COURT FILE NO.: FC-17-2045
DATE: 2021/02/12
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: February 8, 2021
ENDORSEMENT
[1] I heard a motion for contempt in relation to this matter on December 10, 2020. Since the motion was argued, the OPP records and a closing CAS letter have been issued to the parties. These records were ordered disclosed by Shelston J., who was case managing this matter. I adjourned the contempt motion for 90 days. I ordered that access be reinstated with the father visiting the children every second weekend at in Ottawa. The visits took place. The father now indicates he is unemployed and cannot continue to facilitate access in Ottawa.
[2] Given the length of time that this matter has been proceeding, a brief review of the facts relating to the family, and the chronology of events is required.
[3] The first daughter MW was born on August 20, 2006 and the second daughter BW was born on January 25, 2009. The girls are both teens now.
[4] During their marriage the parties raised the 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.
[5] 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.
[6] Access visits took place with the father at his home in Bracebridge, Ontario, which is about five hours away from the girls’ home in Ottawa. The girls spent 10 hours in the car on access weekends between Friday at 6 p.m. and Sunday at 6 p.m.
[7] Since the mother’s move to Ottawa, the girls have their own activities and social events on the weekends and object to travelling 10 hours in a car to see their father. 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 girls maintain good grades.
[8] The girls’ reluctance to exercise regular access and an erosion in the communication between the parties led to the mother bringing a Motion to Change the 2014 Final Order of Justice Bale. She sought sole custody of the girls and an order that access to the father be on a “to be determined” basis. The father responded by bringing a motion seeking sole custody of the children.
[9] The parties attended a Case Conference on March 2, 2018. Justice Engelking ordered the involvement of the OCL. This order also granted the mother permission to bring a motion on an expedited basis to suspend the father’s access.
[10] 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 permit father time to retain counsel and respond.
[11] 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.
[12] 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. 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.
[13] The OPP then opened an investigation into the allegations. No charges were laid. Dr. Nedecheva indicated that MW had concerns about being forced to attend visits with her father and was worried about being hit by him again. In July of 2020, MW clarified to Dr. Nedecheva that she had been hit multiple times by her father, that she was afraid to see him on visits and was afraid of being alone with him.
[14] Dr. Nedecheva 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 MW’s 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 of CAS and OPP records and therapeutic intervention for the family.
[16] In the context of that 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 regarding 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 the suspension of access.
[18] Justice Shelston, found that the motion lacked urgency, except for the issue 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] Justice Shelston ordered that the father may file an urgent motion for contempt of court and other relief regarding custody and access to the children. The matter was before me on the contempt motion on December 10, 2020. As of the date of that motion, the father had not had access to his children since June 7, 2020. The father sought an order finding the mother in contempt of the Final Order of Justice Bale dated July 25, 2014, granting him access every second weekend.
[21] Justice Shelston ordered that the CAS and OPP records be disclosed to the parties. The OPP records have now been disclosed, and a closing letter provided by the CAS. Justice Shelston granted the father leave to bring a contempt motion and granted the mother leave to bring a motion for a Voice of the Child Report. The matter then proceeded to the contempt motion before me on December 10, 2020.
[22] At the December 10, 2020 motion, Ms. Ahmad-Yousef, on behalf of the children, indicated that they did not wish to see their father in Bracebridge, generally, and specifically, they had no desire to spend Christmas with their father. As indicated in my December 11 ruling, they do not necessarily get to decide.
[23] I deferred the ruling on the contempt motion for 90 days. I ordered that the father and children immediately engage in reunification counselling with a mutually agreed upon counsellor in Ottawa.
[24] I ordered access to the children by their father every second weekend in Ottawa for 10 hours. The visits could be structured to the mutual convenience of the parties, that is, on either the Saturday, or Sunday, or be split over both days. I ordered that access begin on December 19 and take place without interference of the mother.
[25] The matter returned before me February 8, 2021. The Applicant mother, who is the Responding party on the contempt motion confirmed that the parties have retained the services of reunification counsellor Victoria Hasbani.
[26] Ms. Hasbani wrote to counsel on January 12, 2021 advising that she would begin virtual intake meetings with the father and the mother and would like to offer in-person sessions with MW and BW followed by family meetings.
[27] The mother had her intake interview with Ms. Hasbani on Thursday, January 21, 2021 and drove MW and BW to meet with Ms. Hasbani for their intake meeting. The father had his intake session with Ms. Hasbani on Sunday, January 24, 2021.
