COURT FILE NO.: FS-14-81793
DATE: 2020-11-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
James Scot Thomson
Shawn Philbert, for the Applicant
Applicant
- and -
Jill Fleming
Faryal Rashid, for the Respondent
Respondent
HEARD: November 20, 2020 (by teleconference)
RETURN OF MOTION FOR ACCESS (Fifth hearing)
Baltman J
[1] The parties married in June 2012 and separated in May 2014. Their daughter, Kaelin (born October 6, 2012) is now 8 years old.
[2] Scot was exercising regular access until late June, 2019, when a physical altercation occurred (involving both parents and Kaelin) during an access transition. For some considerable time after, Kaelin – with Jill’s support – refused to see Scot.
[3] This parenting dispute first came before me in early April, 2020. Since then I have issued four decisions on this matter.[^1] In my initial decisions I determined that a) Jill had been wrongfully withholding access; and b) the parties needed a parenting mediator who would facilitate a resumption of access.
[4] After some delay, the parties retained Mr. Steven Cross, who has been working with the family since early May. Access was initially resumed through daily video calls. In his initial progress report (dated August 2, 2020), Mr. Cross observed that while both parents had made some progress, Jill was still projecting her resentment of Scot onto Kaelin and Scot needed to improve how he interacted with Kaelin and respond better to her fears.
[5] In his report of October 13, 2020, Mr. Cross opined that “it is imperative that the momentum needs to speed up such that face to face visits between Kaelin and Mr. Thomson occur more regularly and frequently.” He recommended that such visits occur “weekly”, be of short duration, and that Jill not participate.
[6] On the October 22 hearing the parties agreed that in person access visits between Scot and Kaelin should resume as soon as possible, and agreed to the specific terms (timing, location, etc.) Four visits have occurred since that date. The transitions (from one parent to the other) on each visit have been problematic, aggravated by both Scot and Jill recording the events.
[7] In his most recent report of November 12, 2020, Mr. Cross observed:
Both parents have cooperated in attending joint meetings to plan and review the visits;
Both he and Erin Powley (Kaelin’s therapist) believe that Kaelin’s anxiety is “largely transferred by [Jill] and that this continues to be problematic”;
Jill and Kaelin are “very enmeshed” and there is concern that Kaelin continues to sleep with her mother;
Both he and Ms. Powley have strongly recommended that Kaelin must sleep in her own bed;
Kaelin is strongly resisting visits with Scot, and appears to believe that such behaviour will bring the visits to an end;
Kaelin’s views about these visits “needs to be changed such that she sees these visits as normal and as part of her life”;
The parents agree that Kaelin’s visits with Scot need to increase in duration, but wish to do so in a way that makes the visits a positive experience for Kaelin;
Both parents agree that they should work together with Mr. Cross and Ms. Powley to determine the frequency, length and location of the visits through joint four-way mediation sessions;
Visits should occur at least weekly and gradually increase in length.
[8] Subsequent to that report, Ms. Powley provided a summary of a recent access visit (November 15). At Mr. Cross’s request, I have reviewed that as well. The report is very disturbing. It confirms that Kaelin, in a highly manipulative fashion, continues to resist even brief access visits with Scot, despite the encouragement of Ms. Powley and positive efforts by Scot to welcome and involve Kaelin within his home.
[9] Scot is now seeking that his access be expanded to a full weekend visit and that it proceed as a “black out period”, during which Kaelin is to have no communications – by any means – with Jill.
[10] I am extremely troubled by Kaelin’s entrenched refusal to engage positively with Scot. Whatever his past mistakes, it is apparent Scot is now making a sincere and concerted effort to welcome Kaelin and connect with her. It is also apparent that Jill is not doing enough to promote Scot’s relationship with Kaelin. In particular, there is a striking absence of consequences to Kaelin’s defiance. She appears to believe she can dictate how she will be parented by acting destructively when she doesn’t get her way, without facing any consequences from Jill. As I stated in my decision of April 2, 2020, at paras. 29-31:
[I]t is highly likely that that reaction is, if not encouraged by Jill, at least tolerated. It should not be. Our Court of Appeal has observed that a parent has a positive obligation to ensure that a child complies with an access order. While parents are not required to do the impossible in order to avoid a contempt finding, they are required to do all that they reasonably can: Godard v. Godard, 2015 ONCA 568, at para. 28.
Instead of condoning Kaelin’s resistance to access, Jill has a responsibility to strongly persuade her to participate. As Mossip J. observed in Reeves v. Reeves, [2001] O.J. No. 308 (S.C.), at para. 38:
Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent’s inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentist or doctors. It is the responsibility of good parents to ensure the children go to school, go to doctors, and go to the dentist. Good parents manage their children’s health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.
[11] Even though I issued that Ruling over seven months ago, Jill is still unable or unwilling to manage Kaelin’s behaviour or impose effective consequences to her misbehaviour. Jill must immediately take assertive and consequential parenting steps to achieve a meaningful improvement in Scot’s access visits with Kaelin. Those steps must include the types of measures that a loving but prudent parent would take when faced with other forms of misconduct or refusal from a child. They should include Jill explaining to Kaelin, as often as necessary, her expectations for the child’s behaviour during access and her strong support for those visits. The child must see no distance between her parents in that regard.
[12] Those steps should also include the imposition of tangible, proportionate and if necessary, escalating consequences for the failure to abide by Jill’s articulated expectations. Such consequences may include but not be limited to: time outs, withholding of favoured activities, deprivation of electronic devices and any other measures that Jill may use when Kaelin misbehaves. If, after the types of steps set out above are taken, the access does not improve, I will have to seriously consider Scot’s suggestion to impose an increasing form of black-out access, so that Kaelin gets the message that she cannot rely on improper behaviour to sabotage her access visit.
[13] Going forward I order the following:
i) The parents shall work together with Mr. Cross and Ms. Powley to determine the frequency, length and location of the visits through joint four-way mediation sessions;
ii) Visits shall occur at least weekly and gradually increase in length;
iii) Neither parent shall videotape or record Kaelin or the other parent during the transitions;
iv) Jill shall ensure that Kaelin sleeps in her own bed;
v) Jill shall immediately take assertive steps to achieve a meaningful improvement in Scot’s access with Kaelin, failing which I will consider imposing a form of black out access for Scot;
vi) Scot shall persist in locating an individual counsellor and begin sessions with that person in the immediate future;
vii) Scot shall pay his share of any accrued invoices from Ms. Powley as they relate specifically to her treatment of Kaelin, proportionate to his income.
[14] If necessary, this matter may resume before me at the request of either counsel.
[15] Counsel are to immediately provide a copy of this endorsement to their respective clients, as well as Mr. Cross and Ms. Powley.
Baltman J.
Released: November 23, 2020
COURT FILE NO.: FS-14-81793
DATE: 2020-11-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
James Scot Thomson
Applicant
- and –
Jill Fleming
Respondent
RETURN OF MOTION FOR ACCESS (Fifth hearing)
Baltman J
Released: November 23, 2020
[^1]: Thomson v. Fleming, 2020 ONSC 2036 (April 3, 2020); Thomson v. Fleming, 2020 ONSC 3357 (May 29, 2020); Thomson v. Fleming, 2020 ONSC 4724 (August 5, 2020); Thomson v. Fleming 2020 ONSC 6454 (October 22, 2020).