dismissed.

Materials Reviewed

[4] I do not have access to the physical court file given the current COVID-19 context. I have considered the following materials which were filed electronically for this motion:

Notice of Motion dated October 22, 2020

Affidavit of Glenn Chelsom sworn October 22, 2020

Affidavit of Narvy Hinojosa-Chelsom sworn October 28, 2020

Affidavit of Tove Schmidt sworn October 28, 2020

Affidavit of Glory To, sworn October 30, 2020

Affidavit of Glenn Chelsom sworn November 2, 2020

Brief Background

[5] This matter has been in motions court on numerous occasions.

[6] The parties were before me for a motion three years ago, on September 20, 2017. On October 10, 2017, I made temporary orders regarding parenting time, child support, and spousal support. Specifically, with respect to parenting, I made the following orders:

a. That Emma reside with her mother and spend time with her father on an alternative two-week schedule as follows: one evening and one overnight in week one, and two evenings and a weekend from Friday to Sunday in week two;

b. That the parties share holiday time in accordance with a schedule set out; and

c. Telephone time for each parent when Emma is in the care of the other parent.

[7] I also requested the involvement of the OCL, given the high conflict nature of the case, which was apparent even at that time.

[8] The temporary Order has now been in effect for over three years. Since the hearing of the motion in 2017, the matter has continued to be high conflict.

[9] On January 29, 2018, Justice Glithero found Ms. Hinojosa-Chelsom to be in contempt of my Order, in respect of certain parenting terms. There is no allegation in the materials for this motion that Ms. Hinojosa-Chelsom has not subsequently complied with the temporary Order.

[10] The parties attended questioning in October of 2019. At that time, assisted by counsel, Ms. Hinojosa-Chelsom gave a series of undertakings, which she did not answer. On March 11, 2020, Justice MacLeod ordered Ms. Hinojosa-Chelsom to answer the undertakings within 30 days, as well as costs against her of $3,154.00. As was the case when the matter was before me on September 2, 2020, the undertakings remained unanswered.

[11] On September 2, 2020, following a change in his employment circumstances, Mr. Chelsom brought a motion to reduce child support, suspend spousal support, suspend the enforcement of arrears, as well as to strike Ms. Hinojosa-Chelsom’s pleadings. I granted financial relief. I did not grant the order seeking striking of Ms. Hinojosa-Chelsom’s pleadings due in large part to Mr. Chelsom’s failure to pay any of the spousal support ordered in my 2017 Endorsement.

[12] A Settlement Conference was to take place on October 19, 2020. Ms. Hinojosa-Chelsom did not file a brief and did not attend. The matter has now been set to a Trial Management Conference to take place in approximately eight weeks, on January 15, 2021.

Mr. Chelsom’s Position

[13] Mr. Chelsom says that it is in Emma’s best interests to have equal parenting time with her parents. He points out that Emma is 11 years old, and that her views have been consistent throughout this litigation. He expresses concern about the extent to which Ms. Hinojosa-Chelsom has involved Emma in the litigation and, he says, attempted to alienate Emma from him.

Ms. Hinojosa-Chelsom’s Position

[14] Ms. Hinojosa-Chelsom’s position is that Emma either wants the “status quo” parenting situation, or to spend all of her time with her mother. She says Emma’s “true views” are not being accurately relayed by Mr. To or represented by Mr. Putman, and that Emma has told her this repeatedly.

Evidence on the Motion

[15] It is Mr. Chelsom’s evidence that Emma’s wants to live with him 50% of the time on a week-about basis. It is Ms. Hinojosa-Chelsom’s evidence that Emma wants to continue the status quo or be with her 100% of the time.

[16] Although it is clear what Mr. Chelsom wants on this motion, his materials provide very little evidence that speaks to Emma’s best interests, apart from her views and preferences.

[17] Mr. Chelsom says that he and Emma currently spend their time together eating dinner, doing homework, talking to one another, and going on various outings and walks.

[18] However, he does not provide evidence as to how, if Emma’s residence were changed as he seeks, her best interests would be better supported. He does not provide evidence about how he would support her schooling, what the daily routines would look like, what activities she would be involved in, or other ways in which Emma’s circumstances would be improved. Although he is concerned that Emma’s mother involves her in the litigation, it is not clear how he believes this would change with an adjustment to the parenting schedule.

