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COURT FILE NO.: FC-19-2037

DATE: 2021/04/12

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Liane Louise Jonczyk, Applicant (Moving Party)

AND

Daniel Henry Tilsley, Respondent (Responding Party)

BEFORE: Mackinnon J.

COUNSEL: Rodney Cross for the Applicant (Moving Party)

Farhad Mehr for the Respondent (Responding Party)

HEARD: March 9, 2021

ENDORSEMENT

Introduction

1Should the court make a temporary order which would implement some of the recommendations made by an assessor in her parenting assessment or defer consideration of those recommendations until trial? The question arises in the context of parenting problems that have attracted eleven contacts by the Children’s Aid Society and thirteen by local police services since the parents separated in September 2019.

2The moving party is the applicant mother. The crux of the order she seeks is for sole decision making authority, primary residence, supervised exchanges of the child at the Muslim Family Services, and that the father have parenting time starting at step two recommended by the assessor (due to the passage of time between the report and the hearing date she agrees step one may be omitted) on Tuesdays from 8:30 a.m. to 6:30 p.m. and Saturdays from 8:30 a.m. to Sunday at 8:30 a.m. for three months. If all goes well, after three months the next step would change his parenting time to Tuesday at 8:30 a.m. until Wednesday at 6:30 p.m. in one week, and Saturday at 8:30 a.m. to Sunday at 6:30 p.m. in the alternate week. The mother also agrees to the next gradual increase as recommended by the assessor which would extend the alternate weekends from Friday at 5:30 p.m. to Monday at 8:30 a.m.

3The Society has expressed its support for the assessor’s recommendations.

4The respondent father opposes the motion and has delivered his own motion asking the court to address exchanges of the child and to increase his parenting time. His proposal is that the child should reside with him in one week from Tuesday at 3:00 p.m. until Thursday at 8:30 p.m., and in the alternate week from Friday at 3:30 p.m. until Monday at 8:30 a.m.

5A consent order was made on November 26, 2019. It provided for the child to continue to reside with her mother and for the father to have parenting time to start on Tuesdays, Thursdays, and Saturdays for three hours, increasing over the next few months to six hours on each of these days. There were conditions including that the father had to exercise his parenting time at his brother’s home.

6By partial temporary Minutes of Settlement dated February 19, 2020 changes were agreed to. The father’s parenting time would be on Tuesdays and Thursday from 11: 00 a.m. until 5:00 p.m. and every Saturday from 9:30 a.m. until 5:30 p.m.

7On behalf of the father it is submitted that the court should exercise caution in implementing an untested parenting report on a motion, especially where an interim order is already place. He submits that the court should guard against enabling a parent to use an assessment to gain a strategic advantage at trial. The father does concede that a motion court may have regard to the assessor’s own observations, to statements made to her by a parent, may act on an assessment if there is an urgent problem requiring immediate attention, or if there is other probative evidence consistent with or supportive of the assessor’s recommendations.

8A central dispute raised by this motion is whether the father’s parenting time should be increased gradually or immediately. I view the gradual approach as more appropriate. The father’s proposal to jump from forty day-time hours spread over a two week period to five overnights and more than double the amount of time is not in the best interests of this child in the context of her age and experience of events since her parents separated.

9To date there has not been an order or agreement in place respecting decision making authority. The father submits that awarding decision making to the mother would be a significant change that is not warranted by evidence before the court and ought not to be made before trial simply because or even though it is recommended by the assessor. His Notice of Motion did not ask for any decision making order, but from his submissions it is clear he wants shared decision making. My conclusion is that the mother should have a temporary order for decision making subject to some parameters which will be imposed.

Use of an Assessment before trial

10This court has recently reviewed the law on the use of an assessment on a motion before trial. In J.D. v. N.D., 2020 ONSC 7965 the court stated at paras 17 to 19, 21 to 23:

17The legal landscape has also changed since Grant v. Turgeon, which itself followed an earlier decision in Genovesi v Genovesi, 1992 8562 (ON SC), [1992] O.J. No. 1261. While its traditional test is still applied in some cases, for example Scutt v. St. Cyr, 2020 ONSC 1159 (child significantly impacted by parents’ inability to make timely decisions for child’s mental health); and Matteliano v. Burt, 2018 CarswellOnt 12417 (S.C.) (countless unsubstantiated allegations of abuse giving rise to parental alienation), other cases say that the jurisprudence has evolved. In Bos v. Bos, 2012 ONSC 3425 Mitrow J. stated at para. 23 and 27:

23… In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi. …

27It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.

