Saco v. Royer, 2021 ONSC 2142

COURT FILE NO.: 278-2019

DATE: 2021/03/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CAROLYN MELISSA SACO

Applicant

– and –

HUGE JOCELYN ROYER

Respondent

G. Snir, for the Applicant

A. Southern, for the Respondent

M.J. Gauthier, for the Office of the Children’s Lawyer

HEARD: November 13, 2020

REASONS FOR JUDGMENT

Kane J.

Mother’s Motion

1The mother on her motion seeks the following interim or temporary, without prejudice orders:

Decision Authority

a. That the parties shall jointly make major decisions regarding their three children, Ethan now 17 years old, Emelie now 12 years old and Ella now 7 years old age, by consultation in writing in advance and failing agreement, by the mother as to the two daughters and by the father regarding their son; and

b. That either party shall be permitted to bring such issue to Court.

Primary Residence

a. That Ethan shall reside primarily with the father;

b. That Emilie shall reside primarily with the mother; and

c. That Ella shall reside during alternating weeks with each parent.

Parenting and Parenting Time

a. That Ethan to have liberal access with his mother in accordance with his wishes;

b. That Emilie shall have parenting time with her father:

• On Monday and Friday during week 1, from the end of school/school care until 7:30 p.m.;

• On Wednesday from the end of school/school care until 7:30 p.m., and on Saturday between 10 a.m. until 7:30 p.m., during week two;

• Emilie’s week two shall be the weekend that Ella resides with her father;

c. That Ella shall reside during alternating weeks with each parent;

d. That the children shall be allowed to maintain and have free, liberal and uninterrupted use of their mobile phone, including liberal communication as they wish with the other parent;

e. That pickup and drop-of the children shall be at their school when they are in school/daycare and otherwise at the end of each parent’s driveway by the parent who is suppose to have the children;

f. That each party encourage the children’s relationship with the other parent;

g. That neither party speak ill or degrade the other parent or their parenting role in front of the children;

h. That the parties do not involve the children regarding this proceeding or adult matters; and

i. That the parties attend parenting counselling and parenting courses regarding high conflict parenting.

Child Support and s. 7 Expenses

Based on the father’s $86,503 2019 annual income and the mother’s $39,814 2019 annual income and for so long as the child resides with the parent:

a. That the father shall pay $1,305 monthly child support for the two daughters;

b. That the mother shall pay $595 monthly child support for the son;

c. That the $710 offset of child support to be paid by the father shall commence on November 1, 2020;

d. That such child support obligation shall be enforced by the Family Responsibility Office (“FRO”); and

e. That the father pay the mother 66% of the daughters’ s. 7 expenses.

Father’s Motion

2The father on his motion seeks the following interim orders:

Decision Authority

a. That he will have sole interim decision-making authority regarding the parties’ three children;

b. That the parties attend a parenting course focused on high conflict parenting;

Parenting and Parenting Time

a. That the two daughters shall reside during alternating weeks with each parent;

b. That their older son shall reside with the father and shall have parenting time and contact with the mother in accordance with his wishes;

c. Access exchanges, when the daughters are not in school or daycare, shall occur at the 4 Corners store in Embrun, ON;

d. That the father, if the daughters during the mother’s parenting time are in daycare, will pick the children up after school at daycare;

e. That neither parent will attend the other party’s residence unless authorized to do so;

f. That the parties:

• shall not interfere with the parenting time of the other party;

• shall encourage the other parent’s relationship with the children;

• shall not in the presence of the children speak ill of the other parent;

g. That communication between the parties shall only be by email or through counsel; and

h. That the parties be required to support the children’s education, including their completion of homework and regular school attendance;

Section 30 Assessment

That the parties shall jointly retain Chantal Bourgeois to conduct a s. 30 parenting assessment regarding the children, with each party to equally share the cost thereof.

