COURT FILE NO.: FC-17-2045
DATE: 2020/12/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Susan Patricia Pickard, Applicant
-and-
Geoffrey Arthur Wood, Respondent (Moving Party on the Contempt Motion)
BEFORE: A.E. London-Weinstein J.
COUNSEL: Katherine Cooligan, for the Applicant
Kristie Smith, for the Respondent
Hana Ahmad-Yousuf, for the Children
HEARD: December 10, 2020
ENDORSEMENT
Introduction and History of the Proceedings:
[1] The parties were married on October 15, 2004, separated on February 6, 2013 and divorced on November 24, 2014. Their first daughter MW was born on August 20, 2006, and their second BW was born on January 25, 2009.
[2] During their marriage the parties raised their children in Bracebridge, Ontario. After the parties separated, the children lived with the Applicant mother and saw the Respondent father on the weekends due to his work schedule as a trucker.
[3] Shortly after the separation, the mother brought an application for custody and for permission to move with the girls to Ottawa for employment purposes. At the conclusion of the trial, Justice Bale ordered joint custody and permitted the mother to move to Ottawa with the children. The father was granted access and MW and BW had access with their father on alternating weekends, from Friday evening until Sunday evening, and for two weeks each year in July and August. Christmas vacations and March break were shared equally.
[4] Access visits with the father took place at his home in Bracebridge, Ontario which is about five hours away from the children’s home in Ottawa. The parties exchanged the children mid-way between their two homes in Barry’s Bay, Ontario. The children spent 10 hours in the car on access weekends between Friday at 6:00 p.m. and Sunday at 6:00 p.m.
[5] Since the mother’s move to Ottawa, the children have become more deeply involved in extracurricular activities, and are more interested in socializing with friends on weekends. The girls now object to the long commutes to and from Bracebridge.
[6] MW is heavily involved in swimming and is a member of a competitive swim team. BW is a competitive hockey player and is dedicated to the sport. Both children manage to balance demanding training schedules with academic commitments. Their grades are excellent.
[7] The reluctance of the children to exercise regular access and an erosion in the communication between the parties led the mother to bring a Motion to Change the 2014 Final Order of Justice Bale. She sought sole custody of the children and an order that access to the father be on a “to be determined” basis. In response, the father brought a motion for an order for sole custody of the children.
[8] The parties attended a Case Conference on March 2, 2018. Justice Engelking ordered the involvement of the Office of the Children’s Lawyer (OCL). This order also granted the mother permission to bring a motion on an expedited basis to suspend the father’s access.
[9] The mother brought that motion in April of 2018. The motion material alleged emotional abuse and yelling by the father, his partner and his mother. The matter was adjourned to allow the father time to retain counsel and respond.
[10] Ms. Ahmad-Yousuf was appointed by the OCL and conducted a series of interviews with the mother, father, children and interested third parties. She was assisted by Janet Claridge, an OCL clinician. Disclosure was provided on October 29, 2019.
[11] The children continued to see their father. However, on June 5, 2020 MW disclosed physical abuse by her father to her psychologist, Dr. Nedecheva. She alleged that her father grabbed her, pushed and shoved her, and hit her. Dr. Nedecheva contacted CAS on June 8, 2020, and the CAS opened an investigation into the allegations. Ronda Turner, the CAS investigator recommended that the mother withhold access pending her investigation. The mother withheld access, relying on the advice of Ms. Turner.
[12] Shortly thereafter, the OPP opened an investigation into the allegations. No charges were laid. Ms. Claridge reported that the investigations were concluded without charges, but this has not been confirmed.
[13] Dr. Nedecheva wrote a letter, dated July 20, 2020 detailing her subsequent visits with MW. The concerns included:
a) June 19, 2020: MW expressed concerns about the outcome of the CAS and OPP investigation, and being forced to attend visits with her father;
b) July 10, 2020: MW stated that she did not wish to visit her father since she anticipated being hit by him again; and
c) July 20, 2020: MW clarified that she was hit multiple times by her father. She reiterated that she was afraid of going on visits and that she was afraid of being alone with him.
[14] Dr. Nedecheva also recommended that, given MW’s anxiety and the events divulged in the therapy sessions, any decision regarding MW’s access and visits with her father should be made by giving weight to her wishes.
[15] In July of 2020, the mother brought a motion during the suspension of regular in-court operations due to COVID-19. She sought a variety of relief including the temporary suspension and/or supervision of the father’s access, orders for the disclosure CAS and OPP records, and therapeutic intervention for the family.
[16] In the context of the motion before Justice Shelston, Janet Claridge swore an affidavit on August 6, 2020 to provide the court with the children’s views and preferences. Ms. Claridge confirmed in that Affidavit that MW reiterated the allegations of abuse, and that both girls were refusing to meet with their father. Ms. Claridge also raised concerns regarding the independence of the children’s expressed preferences, as well as concerns with regard to the consistency of those expressed preferences.
[17] The mother claimed that her previous counsel advised her to withhold access after the CAS advised it could no longer support a suspension of access.