18The court in Bos v. Bos at para 26 set out the following alternative factors to consider in lieu of requiring exceptional circumstances:

a. How significant is the change that is being proposed as compared to the interim status quo?

b. What other evidence is before the court to support the change?

c. Is the court being asked to consider the entire report and recommendations, or only some parts, including statements made by children, or observations made by the assessor?

d. Are the portions of the report sought to be relied on contentious and if so has either party requested the opportunity to cross-examine the assessor?

19Other decisions agreeing with Bos include Chelsom v. Hinojosa-Chelsom, 2020 ONSC 6926; Krasaev v. Krasaev, 2016 ONSC 5951; and Calabrese v. Calabrese, 2016 ONSC 3077.

21The mother accurately submits that there are many factual disputes between the parties reflected in the assessment. The question for the motion court ought not to be whether it can determine all the factual disputes between the parties, but whether it can determine essential facts showing whether or not a temporary change in the children’s living arrangements is in their best interests.

22Delaying a change in residential arrangements until trial is not always appropriate. Making a change sooner can be the better option. Courts have found this to be true in parental alienation cases. In Hazelton v. Forchuk, 2017 ONSC 2282 the court said:

75However, as noted at the outset of these reasons, there is one thing on which all participants agree – where parental alienation exists, it is manifestly important that steps be taken immediately. If they are not, the situation will only get worse. If the alienating parent continues to have unfettered access to the children, there is little doubt that the poisoning of the children’s minds will continue. At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible.

See also Ma. M. v. A.W.M., 2019 ONSC 2128 where a finding of alienation was made at the interim stage and residential changes were made to address it.

23In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and / or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial. A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.

11In Matsinda v. Batsinda, 2013 ONSC 7869, [2013] O.J. No. 7869, Justice Chappel reviewed the case law and the principles that apply in dealing with assessment reports on an interim basis and added the following at para. 32:

32 The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as statements made by children to the assessor, the assessor's observations respecting the parties, and their impressions regarding the parties' interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Bos v. Bos, 2012 ONSC 3425, 2012 CarswellOnt 7442 (Ont. S.C.J.)

12The child in this case is two years old. She has already been impacted by parental conflict and exposed to CAS and police involvement on multiple occasions. The earliest available trial date is September 2021, two months shy of a year after the assessment was released. The motion was served on December 11, providing the respondent plenty of time to cross examine the assessor before the hearing. Although this motion can be decided without reliance on the assessor’s conclusions and recommendations it seems important to reiterate that high conflict parenting disputes generally do meet the test of exceptional circumstances. Parents in such cases who dispute the recommendations in an assessment would be well advised to assert the procedural rights available to them before a scheduled motion rather than simply presenting the argument that consideration of the report is better left to trial.

13Further, the father’s argument against using the assessment to change a status quo overlooks the important fact that in terms of residential arrangements the mother is asking the court to rely on the assessment to increase his parenting time, not to reduce it. In terms of decision making, his concern is that the mother does not obtain an advantage before trial. That concern does not override the child’s interest in having necessary decisions made for her before trial and is better addressed from the child’s perspective by imposing parameters to limit the authority to what is actually necessary on a temporary basis.

Exchanges

14The parties agree that their exchanges of Olivia should be supervised. There is no doubt they have been extremely problematic. The presence of family members at the exchanges has not mitigated the problems. An independent supervisor who can observe and report on the exchanges in a neutral way is required.

15All exchanges of Oliva shall take place at the Muslim Family Services. If the MFS is not open due to COVID-19 the father is still entitled to his parenting time with Olivia. The parents and counsel shall forthwith use best efforts to identify and agree on an independent third party who will be available to supervise the exchanges if MFS is unavailable.

16After Olivia has been registered in daycare, she may be dropped off there in the morning by one parent and picked up there in the afternoon by the receiving parent when so doing is consistent with the terms of the parenting order. This does not impose a supervision obligation on the daycare. It does not mean that the daycare may be used as an exchange location. Rather the supervised exchange at the MFS is not required when the parenting order can be given effect to by the one parent delivering Olivia to daycare in the morning and the other parent picking her up there at the end of the day.

17The costs of the MFS shall be paid for equally by the parents until trial when a different allocation may be made by the trial judge.