Background

3Some of the relevant facts regarding this family include the following:

a. The parties are each 42 years of age. They commenced living together in July 2001, married one another on August 25, 2002 and separated on September 21, 2017;

b. The parties have three children, namely:

i. Their son Ethan who currently lives with the father in Limoges, ON and is estranged from the mother;

ii. Their daughter Emilie who currently lives with the mother and is fearful of sleeping at her father’s home;

iii. Their daughter Ella who currently lives during alternate weeks with each parent;

c. Between September 2017 until June 2018, the parents resided under a nesting arrangement for a few months and then cohabited in different areas in the matrimonial home with each parent performing the parenting role during alternating weeks;

d. The father moved out in June 2018, resided in his parents’ camper until September 2018, then commenced residing with his parents which continued until June 2019 when he and his partner purchased a residence together where he has since resided;

e. The three children lived alternating weeks with each parent between June 2018 and June 2019 when their son commenced residing solely with the mother. The son then moved and resided with his paternal grandparents from October 2019 until June 2020 when he then commenced and has continued to reside solely with the father, with no communication with the mother;

f. The two daughters during alternating weeks resided in the home of each parent between June 2018 and April 2020, with the younger daughter Ella continuing to do so;

g. The mother notified the father in April 2020 that Emilie wished to reside solely with her. Emilie in April 2020 ceased residing during alternating weeks with the father. She saw him occasionally but refused to stay at his home overnight;

h. The father responded with a motion which the Court converted into a conference. The parties on May 6, 2020 signed temporary without prejudice minutes of settlement which state its terms are to be used as parenting guidelines and that, absent consent, are not to be incorporated into an order;

i. Those interim minutes of settlement state that:

i. The father is to encourage Ethan to communicate with his mother. Ethan’s sole residence with his father is not mentioned;

ii. Ella is to continue alternating weekly residence with each parent;

iii. Emilie is to continue to reside during alternating weeks with each parent, unless she advises the mother that she is opposed to living with the father, in which case she shall live solely with the mother who is to encourage her to resume week-about residence with each parent to address the child’s concerns aimed at re-establishing alternating weekly residence with each parent, failing which a motion may be brought as has now occurred.; and

iv. Valoris is to provide ongoing counselling to Emilie, with the parents to advise Valoris that the two other children may require such counselling;

j. The youngest daughter has continued residing during alternate weeks with each parent

k. The mother for linguistic reasons has difficulty assisting the two girls to complete their schoolwork. Their teachers have recommended tutoring for each daughter which the mother has not yet arranged when the girls reside with her. There is an issue as to Emilie not signing in on virtual school days while residing with her mother and that Ella is not doing her assignments and lacks motivation at school;

l. The father is a Federal Civil Employee and currently works from home during Covid-19;

m. The mother is employed as an inner-city support worker and works outside of the home when the daughters’ schools are open;

n. The daughters’ school closed due to Covid-19 between mid-March 2020 until September 2020, during which the father worked at home, as did mother between until May 2020 when she was required to return to work and placed the daughters in daycare while residing with her, which ends at 4:20 p.m.

o. School officials told the mother the daughters would benefit with aid of a tutor. The mother asked the father to agree to that. The father responded that the girls could come and do their homework with him at his home;

p. The youngest daughter requires speech therapy;

q. The mother obtained counselling through Valoris for Emilie in response to that child’s unwillingness to stay overnight at the father’s home. That counselling did not continue Emilie was unwilling to discuss and participate with the counsellor; and

r. As of November 13, 2020, Emilie was not visiting her father and had not seen him since October 6, 2020.