[19] Although Mr. Chelsom alleges parental alienation, he has not provided evidence about the general progress of the parenting schedule since it was ordered in 2017, or about whether, after the finding of contempt against Ms. Hinojosa-Chelsom, there was general compliance with the Order.

[20] Apart from her position on Emma’s views and preferences, Ms. Hinojosa-Chelsom’s materials provide some evidence that speaks to Emma’s best interests. She says she was and is the primary caregiver, and that she provides Emma with a stable home environment. She also states that she has a strong support system nearby which includes her parents and Emma’s aunts and uncles with whom Emma has strong emotional ties. The evidence is not detailed.

[21] Ms. Hinojosa-Chelsom suggests that Emma is fearful of her father and that she has exhibited a “great deal of fear and anxiety in connection” with her father. She says that Emma being agitated to the point of vomiting due to fears of her father is “not an anomaly.”

[22] There are several concerning pieces of evidence on this motion:

[23] Mr. Chelsom attaches an email that he says Emma sent to him stating that her mother was “forcing me to wright (sic) things that aren’t true about the meeting with my lawyer.” Ms. Hinojosa-Chelsom asserts that the address from which the email was sent does not belong to Emma. She says she had an acquaintance send Emma an email to that address. The response was in part “I am emma.” I do not know how this assists Ms. Hinojosa-Chelsom. Mr. Chelsom in reply attached a print out showing countless emails received from Emma from that email address.

[24] Ms. Hinojosa-Chelsom attached two crayon drawings to her affidavit which she says were drawn by Emma in May 2018 and which she says raise concerns about Emma’s safety in her father’s care. (They were also attached to her materials for the September 2020 motion.) She says the first picture shows Emma being shaken by her father, crying and being extremely upset. The second picture shows Emma being barricaded inside her father’s apartment. Ms. Hinojosa-Chelsom says these pictures relate to two incidents in which Mr. Chelsom was aggressive with Emma. Mr. Chelsom expresses shock at seeing these drawings and suggests that they were drawn by Ms. Hinojosa-Chelsom herself. Without cross-examination, I am unable to arrive at conclusions about the authenticity of or meaning to be ascribed to the drawings.

[25] Ms. Hinojosa-Chelsom attached as an exhibit an Affidavit of her friend Tove Schmidt, sworn October 28, 2020. Ms. Schmidt says that she is like an aunt to Emma, and that she has “serious concerns” about Emma’s well-being. She states that Emma has told her, in response to Ms. Schmidt’s questioning, that she would “prefer to spend all of her time with her mother if she could.” She says that Emma said she doesn’t understand why her lawyer doesn’t tell people what she really says to him. I have great difficulty with this affidavit. If Ms. Schmidt did what she set out in the affidavit, she took it upon herself to question Emma as if she were a social worker or OCL lawyer. This is completely inappropriate.

OCL Investigation and Update

[26] As set out above, the court requested the involvement of the Office of the Children’s Lawyer in this matter. The OCL assigned clinical investigator Glory To as well as counsel Ernest Putman to represent Emma. Given the nature of the involvement, there was no “report” of the clinical investigator. Therefore, the court has little information about the process that was followed by the OCL, any collateral information that was obtained, and documents reviewed, or any “facts” as found by the OCL in their work.

[27] The one-and-a-half page affidavit of Mr. To sworn October 30, 2020, filed for this motion, sets out that the OCL initially met with Emma on five occasions. On April 12, 2019, a disclosure meeting was held with the OCL, in which the OCL advised that Emma’s views and preferences were that she reside in a shared parenting arrangement with her parents, on a week-on/week-off schedule. The affidavit does not provide any “recommendations” or refer to other evidence that would speak to the question of what is in Emma’s best interests.

[28] The affidavit indicates that the OCL recently became re-involved. Mr. To and Mr. Putman met with Emma twice by Zoom, first on October 13, 2020, and then on October 29, 2020. Both meetings with Emma took place while she was with her father. Mr. To states that he observed that Emma had privacy for the meetings with him and Mr. Putman.

[29] Mr. To states that in those two meetings, Emma reiterated that her views and preferences are that she have a shared parenting schedule. He states that she “clearly, strongly, openly and without hesitation” stated her views. Emma told him that she continues to wish to live 50/50 with each parent on a week about basis.