Residential Arrangements

18Olivia was nine months old when her parents separated. Since then she has resided with her mother. A court order was made on consent on a temporary and without prejudice basis in November 2019. It provided for what was essentially supervised day time contact for the father. A further agreement made in February 2020 enlarged the father’s parenting time, lifted the restriction of where and who must be present during it, and only regulated the exchanges of the child. The parents had jointly retained Ms. Bourgeois to conduct a parenting assessment and expressed the intention to review the parenting plan on completion of her report, which at that time was expected in two months or so. In fact, her lengthy report was not released until November 27, 2020.

19As noted, the mother proposes to implement the residential recommendations made by the assessor which call for gradual increases to the father’s parenting time. The father seeks a more expansive and immediate change. He submits that Olivia’s exposure to parental conflict can be reduced by lengthening his time with her, which would reduce the number of transitions she has to make between parents.

20The impact of parental conflict on this child goes well beyond the exchanges, problematic as they have been. The CAS verified concerns of Olivia being exposed to ongoing post separation conflict as early as in fall of 2019. The assessor reports that Olivia has been impacted by the conflict. She could hear Olivia crying on recordings when her father had raised his voice to the point of yelling.

21The father has overheld Olivia five times, the longest for three days, and most recently on January 21, 2021. One explanation he gave to the assessor was that he thought the court order was unreasonable in not providing him overnights with Olivia and he did not want to wait any longer. Another was that it was the mother’s fault because he had offered her a choice: she could have her mother and sister leave in which case he would comply and turn Olivia over to her, or he would keep her overnight. On other occasions he has disregarded the scheduled time or location for exchanges. During one visit in May 2020 he sent the mother nine messages in total, repeatedly changing the time and place of Olivia’s return. One message referred to the mother’s “precious order” by way of expressing his disdain for it.

22The mother did twice unilaterally interrupt the father’s parenting time with Olivia, including for a lengthy period in October and November 2019 before the court order was made. The second time was after the order had been made, on January 14, 2020 and was in response to his arriving without Olivia’s winter attire. The mother says she made up this visit. Neither are sanctioned by the court but have not been repeated.

23Other evidence that Olivia has been exposed to parental conflict outside of exchanges was observed by the assessor during her home visits. She heard both parents talking about the other in negative ways in Olivia’s presence. She redirected both parents, but the father insisted on finishing his point.

24Olivia was exposed to her father’s anger and aggressive behaviour at her doctor’s office on May 4, 2020. Olivia was scheduled for a well-baby check and routine vaccine. The physician only allowed one parent to attend due to COVID-19. The father had been told not to come but did anyway. The doctor, nurse and the mother describe him as being extremely upset and agitated, raising his voice and making angry gestures. He yelled obscenities after the mother as she drove away. The mother adds that when she left, he followed her in his vehicle.

25Olivia is a very young child who has already been exposed to parental conflict and to multiple CAS and police interventions. Supervised exchanges will help but there is a larger question as to whether the father’s parenting time with her can be increased without any further exposure of Olivia to conflicts. The father did complete an anger management program for parents in May 2020, but subsequent behaviours show that more assistance may be needed.

26The child is entitled to stability and consistency in her residential arrangements. Gradual increases to the father’s parenting time will contribute to this by providing Olivia the opportunity to adjust progressively and the father the opportunity to show that he can regulate his emotions and comply with court orders as his parenting time increases.

27For these reasons Olivia shall continue to reside primarily with the applicant mother. The father’s parenting time shall be as set out in paragraph 2 above. Disagreement as to whether his parenting time should move from one step to the next will be determined by the case management judge.

Decision Making

28There is no order or agreement in place with respect to decision making authority as between the parents. The father opposes the mother’s request to be the decision maker for Olivia. Without requesting a form of joint or shared decision making authority in his Notice of Motion it is clear that this is the outcome he is looking for.

29There is plenty of evidence contra-indicative to shared decision making. The parents do not trust each other. Because of this the father videos and photographs Olivia when he is diapering and feeding her so he can prove he is doing it the way he is supposed to. He called the police when the mother told him Olivia had a fever and could not visit him on December 24. Olivia’s flu shot was delayed by two weeks in November 2020 because the father initially refused his consent.

30The father has not complied with the court order and/or temporary minutes of settlement on several occasions. In deflecting his responsibility for noncompliance, he does not show characteristics indicative of an ability to share parental decision making.