High Conflict

4There is high conflict between these parents since separation which has negatively impacted the children and the children’s relationship with the parents. Such conflict has included instances of:

a. The parents contacting and the involvement of police on seven occasions between 2018 and 2020;

b. The police receiving referrals from Valoris regarding this family and children in December 2018 and April 2020;

c. Communicating critically to the other parent in the presence of the children during exchanges of the children; and

d. The father’s admission that he on two occasions improperly shared email correspondence between the mother and himself with their son;

5The mother states she has encouraged the children’s relationship with their father and is favor of week about residence of the children with each parent. She contacted and involved police:

a. On April 3, 2020, when Emilie asked her mother to pick her up at her father’s home as she wished to return to her mother’s home;

b. On April 6, 2020, when Emilie again asked her mother to come and pick she and her sister up from the father’s home and the mother then attempted to do so; and

c. By filing a report on April 10, 2020 with police that the father without her knowledge had given sleeping medication to Emilie, who was experiencing nightmares, without prior consultation with medical officials.

6The father contacted police on April 8, 2020 to advise that the mother was not permitted on his property, as a result of which the mother was given a trespass notice.

7Valoris became involved with this family:

a. In response to a police referral in December 2018, related to an argument between the mother and Ethan, as to which Valoris concluded that:

i. the children were in need of protection due to the level of parental conflict and inappropriate discussions with them;

ii. there were no concerns with the father regarding excessive alcohol consumption, contrary to her current allegations; and

iii. the children reported the mother questioning them and feeling discomfort as a result; and

b. On April 7, 2020, regarding a dispute between these parents as to the mother’s wish to pick up Emilie during her then one week residence with her father, the father’s insistence that Emilie remain until the end of that week and that child reporting she was not sleeping well, was anxious and had body aches; and

Office of the Children’s Lawyer

8The Court on May 1, 2020, requested the involvement of the Office of the Children’s Lawyer (the “OCL”).

9The OCL appointed a lawyer to represent the children. The OCL lawyer interviewed the children. The OCL appointed a clinician to provide clinical expertise to assist counsel, pursuant to s. 89(3.1) of the Courts of Justice Act, R.R.O. 1990, c. C.43.

10The clinician appointed by the OCL filed two affidavits which contain the following comments made by the children during several interviews.

Ethan

11At 17 years of age, Ethan stated to the OCL that:

a. His relationship with his father has improved over time due, in part, to the fact his father is no longer drinking excessively as when he was a young child. That contradicts the mother’s affidavit that the father’s prior excessive consumption of alcohol continues to be problematic;

b. He enjoys living with his father and has no problems in that relationship;

c. He was angry at and wanted no contact with his mother until after conclusion of these proceedings, as he feels the mother is attempting to use his sisters against the father and he wishes to avoid the conflict between his parents;

d. He might resume communication with his mother at the conclusion of these proceedings; and

e. He had seen many acrimonious emails between his parents since their separation in 2017.

Ella

12The OCL clinicians’ affidavit as to 7 year old Ella states that:

a. Ella has a speech impediment, struggles at school in reading, writing and oral communication;

b. According to her teacher, Ella rarely participated with school during the pandemic between March and June, 2020;

c. Ella reported she only does homework when living with her father;

d. Ella consistently states that she enjoys living with each parent, wishes to live equal time with them and does not wish to change her existing week about residence with them; however

e. She misses and blames herself that Emilie no longer spends alternate weeks with her at their father’s home.

Emilie

13The OCL clinicians’ affidavit as to the then 11 year old Emilie states:

a. Emilie’s teacher reported that she is not independent and requires constant pushing to perform her schoolwork and her homework, which her mother cannot assist in because the schoolwork is in French;

b. Emilie feels closest to and wants to live primarily with her mother;

c. Although Emilie did not want to sleep at her father’s home because that caused her to feel anxious and stressed, she wants to see her father often, enjoys spending time with him, that he is nice to her, that he is not mean, that he does nothing that bothers her, that she likes his partner and her daughter, but remained silent and would not respond as to why she felt stressed, anxious and did not wish to have overnight access with her father;

d. As of October 21, 2020, Emilie had just had a good 3-4 hour visit with her father after not seeing him for one month, except he again pressured her about resuming overnight access. Emilie wanted to see her father regularly for 3-4 hours once or twice per week, but excluding sleeping there overnight;

e. During that third October 21, 2020 interview, Emilie explained her discomfort with sleeping at her father’s home at his new and current residence was because that caused her to hear voices, noises, to see dead people, body parts, zombies and animals which caused her fear and pain in her stomach during the night;

f. Emilie’s fear is real and causes her anxiety and difficulty sleeping; and

g. Forcing Emilie to sleep at her father’s home will negatively impact her.