[18] The motion was heard by Justice Shelston, who found that the motion lacked urgency, with the exception of the suspension of the father’s access. Justice Shelston declined to suspend the father’s access.
[19] Justice Shelston seized himself of the matter as Case Management Judge and ordered that the parties appear before him for a Case Conference on September 17, 2020.
[20] At a recent Case Management Conference on September 17, 2020, Justice Shelston ordered that the CAS and OPP records be disclosed to the parties. He granted the father leave to bring this contempt motion and granted the mother leave to bring a motion for a Voice of the Child Report.
[21] Justice Shelston also clearly expressed in his endorsement of September 17, 2020 that “The Applicant refuses to allow access until she has the CAS and OPP records have been produced [sic]. I order that the Respondent may file an urgent motion for contempt of court and other relief regarding custody and access to the children.”
[22] The father has not had access to the children since June 7, 2020.
[23] The Respondent father brings this motion for an order finding the mother in contempt of the Final Order of Justice Bale dated July 25, 2014 which grants his access every second weekend.
[24] On October 20, 2020 the mother’s counsel served a notice of Change of Counsel on the father. The father agreed to allow the mother an extension of one month of time to provide disclosure and respond to the father’s amended motion as set out in Justice Shelston’s September 17, 2020 endorsement.
Conclusion:
[25] The children are 14 and 12. While they have advised Ms. Ahmad-Yousef, they have no desire to see their father in Bracebridge, generally, and specifically they have no desire to spend Christmas with their father, they do not necessarily get to decide. The evidence shows an erosion of the relationship between the girls and their father. The reasons for that may be due to a number of factors, including outside influence. Whatever the origin of the problems in the father/daughter relationship, I find it is in the best interests of the children that their difficulties with their father be worked out. However, in order that the relationship be repaired, some professional assistance will be required. Forcing the children at this point to travel 10 hours in a car every second weekend when they do not wish to do so, will not, in my view, achieve the desired result and may do further harm to the relationship.
[26] The father requested that counselling take place in Bracebridge during access visits. I am not prepared to order counselling in Bracebridge as both girls live in Ottawa and are adamant that they do not wish to travel to Bracebridge. The visits to Bracebridge involve 10 hours of driving for the children at a time in their life when they have many demands on their time. I appreciate that this will be a sacrifice for the father, however, in my view it is a necessary sacrifice to help restore his relationship with his girls.
[27] After carefully reviewing the material provided, and the submissions of counsel, including those of the OCL, I am deferring my ruling on the contempt motion for 90 days. Counsel may arrange for a return date in front of me through Trial Co-ordination. I am further ordering that the father and children immediately engage in reunification counselling with a mutually agreed upon counsellor in Ottawa. This can be done by Zoom if COVID-19 restrictions prevent in-person attendance. The mother is not to influence or interfere with this counselling.
[28] If the parties cannot agree upon a mutually acceptable counsellor in Ottawa, the matter is to return before me within a week—or as soon as practicable given my schedule, counsel’s schedule and the urgency of this matter—with a list from each party of three counsellors willing to act and I will order the appointment of a reunification counsellor in Ottawa.
[29] The children have indicated they would be willing to see their father in Ottawa for a few hours. I am of the view that access should take place in Ottawa every second weekend. I appreciate that the girls have not seen their father since the spring of 2020 and that they have demands on their time on the weekends. Therefore, I order that the father see the children in Ottawa for 10 hours every other weekend. This visit can take place on either the Saturday, or Sunday, or be split over both days, depending on the mutual convenience of the parties. For greater clarity, access is to begin on December 19 and is to take place without interference from the mother. I realize that this order is far from the one sought by the father. I appreciate his frustration at the fact that his relationship with his girls has eroded. However, given the age of the girls, their entrenched views regarding visits with their father, and their opposition to travelling to Bracebridge, in my view, professional support in the form of reunification counselling, and a gradual approach to restoring consistent access is in the best interests of the children and is appropriate in this case.
[30] This is an interim order, and time is of the essence, given that the father has not seen the children since the spring of 2020. The allegations relating to alienation will be dealt with on a more fulsome record when this matter is concluded by way of the Motion to Change or trial. The critical issue at this juncture is to restore access, which is to resume next weekend in Ottawa. The cost of counselling is to be shared equally between the parties on a without prejudice basis to any reapportionment which may occur upon a determination of the Motion to Change. Costs on this motion for contempt and cross motion will be dealt with when we return to deal with the pending contempt matter. If there are particulars requiring clarification on an immediate basis, I can be reached through my judicial assistant.
A.E. London-Weinstein J.
Date: December 11, 2020
COURT FILE NO.: FC-17-2045
DATE: 2020/12/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Susan Patricia Pickard, Applicant
-and-
Geoffrey Arthur Wood, Respondent (Moving Party on the Contempt Motion)
BEFORE: A.E. London-Weinstein J.
COUNSEL: Katherine Cooligan, for the Applicant
Kristie Smith, for the Respondent
Hana Ahmad-Yousuf, for the Children
endorsement
A.E. London-Weinstein J.
Released: December 11, 2020