Court File and Parties

COURT FILE NO.: FC-20-509-0000

DATE: 2021-04-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gary Porteous, Applicant

AND:

Jennifer Fowler, Respondent

BEFORE: The Hon. Madam Justice S. Healey

COUNSEL: Evgeniy Osipov, for the Applicant

Jenivieve De Vries, for the Respondent

HEARD: April 1, 2021

ENDORSEMENT

[1] The parties have two children, Lucas (age 12) and Shayla (age 6). They separated in March 2020 and contact between the applicant father and the children has been an ongoing issue since then. There has been extremely limited contact; the parties have differing versions of why that is the case.

[2] On March 11, 2021 Justice McDermot made a temporary, without prejudice order for contact between the applicant father and the two children, on terms, to occur 3 weekends out of 4. He gave comprehensive reasons for doing so. One of the terms of the order is supervision, which provides as follows:

The contact shall be supervised by the Applicant’s mother or sister. Prior to the visit commencing, they shall each enter into a written undertaking to be delivered to the Respondent’s solicitor that they shall ensure the safety of the children during supervision, including the following:

i. They shall be present with the Applicant and the children at all times during the visit;

ii. They shall end the visit forthwith if the children are put at risk in any way and shall forthwith contact the Respondent if that occurs;

iii. They shall deliver the children to the Respondent if the visit is ended forthwith upon request; and

iv. They shall ensure that all applicable covid requirements are met during the visit.

[3] The OCL clinical investigator, Stephanie Kuiack, has scheduled a disclosure meeting for May 12, 2021. Justice McDermot adjourned the motion heard on March 11 to his list on June 17, 2021 to review the issue of contact with the children after that disclosure meeting has had a chance to occur.

[4] On March 30, Justice Casullo in her role as the triage judge gave leave for this newest motion by the father to be added to the list on April 1 as an urgent motion. I took the time to reserve my decision in order to carefully consider the evidence. Contact between the father and children did not occur on Saturday, April 2 as a result.

[5] The reason for the father’s motion is that the order of March 11, 2021 is not being followed.

[6] The ostensible reason for it not being followed is that Lucas has allegedly acted out in extreme distress after the order was made because of being required to see his father in person. Shayla has likewise said that she does not want to see her father since become aware, according to the mother’s affidavit, that she has to “be alone with her father”.

[7] Ms. De Vries, acting for the mother, stated to the court that it has been her client’s intention to move to change the order following the event involving Lucas, but that counsel’s own schedule has not permitted her to do that work. And she had only a day to prepare an affidavit for use on this motion.

[8] In addition to the affidavits filed for the motion I have reviewed the prior endorsements. Further, on this court’s own initiative I heard oral evidence from the respondent’s ex-boyfriend, who made himself available on short notice. That witness is Sean Dixon. Given the very short notice for the return of this motion, Ms. De Vries had not been able to prepare affidavits other than her own client’s affidavit.

[9] The reason that Mr. Dixon was asked by this court to testify was that he allegedly witnessed the incident involving Lucas, which occurred on Monday, March 15.

[10] Mr. Dixon was affirmed. He gave evidence, through his phone, that he was outside on his back porch while the applicant was upstairs in his house using the Zoom platform.

[11] Mr. Dixon’s testimony was that he walked into Lucas’ bedroom on the evening of March 15 to find Lucas lying on his bed, trying to strangle himself by tightening a thin red rope around his neck, with his face “as red as a tomato”. Mr. Dixon intervened and took the rope away. Mr. Dixon questioned Lucas about what he was doing, and according to Mr. Dixon, Lucas replied by saying “what else am I supposed to do to stop myself from seeing my father”. Lucas also remarked that he would rather be dead. Mr. Dixon testified that he and the respondent, who continue to reside together in his house for now, tried to console Lucas and that the respondent then called a suicide prevention hotline and Lucas was able to speak to a counsellor that night.

[12] The respondent’s evidence is that Shayla became aware of the incident at the time because of the level of distress in the household that night. The respondent says that this has further impacted Shayla’s negative outlook toward seeing her father.

[13] The respondent requests that contact under the March 11 order be temporarily suspended until after input is received from the OCL clinician. In the meantime, she asks that the children’s contact with their father occur virtually.

[14] The applicant wants the order of March 11 enforced by police intervention, with ancillary orders related to the children, and an order for questioning.