[30] Emma also told Mr. To that her mother had told her to write in her journal that she wants to live full time with her mother. She also confirmed that she sent her father the email referred to above. Emma also told Mr. To that she did not make the statements set out in Ms. Schmidt’s affidavit.

[31] It was unclear in Mr. To’s affidavit exactly how Mr. To became re-involved in this matter. In response to questions from the Court it became clear that while Ms. Hinojosa-Chelsom was told that there would be interviews with Emma, she was not offered the possibility of having an interview take place while Emma was in her care. Emma’s counsel stated that there was concern that the mother would involve Emma and about whether she would be left alone for the interview.

Legal Framework

Interim variation

[32] There is a significant difference between applying to vary an interim versus a final order. In general, an interim order is intended to continue until trial. Interim orders are generally varied only in exceptional circumstances.

[33] A material change of circumstances must be shown to vary either an interim or final order.

Best Interests

[34] This motion is governed by the best interests test as set out in the Divorce Act. The Court is to make parenting decisions in the best interests of the child.

[35] Best interests, it should go without saying, is not determined only with reference to child’s views and preferences. Views and preferences are one factor, given weight in accordance with the age and maturity of the child.

[36] Other factors considered when assessing best interests include, but are not limited to: the status quo, the maximum contact principle, and the ability and willingness of each parent to meet the child’s needs. The factors set out in section 24 of the CLRA are instructive interpreting best interests.

Implementation of Assessment Report or Recommendations on Interim Basis

[37] Courts are generally cautious about implementing assessment reports or OCL recommendations on an interim basis. It is usually preferable for the status quo to continue until trial, unless there is a “compelling reason” to change the arrangement in the best interests of the child. Benko v. Torok, 2012 CarswellOnt3479. See also Grant v. Turgeon, 2000 CanLII 22565 (ON SC), [2000] O.J. No. 970 (Ont. S.C.J.) paragraph 15 and Daniel v. Henlon, 2018 ONCJ 122.

[38] In general, interim implementation of OCL reports and assessments should be discouraged. There is usually no opportunity at the motions stage to undertake a full analysis and evaluation of all aspects of the report. It is preferable for disputed facts to be resolved in a trial setting with the benefit of cross-examination. See Batsinda v Batsinda 2013 ONSC 7869, per Chappel J., at para. 32 and Marcy v Belmore, 2012 CarswellOnt 10105, per Pazaratz J.

[39] That said, there are cases in which a parent is found to be engaging in potentially alienating behaviour and parenting arrangements have been varied on an interim basis. See for example Clements v Merriam, 2012 CarswellOnt 14316 per Tobin J. See also O’Connor v O’Connor, 2017 ONCJ 48 in which the court implemented recommendations of the OCL pending trial.

[40] While many cases refer to the requirement that there be “compelling circumstances” or “exceptional circumstances” to change a status quo pending trial, in Bos v. Bos, 2012 ONSC 3425, Mitrow J. following factors for consideration when a court is asked to change temporary parenting arrangements, based on an assessment report, without a finding of “exceptional circumstances:”

a. How significant is the change that is being proposed as compared to the interim status quo?

b. What other evidence is before the court to support the change?

c. Is the court being asked to consider the entire report and recommendations, or only some parts, including statements made by children, or observations made by the assessor?

d. Are the portions of the report sought to be relied on contentious and if so has either party requested the opportunity to cross-examine the assessor?

[41] In Taylor v Clarke, 2017 ONSC 1270, 2017 CarswellOnt 3586, cited by Mr. Chelsom, the court stated that there should not be an “inflexible blanket prohibition” against considering any aspect of an assessment report on an interim motion, especially when that is the only independent evidence before the court.