14Submissions by OCL’s counsel during argument were restricted to Emilie and her current refusal to sleep at her father’s home. Counsel submitted that Emilie:

a. Wishes to reside only with her mother and is opposed to reside alternating weeks with her father;

b. Is expressing fear and is opposed to sleeping at the father’s home, despite the changes he has made in an attempt to address Emilie’s anxiety, such as using different bedrooms and having the child take non-prescription sleeping medication to help her sleep;

c. Is feeling pressured by her father to sleep over and resume alternating weekly residence with him;

d. Is unwilling to discus her fears, as attempted with a child counsellor or therapist;

e. Will, if so ordered by the Court, resist overnight access as occurred in her April 2020 refusal to exit her mother’s car;

f. Will be negatively impacted if attempts are made to force her to sleep at the father’s home and that therefore should not be ordered; and

g. Will benefit if access with her father is initially limited to one day per weekend in order re-build her level of trust, reduce her anxiety and re-establish her relationship with her father.

Analysis

Children’s Law Reform Act, s. 30 Assessment

15Correspondence between counsel acknowledge that Emilie has issues which she is not receiving treatment for as to the fear and anxiety she has felt since April 2020 at night when sleeping at her father’s current residence.

16Emilie’s anxiety during the night, her resulting avoidance of her father and his home since April 2020 despite what would have been the then presence of her sister and her brother, remains unexplained. The father submits that is a clinical issue and why a s. 30 Children’s Law Reform Act, R.S.O. 1990, c. C. 12, (“CLRA”) assessment of this family should be conducted.

17As to parental capacity under s. 30(1), the father is not seeking sole residence and parenting of the three children. He agrees the two daughters should continue to reside with each parent during alternating weeks, as does the mother.

18The mother points to her limited income and inability to pay for one-half of the $7,000 plus cost estimate by the father’s proposed assessor. That is a factor reflected in the case law.

19Much of the caselaw argued is fact specific, as is this case.

20Independent of the resulting cost and delay involved in a s. 30 assessment, the son and the youngest daughter should not be put through more questioning by another expert and this matter should not be delayed because Emilie currently rejects sleeping overnight at her father’s home.

21Emilie, like most of us, might well benefit from counselling. She would not however respond to the counsellor appointed by Valoris as to her fears. She was also reluctant to discuss those fears and reasons with the OCL. There is a risk she will do the same with a clinician on a s. 30 assessment if ordered, thereby resulting in additional cost and further delay.

22A s. 30 assessment of these parents, the children and the parties’ ability and willingness to meet the needs of these three children is not required nor ordered for the above reasons.

Residency and Best Interests of Child

23Given the age of the son and the youngest’s daughter’s willingness to continue alternating weekly access with each parent, Emilie is the central issue as to residence and parenting.

24The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) states that:

a. the only consideration for a court in deciding interim custody and access is the best interest of the child as determined by referenced to the conditions, means needs and other circumstances of the child;

b. in making such an order, a court is to give effect to the principle that a child should have as much contact with each parent as is consistent with the best interest of the child and for that purpose, consider the willingness of the parents to facilitate such contact; and

c. a parent’s past conduct is not relevant unless it impacts their parenting ability: ss. 16 (8), (9) and (10).

25The CLRA requires a court in determining what is in the child’s best interest to consider the child’s needs and circumstances, including:

a. The love affection and ties between the child and the parents;

b. The child’s views and preferences;

c. The length of time the child has lived in a stable home;

d. The ability and willingness of each parent to provide the child’s needs including guidance, education, the necessities of life and for any special needs;

e. The permanence and stability of the proposed family unit; and

f. The ability of each party to parent: s. 24(2).