[15] The applicant does not accept that the incident involving Lucas is as the respondent and Mr. Dixon have described, or that either child is freely expressing his or her wishes. It is his position that:

i) the mother’s current opposition to his parenting time is part of a persistent pattern to attempt to alienate him from the children, ongoing since separation;

ii) The mother’s allegations did not arise until after separation and after he started this proceeding;

iii) The mother grossly exaggerates and catastrophizes events involving the children but provided no independent documentation about the events involving Lucas. He was not taken to the hospital for a psychological assessment, or taken to his family doctor;

iv) the evidence of Mr. Dixon and the mother is inconsistent and Mr. Dixon’s evidence is unreliable;

v) despite being aware of the incident involving Lucas, the OCL clinician has not taken any position on this motion despite the office being served, and simply wanted confirmation of when the father’s parenting time would occur. According to the mother, Ms. Kuiack has interviewed both children since the events of March 15, which occurred on March 26;

vi) The CAS has not opened an investigation despite knowing about the event and speaking with Ms. Kuiack about it, according to the respondent;

vii) There is no way that the OCL investigator can conduct an effective interview and do a thorough assessment unless the children are able to be in his presence;

viii) With the clock ticking toward the disclosure meeting set for May 12, it is imperative that he be able to spend time with the children as per the order of March 11 in order to solidly re-establish his relationship with them. He has only been able to spend a short Christmas visit with them, outside and with the mother hovering from her car, since last March.

[16] The mother’s position is that she is not brainwashing the children nor had she been attempting to limit the father’s access with the children up to this latest event with Lucas, but that the children oppose access because of how their father has treated them. They do not feel safe going to see him without her being there. She says she is protecting the children from the father’s abusive and erratic behavior.

[17] The York County CAS verified risk to these children from parental conflict related to custody and access, and use of physical discipline by the applicant, placing the children at risk of physical and emotional harm. The file is currently closed. This information was considered by Justice McDermot.

[18] It is the mother’s evidence that when she contacted the child protection worker after Lucas’ incident, the feedback was that Ms. Smith indicated that the file would not be re-opened because it was felt that the mother had handled the situation appropriately. With respect to the OCL’s input, it is the mother’s understanding that Ms. Kuiack indicated that she would be waiting until the disclosure meeting to provide any information.

[19] It would be tempting to try to delve into the allegations here and attempt a credibility assessment of the litigants based on their affidavits, but this is a case in which the court will definitely require assistance from the OCL, as the neutral investigator, to shed some light on the competing allegations. Suffice it to say that there is evidence in support of both parties’ positions about why the children are resisting contact with their father.

[20] The major question in the case is why this resistance has manifested itself. The major question for this motion is: what does the court do about that resistance, if new evidence is available that should cause it to change the order of March 11?

[21] To that end, this court must decide whether there is enough reliable evidence to conclude that Lucas is in extreme distress over the prospect of seeing his father. Based solely on the evidence provided by Mr. Dixon, I conclude that that is the case. Mr. Dixon was a witness in a unique position. His relationship with the respondent is over, yet his testimony showed that he has developed sympathies for the position in which the children have been placed. The applicant’s evidence is that Mr. Dixon contacted him by text last year to express animus toward the respondent, suggesting that the father come to pick up the mother and children from his house as soon as possible. The text message is in evidence; it leaves no doubt about Mr. Dixon’s negative assessment of the respondent. The respondent and children remain in his house currently, until such time that her purchase of the family home is completed, as the parties have agreed.

[22] At this time, nothing points to the suggestion that Mr. Dixon has a motive to provide evidence in support of the respondent’s position, other than the fact that she continues to live with him and he has expressed sympathy for the children. I accept that the living situation is temporary and circumstantial, and that Mr. Dixon has no motive to fabricate his evidence about what he saw and heard on March 15. I accept his evidence.

[23] I view this event in the context of the mother’s evidence, currently largely uncorroborated, that Lucas’ educators have contacted her with concerns that he has been expressing suicidal and self-harm thoughts to his classmates since January. In his evidence Mr. Dixon corroborated that information, noting that the “school had been calling” because of Lucas’ comments. Mr. Dixon also stated that Lucas feels that he has to protect Shayla, who is also expressing that she does not want to see her father in person.

[24] This is a very difficult situation. If the applicant’s theory is correct, any order that reinforces an atmosphere of alienation is repugnant to this court and not in the children’s best interests. If the respondent’s theory is correct, forcing the children into a situation where they push back harder against seeing their father, in whatever form that takes, is repugnant to the court and not in the children’s best interests.