31Many of the father’s communications with the mother have been rude and aggressive, some have involved yelling and swearing. Olivia has been present for some of these. He has on occasion put Olivia in the middle of conflict, quite graphically so on May 5, 2020. The mother had come to pick up Olivia, but she says the father threatened to keep her overnight. As Olivia was running to her mother, he picked her up, stepped back and told her to wave bye-bye. The mother says he did this repeatedly. The father refers to May 5 in his affidavit by saying the mother refused to take Olivia with her, which I do not believe, but does not address this aspect of the encounter. His behaviour was not demonstrative of a parent who will make decisions solely in the child’s best interests.

32His conduct at the doctor’s office on May 4, 2020 and his defense of his conduct are also of particular concern. The father excuses his anger as justifiable because the mother made the appointment without his permission and the doctor ought not to have gone ahead without his consent. To the contrary, the father lost his temper, put his own interests before those of his child, and displayed an unreasonable, aggressive attitude that is not compatible with shared decision making.

33His proposal that the parents alternate taking Olivia to her medical appointments is not conducive to continuity of care for the child.

34In October 2020 the father stopped using Our Family Wizard to communicate with the mother, rather insisted that all communications go through their lawyers.

35Both parents accuse the other of assault. Both deny the allegations. It is a fact however that the father has been charged with “keying” the vehicle driven by the mother to an access exchange in late September 2020. On December 4 the father gave a written undertaking to the police to have no contact with the mother except as permitted by the family court for communication and to exchange the child.

36Some decisions may need to be made for Olivia between now and trial. The mother as primary residential parent is better positioned to assume this role on a temporary basis, subject to parameters intended to maintain the status quo for Oliva as much as possible. Generally, the mother has been more child focused, and she has done a good job looking after Olivia’s health care. By comparison, the father has not demonstrated the type or extent of child focus that good parental decision making requires.

37Subject to the following constraints the mother shall have sole decision making authority for Olivia, as asked, on temporary without prejudice basis:

Olivia will be raised in the Catholic faith.
The daycare or structured home daycare the mother chooses for Olivia will be French or bilingual.
Olivia’s primary physician and optometrist shall not be changed unless required by the service provider.
Olivia shall remain on the waiting list for a First Words program and shall attend the program when it becomes available for her.
The father shall be entitled to access to information pertaining to his daughter from any third party service provider. To facilitate this the mother shall keep him informed of who these individuals are and shall provide him with their contact information. If requested she shall provide her written consent for the release of information to the father.
The mother shall advise the father of health related appointments coming up for Olivia and shall notify him of what transpired at each appointment within 24 hours afterwards.

Other Terms

38The terms requested in the mother’s notice of motion with respect to use of Our Family Wizard, police enforcement, pets and COVID-19 precautions shall be included in the temporary order.

39She has also requested a restraining order to bolster the undertaking the respondent gave to the police in relation to the charge he faces for allegedly keying the car. The father’s behaviours towards her as already described in these reasons satisfies me that the order should be made as asked. The exceptions are that the respondent may attend at the MFS for the purpose of exchanging the child in accordance with the parenting order but that if he should happen to be in the same room or area as the mother while doing so he shall immediately vacate that space. Second, that he may communicate with the applicant by Our Family Wizard as provided for in the order.

Order

40The mother asked that all terms of the order be made on a temporary without prejudice basis. I so order.

Costs

41As the successful party the applicant is presumptively entitled to costs. If counsel do not agree on the amount of costs the issue will be determined by written submissions. These shall be limited to three pages each plus attached Bills of Costs and any Offers to Settle the motions. Submissions are due from the applicant by April 30 and from the respondent by May 14. If necessary, a brief reply may be delivered by May 21. These are to be sent by email to scj.assistants@ontario.ca to my attention.

Case Management

42At the conclusion of the hearing counsel were advised to conduct the case with a view to being placed on the September 2021 trial list. To assist in achieving that goal and due to the high conflict, the case should be individually managed. This endorsement should go to LAJ Audet so that she may assign a case management judge. Counsel should be ready with a litigation timetable and a TSEF for the first meeting with that judge.

Mackinnon J.

Date: April 12, 2021

COURT FILE NO.: FC-19-2037

DATE: 2021/04/12

ONTARIO

SUPERIOR COURT OF JUSTICE