COURT FILE NO.: FS-14-81793
DATE: 20210225
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
James Scot Thomson
Applicant
- and -
Jill Fleming
Respondent
Shawn Philbert, for the Applicant
Self-represented
HEARD: February 25, 2021 (by Zoom)
RETURN OF MOTION FOR ACCESS (Seventh 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 a prolonged time thereafter, 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 six decisions on this matter[^1]. In my previous 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 as a mediator. He has been working with the family since early May 2020 in co-operation with Kaelin’s therapist, Ms. Erin Powley.
[5] In my most recent decision of January 27, 2021, I observed that, based on reports from Mr. Cross and Ms. Powley, there has been virtually no success in rebuilding the relationship between Kaelin and Scot. Both professionals have concluded that, while Scot needs coaching on parenting techniques, Jill is the major obstacle to the reunification of Kaelin with her father. They observed, in particular, a) Jill’s ability to “say the right words, yet model something different”, and b) that Kaelin’s anxiety is “largely transferred” from Jill.
[6] Both professionals recommended that the parents engage in co-parenting sessions with Danny Firestone of PEACE Psychotherapy. They also recommended an increased access schedule, whereby weekly visits would steadily increase and move to overnight visits by the end of February 2021. In my last decision, based on considerable input from counsel, I ordered such a schedule to be implemented.
[7] Shortly after, Jill terminated her retainer of Ms. Rashid, and is now representing herself. (Today’s motion was convened at 8:30 a.m., to accommodate Jill’s work schedule). More significantly, both recommendations have floundered. First, the materials filed for today’s motion indicate that the visits over the last month have been rocky. Although there have been brief intervals where Kaelin and Scot get along, for the most part Kaelin has been defiant and frequently violent. Examples include punching holes in the walls of Scot’s home and throwing off her seatbelt while in the car with him. Moreover, it again appears that Jill, if not outright encouraging that misbehaviour, is tacitly condoning it.
[8] As a result of that behaviour, and in particular Scot’s apprehension of further violent encounters with Kaelin, on today’s motion Mr. Philbert asserted that Scot does not wish to continue with the access schedule until the parties can get support and direction from Mr. Firestone.
[9] Second, although both parents insist they are eager to begin co-parenting sessions with Mr. Firestone, his retainer has been delayed by a completely unnecessary squabble over his fees. Despite my clear instruction in my last decision that “the costs of any interventions shall continue to be paid by the parties in proportion to their incomes”, Jill (who has a significantly higher income than Scot) argues that Mr. Firestone’s fees should be split 50/50. She complains that she has run out of money for any further interventions, particularly given the ongoing expenses associated with Mr. Cross and Ms. Powley. Jill has also terminated her retainer of Ms. Rashid, for what she states are financial limitations, and is therefore now representing herself.
[10] My response to that is twofold:
As both Mr. Cross and Ms. Powley have repeatedly stated, Jill is the major impediment to the reunification of Kaelin with her father. Jill has therefore brought much of this litigation and associated therapeutic expenses upon herself;
Jill has been told by Mr. Cross and Ms. Powley that going forward, her “time and money would be better spent meeting with [Mr. Firestone]” rather than further sessions with them. Therefore, for the immediate future, Jill’s focus should be on funding sessions with Mr. Firestone, rather than on incurring further debt with Mr. Cross and Ms. Powley. (This should not be construed by Jill as relieving her of any outstanding fees owed to Mr. Cross and Ms. Powley.)
[11] Finally, further unnecessary quarrels have arisen over proper methods of communication on this file. Both parties improperly forwarded emails to the court without copying the other side. Also, Jill recently changed her email address from the one previously identified by her counsel and set out in my endorsement of August 5, 2020 (at para. 7). For clarity, Jill’s email address going forward is ja_fleming@mail.com. Based on the materials filed, I am satisfied that, despite Jill’s insistence otherwise, Mr. Philbert’s materials for today’s motion were in fact served upon her at her current address and with sufficient notice.
[12] I therefore order as follows:
The parties shall immediately engage Mr. Firestone for co-parenting sessions and comply with his recommendations;
The costs of Mr. Firestone’s involvement shall be paid by the parties in proportion to their income;
The access schedule set out in my decision of January 28, 2021, is suspended pending further recommendations from Mr. Firestone;
Ms. Fleming’s email address going forward is ja_fleming@mail.com;
Any communications with the court by Mr. Philbert or by Ms. Fleming must be immediately copied to the other side;
Mr. Philbert shall immediately provide a copy of this endorsement to Mr. Firestone, Mr. Cross, Ms. Powley, and Mr. Thomson.
Costs
[13] As stated above, today’s motion was necessitated by Jill’s unreasonable refusal to agree on the retainer arrangements for Mr. Firestone. While Jill claims she is overwhelmed by the financial demands of this case, she continues to act in a way that prolongs the litigation and requires further interventions, each of which comes at a price. A message needs to be sent that her actions have consequences. For today’s motion, which was entirely unnecessary and could have been averted by her, she shall pay $2,500 in costs (inclusive of HST and disbursements), to be delivered to Mr. Philbert by no later than March 25, 2021.
Baltman J
Released: February 21, 2021
COURT FILE NO.: FS-14-81793
DATE: 20210225
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 (Seventh hearing)
Baltman J
Released: February 25, 2021
[^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), Thomson v. Fleming, 2020 ONSC 7176 (November 20, 2020) and Thomson v. Fleming, 2021 ONSC 702 (January 28, 2021)