[25] All professionals involved must strive to take all steps possible to ensure that these children are given the opportunity to have a healthy relationship with both parents, if that is possible. Time is running out, not because of the date of the disclosure meeting, but because of Lucas’ age.

[26] The options that the parties and their counsel have presented to the court are stark.

[27] The first is to order that the access occur as ordered by Justice McDermot, and that the police enforce it. In the face of a child who has exhibited the degree of resistance that Lucas has, that would be very unwise. I picture the applicant’s regret if his son was to seriously harm himself, even to the point of taking his life, as I think about the potential repercussions. What the father requests is simply not an option.

[28] The second option provided is to suspend all access other than virtually, while hoping that the Ms. Kuiack will accept Ms. De Vries request to delay the disclosure meeting. The court can invite the latter to happen but cannot order the OCL to delay. And if the OCL opts against delaying, there are a maximum of 4 weekends left for the applicant to connect with his children in person. Trying to do so virtually is extremely difficult after such limited contact in the past year and in the face of the children’s anger. Having his relationship with the children evaluated by Ms. Kuiack when they are interacting virtually prejudices him in this proceeding.

[29] In the face of another provincial lockdown starting on April 3, there are also limited options. It is not known whether the York Region CAS has the ability or willingness to provide the facility for in-person supervision, or whether that would appease the children’s distress. At present, they are uninvolved and if the respondent’s evidence is believed, they have decided not to reopen the file.

[30] Ms. De Vries suggests that the virtual access could occur through Social Enterprise Network, where a third party would observe and take notes. But the children are not objecting to virtual visits, according to the mother.

[31] What occurs to me on the evidence is that the children may not have been provided with full information about the scheduled contact under the March 11 order. They may not at this time understand that the applicant’s sister or mother will remain with them at all times. It is not known what they have been told about the order. Although Ms. Kuiack interviewed them on March 23, it is unknown whether she specifically discussed the presence of the children’s aunt and grandmother.

[32] I am led by the evidence to suspect that the children are half in the dark. The respondent’s evidence is that Shayla has told her that she does not want to “visit her father alone”, and that Shayla said the same to Megan Smith, the CAS child protection worker. But the interview with Ms. Smith occurred before the order was made. The respondent’s evidence is that after the last court date she told the children that they were going to have more visits with their father for two hours, and that this greatly upset them. Her evidence is silent about whether she told them that their aunt or grandmother would be there throughout the two hours.

[33] It occurs to me that the most appropriate individual to inform them of the terms of the March 11 order is Ms. Kuiack. The court appreciates that she will have demands on her schedule that may not permit this to occur, or that there may be reasons, unknown to the court, why her professional judgment or OCL guidelines may prevent her from doing so.

[34] It occurs to me that the next appropriate persons are the court-approved supervisors. They can offer direct reassurance to the children that they will be there at all times, and hopefully, can provide information about the activities that are meant to occur during such contact to help put the children at ease. The supervisors may encourage the children to attend but must never pressure them to do so. I appreciate that this is a fine line. I can only place faith in the expectation that these family members would not wish to cause the children further distress.

[35] It would be unnecessary for the supervisors to advise the children about the Covid protocols that have been ordered, other than to assure them that all precautions have been taken by the adults and that there is nothing for them to worry about.

[36] It is also unnecessary, and in fact prohibited, for them to discuss the reasons for the supervision or the basis for the order made on March 11.

[37] It would be ideal if Ms Kuiack could participate in that call in order to observe. Again, there may be reasons whey she cannot. Nonetheless I am ordering she be informed of the scheduling and provided with the call-in details.

[38] If the children express some interest in the visit but want time to think about it, a second virtual call is to be arranged as soon as possible, preferably between April 7-9 if feasible.

[39] If the children remain adamant that they do not want in-person contact with their father, the contact will occur virtually until further order.

[40] I have formulated two plans. Plan B requires that considerable responsibility be placed on the supervisors, and the parties, to be honest, transparent and candid about what the children say about contact with their father.

[41] The applicant has also asked that documentary disclosure be provided with respect to the incident involving Lucas. Given that he did not receive treatment from a health care provider at the time, this is not feasible.

[42] The applicant also asks for an order requiring the respondent to provide him with health care information and other documentation regarding the children. I will make an order to facilitate his access to all such information, but which puts the onus on him to collect it.

[43] The applicant also asks for an order for questioning. This is a file in which there are significant credibility issues raised. I am satisfied that questioning in these areas could reveal evidence about the ability of each parent to meet the children’s needs, and so such order will be granted.