26During several interviews with the OCL lawyer and its clinician, the children did not report anything that corroborates the mother’s allegations that:

a. The father currently has alcohol consumption issues;

b. The father disciplined Emilie as to her bringing left over pizza, cake and her use of electronic devices in his home;

c. Emilie recalled past instances of physical abuse by her father; or

d. Emilie reported physically harming herself in the past while in the care of her father.

27The father admits he prohibited Emilie from eating a pizza she arrived with on one occasion and discarded it the following day, that he directed Emilie to not eat some chocolates she brought on an occasion after Easter and that he on one occasion instructed her to stop using her iPad, took it from her and then threw or dropped it on the floor, but states that only caused a crack in its glass face.

28Both parties following their separation accepted and implemented an alternating and shared residence regime for the children. That alternating residence regime continued for the two daughters until April of 2020. The mother in her affidavit states she remains committed to alternating weekly residence of the two daughters, subject to Emilie’s current unwillingness to reside overnight at the father’s home. These facts evidence each party’s belief in the parenting ability of the other parent.

29The father agreed to his partner’s suggestion that Emilie try using sleeping pills. There are no other allegations that the partners of the parties constitute a problem as to the children. That speaks to the stability of the family units.

30The mother accepts that the son for the time being should continue to reside with his father and remains hopeful their relationship will start again upon conclusion of this litigation.

31The father does not similarly accept that Emilie for the present should sleep only at the mother’s home, despite the parties’ shared hope that her weekly alternating residence will soon resume.

32Each party alleges alienation misconduct by the other parent.

33Discussing with or revealing parental litigation communication to children, which the father did on at least two occasions with his son, is a form of alienation.

34Over impowering a younger child to decide matters and not actively supporting the existing alternating residence plan agreed upon and in place for a considerable time is a form of alienation. The mother cites instances of when she has encouraged Emilie to continue or resume day and overnight residency with her father. She however also came at Emilie’s request during the daughters’ week with the father as that daughter was then upset at her father. The mother also requested police to conduct a wellness check regarding Emelie on one occasion, without first speaking to that daughter. Such actions by the mother over-empower this 11-year-old in communicating she is in charge and may alter her residency schedule determined by the parents.

35Each parent has involved the children in their animosity towards the other parent.

36Given the joint position of the parties, the Court grants an interim order that:

a. That the existing alternating weekly residence regarding Ella continue; and

b. That the residence of Ethan, given his age, shall be with his father, with access to the mother if that son agrees to the same.

37In order to address Emilie’s current anxiety about sleeping at her father’s home, to move towards a resumption of that and her spending alternate weeks with each parent as sought by both parties, the Court orders on an interim basis that Emilie:

a. Be with her father for the next four Saturdays when Ella is also present on her week with her father, from 10:00 a.m. until 7:30 p.m.;

b. Then be with her father, during the same hours, on Saturday and every second Sunday, during the following four weeks when Ella is also present on her week with her father;

c. Then be with her father, during the same hours, on Saturdays and Sundays for the next four weeks when Ella is also present on her week with her father; and

d. Thereafter, until further ordered, be with her father on Saturday and Sunday during weeks Ella is residing with her father, from 10:00 a.m. on Saturday until 7:30 p.m. on Sunday.

38The Court understands this action will proceed to trail within the above time periods.

39The OCL is requested to meet and explain this interim residency order to Emilie and the Court’s request that she do her best to cooperate with this interim order made regarding her parents.

40The Court recommends Emilie receive counselling for a period of time as recommended by the counsellor, even if she remains silent for the initial sessions thereof.

41The father and the mother are ordered to not discuss this order with Emilie, including whether she is willing to advances the above dates or resume week about residence with each parent.