[28] The mother reports that the children were anxious before their first meetings with their father, but were willing to give it a try.
[29] The father visited the girls from about 11 a.m. to 2 p.m. on December 19, 2020 and from 9
a.m. to 4 p.m. on December 20, 2020. The visits were arranged to not interfere with the children’s activities. The father visited the children on the weekend of January 2-3, 2021. A third visit took place on the weekend of January 16-17, 2021. Due to COVID-19 restrictions, the visits took place in a hotel room and no activities were scheduled outside of the hotel room. COVID-19 restrictions impacted the activities which could be carried out during those visits.
[30] The first visit was before COVID-19 lockdowns and the father was able to eat a meal and do some Christmas shopping with the girls. The father indicated that due to the allegations made against him, he felt it appropriate to bring Kristi, his girlfriend with him to the visits.
[31] The father is requesting that the Final Order of Justice Bale resume. The father has been unemployed since June 2020 and is in receipt of the CERB benefit, and then the CERB/EI as of October 2020. He receives $896 biweekly. He had anticipated being able to start a full-time job in January of 2021, but with the lockdown which came into effect in December 2020 and the attendant stay-at-home-order, the start date for his new position was postponed indefinitely. The father indicates that he is paying child support based on an income of $38,000 per year, s.7 expenses and cannot afford to attend two trips to Ottawa per month, plus his share of reunification counselling, plus his own living expenses.
[32] Ms. Ahmad Yousef, on behalf of the children, indicated that the children were not happy to see their father’s girlfriend had attended the visit of December 17, 2020. Further, the children do not want to see their father at his home in Bracebridge until counselling has taken place. They are firm in this view.
[33] The mother indicates that she is happy that the children are seeing their father, but would like to be able to communicate with him directly to ensure a greater chance of success to the visits,
for example, making sure the girls have the appropriate clothing for any outdoor activities, or board games which interest them. The girls enjoy card games. The mother indicates that it would be a cost saving measure if the parties could communicate directly with each other rather than through counsel.
[34] The father has indicated that he is unable to continue to see his children in Ottawa due to his unemployment. The children have only recently been having visits with their father in Ottawa as per my order. I am sympathetic to the father’s plight. He may have to discontinue the visits to Ottawa to see his daughters, or visit them less often. Given the fact that contact with their father has only recently been reinstated, I am not willing to order these teenage girls to travel to Bracebridge to see their father in the absence of meaningful progress with the reunification counselling. I appreciate the dilemma the father faces, especially due to his now limited financial resources. It is in the best interests of the children that they see their father, however, in my view, it is not in their best interests to be forced to attend access visits in Bracebridge at this point in time.
[35] If the father is unable to attend twice a month, perhaps visits could be arranged by the parties on a less frequent basis. If the parties could agreeably communicate with one another without animus, this would also cut down on costs, and may improve the quality of the visits.
[36] Once the reunification process has progressed, it is expected that access can occur once again in Bracebridge. However, access has just resumed in Ottawa, after a considerable lapse in time. The children are also teens with strong views regarding being forced to attend Bracebridge. It is also relevant to my determination of this issue that reunification counselling is at a nascent stage. I am not satisfied that ordering the girls to visit their father in Bracebridge is in their best interests at this time, despite restoration of their relationship with their father being in their best interests. Restoration of the relationship will have to take place gradually under the guidance of the reunification counsellor. I also agree with counsel for the Applicant, Ms. Cooligan, that it would be premature to determine the issue of contempt at this point in the proceedings. I decline to do so. I order the contempt motion to be adjourned to be dealt with at the Motion to Change. At that time there will be a complete evidentiary record, including the OPP records, and the CAS records, as only a closing letter has been provided in the latter case.
[37] One of the important factors which must be considered, despite the merits of the application per se, is the impact that a finding of contempt against the mother would have on the girls. They have only just resumed seeing their father again. The family has embarked on reunification counselling. These are positive steps toward re-establishing the father’s relationship with these teens. The complex family dynamics arising in this case cause me to conclude that caution should be exercised regarding the use of the power of contempt as an enforcement tool in these circumstances.
A.E. London-Weinstein J.
Date: February 12, 2020
COURT FILE NO.: FC-17-2045
DATE: 2021/02/12
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: February 12, 2021