[44] The respondent does not have a motion before the court, but asks for an order that the applicant be prohibited from bringing further motions on short notice. The father was granted leave to have this motion placed on the list on the basis of urgency. That is a tacit acknowledgement from the court that the motion, on its face, raises issues that require the court’s attention. I do not find that the father acted unreasonably in bringing the motion, in the circumstances. Nor do I find that the mother has acted unreasonably in not bringing the children for contact last weekend after the incident involving Lucas.

[45] Weighing all of this, and considering the evidence and arguments of the parties’ lawyers, this court orders:

(1) PLAN A is to be followed first, but if Stephanie Kuiack is unable or unwilling to carry out PLAN A, the parties shall follow PLAN B.

(2) A copy of this Endorsement shall be provided to Ms. Kuiack by applicant’s counsel forthwith.

PLAN A

(3) Stephanie Kuiack is requested to inform the children, between April 7 and April 9, of the terms of the March 11 order with respect to supervision, and to advise counsel whether the children express a willingness to have contact with their father with the supervisors present.

(4) If either child expresses a desire to have contact, both parties shall adhere to the order of McDermot J. for Saturday April 10 and thereafter for the child willing to attend.

(5) If either child expresses to Stephanie Kuiack that they do not want to attend in person, the provisions of the endorsement of McDermot J. at para. 18 (c)-(e) are suspended for that child. The provisions of para. 18 (a) and (b) remain in force, but such contact shall occur virtually until further order.

(6) In the event that the children express wishes that differ from one another’s the applicant’s parenting time on Saturday will be for a different two hour period with each child.

PLAN B

(7) The applicant’s sister and/or mother (the “supervisors”), shall be provided with the opportunity to contact the children virtually between April 7 and April 9 to explain their presence during any visit and to talk to the children about the visit. The respondent shall make the children available for that virtual call at the convenience of the supervisors.

(8) The applicant shall canvas the supervisors’ availability between those dates and provide dates and times to his counsel in order that he can facilitate the Zoom call.

(9) Once the date and time are determined, the applicant’s counsel shall host the virtual contact via Zoom but will not participate directly or indirectly in the meeting in order to not become a witness to the event.

(10) The parties shall be permitted to participate in the meeting(s) without turning on camera or audio, but the respondent must remain in a different room from the children during such virtual call(s) with the supervisors.

(11) The applicant’s counsel shall be permitted to record any Zoom meeting if he has the means to do so.

(12) The respondent shall not inform the children of the Zoom meeting until 10 minutes prior to the call.

(13) The supervisors shall follow the direction provided by the court in paragraphs 34 to 38 of this Endorsement, which they shall be informed of by the applicant’s counsel.

(14) Stephanie Kuiack shall be provided with the call-in details of any Zoom meeting(s) and may participate to the extent that she considers advisable.

(15) If either child expresses a desire to have contact, both parties shall adhere to the order of McDermot J. for Saturday April 10 and thereafter for the child willing to attend.

(16) If either child expresses to the supervisors that they do not want to attend in person, the provisions of the endorsement of McDermot J. at para. 18 (c)-(e) are suspended for that child. The provisions of para. 18 (a) and (b) remain in force, but such contact shall occur virtually until further order.

(17) In the event that the children express wishes that differ from one another’s the applicant’s parenting time on Saturday will be for a different two hour period with each.

(18) In the event of a dispute between the parties about the position taken by the children during the Zoom meeting with the supervisors, this motion shall return to court for review on Thursday, April 15, 2021 (maximum 30 minutes) for a determination to resolve that dispute. If that date is not required, applicant’s counsel must notify the family trial co-ordinator as soon as possible.

IN ADDITION TO PLAN A and PLAN B:

(19) The OCL is granted leave to extent the statutory deadlines in order to delay the May 12 disclosure date if the OCL deems it necessary and advisable in the circumstances of this case.

(20) Leave is granted to both parties for questioning.

(21) The applicant shall be entitled to obtain all information from third parties related to the physical or metal health or education of the children directly from the source without the requirement of the respondent’s consent to the release of such information.

(22) The respondent shall provide the applicant with copies of the children’s OHIP cards through counsel forthwith.

(23) Costs of the motion shall be borne by each party personally.

[46] The cost order is made on the basis that there is no clear path to saying that there was successful party on this motion. While ancillary orders were made in favour of the applicant in part, there is no evidence that such information has been requested directly from the respondent in the past, and denied, prior to the relief being sought from the court.

HEALEY J.

Date: April 6, 2021