42The father and the mother are ordered to not directly or indirectly discuss this proceeding, their disputed with or the other parent, with or in the presence of any of the children.

Interim Parental Decision Authority

43Given the need the need of these parents to establish a polite and effective manner to promote the best interests of and raise these children, the Court makes the following interim orders as to parental decision authority:

a. The father, after consulting with the mother, will have final authority to determine issues involving their son and any religious issues involving the three children; and

b. The mother, after consulting with the father, will have final authority to decide other issues involving the two daughters.

44The parties are required to encourage the relationship of each child with the other parent.

Other Interim Parenting Issues

45The Court makes the following interim orders.

46The parties may communicate with one another in writing only, including through counsel.

47The mother, if still recommended by the daughters’ school, shall proceed forthwith and engage the services of a tutor during the weeks the girls reside with her. Each party shall be responsible for their proportionate share of that s. 7 expense.

48The parties agree that the drop-off/pickup location when the children are attending school and daycare shall be at the daycare. On other exchange days, the mother previously selected the 4 Corners store in Embrun but now seeks to change that to the entrance to their respective driveways because she states the father was verbally being abusive on exchanges of the daughters at that store location. The father opposes the mother’s attendance at his home, about which he has already complained to police.

49The parties on non-school or non-daycare days, will exchange the daughters at the same 4 Corners store in Embrun. They are prohibited on those occasions from communicating, directly or indirectly, with the other parent.

50The parties:

a. Shall not interfere with the parenting time of the other party;

b. Shall encourage the other parent’s relationship with the children;

c. Shall not in the presence of the children speak ill of the other parent; and

d. Shall not discuss with or allow the children to have access to communication between the parties, their counsel or communication or documents regarding this proceeding.

51The parties shall separately attend the same parenting course focused on high conflict parenting as soon as possible.

52Neither parent will attend the other’s residential property unless authorized by the other parent.

53Each party is required to promote and support the children’s education, including the children’s completion of homework and regular school attendance.

54During the presence of his daughter(s) in his home and in his care, the father shall not be absent for social activities on Thursday evenings and have his daughter(s) sleep at the paternal grandparents on such nights.

55The daughters shall have use of their cellular telephone and iPads until bedtime. While residing with one parent, the daughters are limited to one fifteen-minute telephone call per-day with the other parent, between 7:00 p.m. and 7:30 p.m.

Child Support and s. 7 Extraordinary Expenses

56The mother seeks interim offset child support and contribution towards extraordinary expenses.

57The father’s position is contradictory. He submits no such order should be made, however his affidavit in reply to the allegation of the mother states that the Court prior to this motion did not order him to pay interim child support and instead, that he consented to such an interim order.

58The Court is unable to find a consent order for interim child support, despite the father’s allegation that he consented to such an order. The point is that the father acknowledges that obligation.

59Given:

a. The father’s above consent to pay his share of interim child support;

b. The obligation of each party to contribute towards the support of their children;

c. The father’s $86,503 annual income in 2019;

d. The mother’s $39,814 annual income in 2019;

e. The son’s present exclusive residence with the father, as to whom the mother should be paying $595 monthly child support; and

f. Ella’s alternating weekly residence with each party and Emilie’s interim primary residence with her mother, as to whom the father should pay $1,305 monthly child support;

the father shall on the first day of each month, commencing November 1, 2020, pay the mother monthly off-set interim child support in the amount of $710.

60Such interim child support by the father shall be paid to and be recoverable by FRO.

61Based on their above 2019 annual incomes, the parties shall be responsible for and contribute their following proportional share of extraordinary expenses incurred for the children, upon prior written notice thereof by the parent claiming contribution and upon receipt by the other parent of a copy of the relevant invoice or quotation:

a. The father - 68%; and

b. The mother - 32%.

Costs

62The parties each share responsibility for their level of acrimony, which underpins the breadth of these multi-issue motions.

63Each parent has committed parental errors as above indicated.

64Success is divided.

65There shall be no order as to costs.