SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-13-988-3

DATE: 2021/02/18

RE: Christopher Martin Alfred Lee, Applicant, Represented by Emma Costain

-and-

Shannon Rae Archer, Respondent, Represented by Cheryl Hess

BEFORE: Justice P. MacEachern

HEARD: Motion heard February 18, 2021, by videoconference

E N D O R S E M E N T

[1] This motion was brought by the Applicant father, seeking an order referring this matter to the Office of the Children's Lawyer (OCL), case management, and parenting time with the parties' two children, now ages 12 and 14.

Office of the Children's Lawyer

[2] The Respondent mother consents to an order referring this matter to the OCL. I have signed this order today.

Case Management

[3] The Respondent mother consents to this file being case managed. Whether this matter can be case managed or not is subject to the court's capacity to do so. Given the disposition of the parenting issues, which will be returning before me as set out below, I will leave the issue of whether this matter will be case managed by myself or, subject to the approval of the local administrative judge, by another judge, to the return of this motion.

Procedural Issues

[4] There is a procedural issue in this matter. It is not clear if the current court file was resolved on a final basis in July of 2018, in which case a new proceeding needs to be commenced.

[5] The Applicant has undertaken to the court to file a new Application or Motion to Change to immediately remedy any procedural issues upon confirmation of the status of the proceedings in 2018. The Applicant's counsel, who was recently retained, is taking steps to confirm the status by reviewing the court file. Unfortunately, the court file is offsite, and needs to be returned from storage. I have made it clear to the parties that the procedural issues need to be addressed as soon as possible and spoken to at the return of this motion. If the procedural issues are not dealt with in a timely manner, ultimately, if there is an extended delay, the current proceedings will be stayed pending the procedural issue being addressed. Any interim order will cease to be in effect. The court must avoid a situation where litigation is happening outside of a properly constituted proceeding, and temporary orders are allowed to linger.

[6] On July 4, 2018, I made an endorsement that provided for an order to issue according to signed Minutes of Settlement. Counsel has provided me with a copy of the July 4, 2018 Order issued under my endorsement, but not a copy of my endorsement. The issued July 4, 2018 order is marked as interim, although the terms provide for the parties to attend mediation/arbitration to address the issues in the proceeding, suggesting it is a final order. The mediation/arbitration did not occur.

[7] The Respondent's counsel has a copy of my July 4, 2018 endorsement, and presumably, the Minutes signed that day, which may clarify the situation. She has agreed to provide the Applicant's counsel and me with a copy. She can do so by emailing a copy to my assistant Mary Kydd, at [ ].

[8] If the endorsement and Minutes from July 4, 2018 do not clarify the situation, we will need to wait for the court file's return.

[9] Again, the procedural issues need to be addressed at the return of this motion.

Parenting Contact

[10] The parties dispute what order should be made for the father to have contact with the children pending finding out if the OCL will become involved in this matter and provides further information arising from any involvement.

[11] Before October of 2019, the parties had an equal timesharing arrangement and joint custody. In October of 2019, the father was imprisoned due to convictions related to workplace fraud. The father was released from prison, on parole, at the end of June 2020. He has not had contact with the children since October of 2019.

[12] The Respondent mother states that the children do not want to contact their father at this time. The Respondent mother also opposed the Applicant father's requests for access when he was imprisoned. The Applicant father states he has been seeking access since being imprisoned, and the Respondent mother has obstructed his requests.

[13] The Respondent mother also raises several allegations about the Applicant father's parenting that pre-date his imprisonment.

[14] The children are in counselling with Margo Shabinsky. The Respondent mother has provided to the court two reports from Ms. Shabinsky that indicate the children are content with their current living situation with the Respondent mother. Notably, the reports do not state the children's views on having contact with their father.

[15] The Applicant father strongly believes it is in the children's best interest to have contact with him as soon as possible. He proposes a graduated increase in contact for this purpose, to be reviewed when the OCL involvement is known. The father does not believe that the children do not want contact with him and points out that there is no reliable evidence supporting this.

[16] I agree that the information I have about the children's views and preferences is not reliable. However, the Respondent mother is convinced that the children should not have or do not want contact with their father at this time. Even if the children would like some contact, they would be in a conflicted position to do. In the father's best-case scenario, being that the children want contact with him, this would still mean that the children are in a bind because of their mother’s opposition. Making an order for access without further information and care raises concerns about risks to the children's well-being.

[17] For this reason, I am not prepared to order the graduated access that the father seeks at this time.

[18] I have invited the parties to explore an intake process with a counsellor in the area of parent-child contact resistance. The mother may have benefits to assist with the cost of such an approach. The father has financial limitations that may limit access to such a process, but he needs to explore his financial options as well. The parties also need to find a counsellor who is willing and qualified to provide this assistance and confirm what the process would entail. The parties have agreed to make these inquiries and return before me in approximately four weeks with their positions on such an approach.

[19] However, I am concerned with the ongoing delay in the father having contact with the children, particularly given the delays to date. On the evidence before me, I do not find that there is any basis for believing that the current problems will simply solve themselves if no contact is allowed to persist. Instead, the opposite is much more likely, being that the children's resistance to contact will become more ingrained, and raise significant concerns about their development, particularly their ability to form, navigate, and maintain relationships in the future. These risks must be balanced with the risk that if the father has contact with the children before more is known, he may do so in a manner that makes the situation worse.

Disposition

[20] In balancing these factors, in the interim, pending the return of this matter as directed below, I order the following:

a. Subject to the agreement of the children's counsellor, Margo Shabinsky:

i. The Applicant father shall send a letter to the children via Ms. Shabinsky for Ms. Shabinsky to review with the children at a counselling session;

ii. After that, the Applicant's father shall have a videoconference session with the children conducted in Ms. Shabinsky's presence.

b. The intention is that the above steps take place as soon as possible, before the return of this matter, subject, again, to Ms. Shabinsky's agreement to be involved as set out above and her availability to do so.

[21] Both parties indicated their consent to the above process on today's motion, although as noted, the Applicant father sought additional contact, which I am not ordering at this time.

[22] The Respondent's mother consents to the Applicant father speaking to Ms. Shabinsky and Ms. Shabinsky sharing information with the father at her discretion and taking into account her primary role as the children's counsellor. Ms. Shabinsky’s ability to prioritize the children's interests, their therapeutic relationship, and her professional obligations must be preserved and respected. But subject to this, the parties agree and intend that the Applicant father would be able to interact with Ms. Shabinsky in a similar manner as the Respondent mother has through her intake process with Ms. Shabinsky and from time to time after that at Ms. Shabinsky's discretion. An order is made accordingly.

[23] This motion is adjourned to a date to be scheduled through the Trial Coordinator's office in approximately four to six weeks. The return of the motion shall be scheduled for one hour before me. Factums are not required for the return of the motion. Each part may file additional motion material for the motion's return following the rules.

[24] Costs are reserved for the return of this motion.

Dated: February 18, 2021 __________________

Justice P. MacEachern