Analysis

[42] I am not prepared to grant the relief sought by Mr. Chelsom for the following reasons:

a. It is unclear what the material change would be which would ground this motion.

b. If I am wrong and a material change has been shown by the evidence of Emma’s views and preferences, in my view, the evidence is insufficient to ground a change in the parenting arrangements pending trial.

c. The “assessment” evidence on this motion is limited at best. There is no “assessment report” or “clinical investigation report.” There is a one-and- a-half page affidavit from the OCL investigator setting out Emma’s views and preferences, as well as Emma’s comments about the email sent to her father and the affidavit of Ms. Schmidt. The OLC affidavit does not contain other evidence that would speak to Emma’s best interests.

d. I am concerned about the failure to ensure that Emma was able to have an interview while in the care of each parent, and the decision not to offer the mother the opportunity to have an interview in her home. It may be that the mother would not have cooperated, but she should have been given the opportunity to have an interview take place in her home.

e. I am unable to find that there are “compelling reasons” or “exceptional circumstances” which require a change of parenting arrangements pending trial.

f. Even applying the lower threshold, set out in Bos v. Bos, above, I am unable to find that this case meets the alternative, lower, test:

i. The change being requested is significant. Emma is currently with her father 6 nights out over every 28-day period, as well as evening visits. In seeking equal time, Mr. Chelsom seeks a significant change in the parenting arrangements which would result in the child being in his care 14 nights out of every 28;

ii. There is little evidence, other than the child’s views and preferences, to support the change requested. Mr. Chelsom’s affidavit contains minimal detail about how a change in residency at this time would be in Emma’s best interests. Best interests are not simply views and preferences;

iii. The OCL affidavit that the court is being asked to rely upon provides very limited evidence other than Emma’s statements. The court was provided with virtually no information about the process followed by the OCL initially, materials considered, other interviews conducted, or observations of the investigator other than with respect to the nature and strength of the child’s views;

iv. The statements in the OCL affidavit are hotly contested. While Ms. Chelsom’s lawyer argues that Ms. Chelsom could have sought to cross-examine Mr. To, the affidavit was sworn on October 30, 2020 for a motion argued November 4, 2020. I am unable to find that cross-examination on the affidavit was a realistic option for Ms. Hinojosa-Chelsom in the circumstances.

g. There are significant credibility issues in this case which require the opportunity for the court to hear oral evidence and the benefit of cross- examination. The court requires further evidence from the OCL investigator at trial about the investigation and process followed before placing weight on statements regarding Emma’s views and preferences.

[43] In reaching the conclusion that this motion must be dismissed, I am not applying a “inflexible blanket prohibition” on considering any aspect of the OCL evidence. Rather I am finding that the evidence of the OCL and Mr. Chelsom is simply not sufficient to dislodge a three-year parenting status quo, in the context of serious allegations that deserve closer scrutiny at trial. Credibility determinations are required and I am not prepared to make them on this motion and on these materials.

[44] However, I wish to be clear that although I am not granting this motion, I am concerned about several aspects of Ms. Hinojosa-Chelsom’s conduct. She appears to be involving the child in the litigation through the involvement of Ms. Schmidt, and what appears to be ongoing discussions with the child about the court case. This must stop. It is damaging to children to be exposed to conflict between their parents and to their parents’ litigation.

[45] I am also very concerned about the continuing delays in this matter. Ms. Hinojosa-Chelsom has not done her part to move this matter forward, first in not providing any Answers to her Undertakings, and then by not attending the Settlement Conference on October 19, 2020. This matter is presently set to a Trial Management Conference on January 15, 2021. I am making that attendance peremptory on Ms. Hinojosa-Chelsom. She should expect that the TMC will proceed whether or not she attends. This matter must now move forward to trial.

[46] Both parties should expect that the Trial Management Judge will set this matter to the April 2021 trial sittings as a matter of priority. The matter has long been pending and the conflict needs to be resolved for the child.

[47] Based on the foregoing, I make the following Order:

1. Mr. Chelsom’s motion is dismissed;

2. Both parties shall refrain absolutely from involving the child in the litigation and shall refrain from discussing issue related to the litigation with the child;

3. The Trial Management Conference scheduled to take place on January 15, 2021 is peremptory on Ms. Hinojosa-Chelsom;

4. The court will accept brief cost submissions, not to exceed three pages, double-spaced, each, with a bill of costs, on the following schedule:

Ms. Hinojosa-Chelsom: November 27, 2020

Mr. Chelsom: December 11, 2020

5. If costs submissions are not resolved on that schedule, the matter of costs will be deemed to have been resolved by the parties. Parties may not extend the timelines for costs submissions without the approval of the court.

L. Madsen J.

Released: November 12, 2020