Court File and Parties

COURT FILE NO.: 2320/15 DATE: 2021-05-10 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeffrey Scott Thomson, Applicant AND: Anna-Marie Sutherland, Respondent

BEFORE: Kurz J.

COUNSEL: Jeffrey Scott Thomson, Self Represented Tharmini Kuhathasan, for the Respondent

HEARD: May 10, 2021

ENDORSEMENT

Introduction

[1] On May 5, 2021, Coats J. dealt with the urgent motion request of the Applicant father. He moves for primary parenting of the child, James Christopher Thomson, born January 12, 2000 (“James”), the return of James to his care and to limit the Respondent mother’s parenting time with James. He also seeks relief regarding child support. The order he seeks would represent an interim variation of the order of Coats J. of August 26, 2016, described below. The father has yet to serve a form 15 motion to change on the mother. He shall do so within the next 14 days.

[2] Coats J. found that the issues raised in this motion are urgent and placed this matter before the court for today. The urgency arises from two factors. First, the mother’s refusal to return James to the father’s care since April 25, 2021. That refusal stands in the face of the order of Coats J. of August 26, 2016. Second, the mother now stands charged with assaulting the father with a weapon as a result of an altercation that took place on the April 25, 2021 parenting exchange.

[3] The mother seeks an adjournment of the motion, claiming inadequate service and the recent retainer of new counsel. The father does not strongly oppose the adjournment request. However he seeks the immediate return of James to his care and an arrangement whereby James primarily resides with him. He wishes make-up time and an arrangement whereby James is with him either three weeks out of four or two out of three. The mother agrees to two weeks of make-up time and then a week-about arrangement.

[4] For the reasons that follow, I order that James be immediately returned to the father, on terms agreed upon, below. I grant the father 13 days of makeup time. Thereafter, James shall in the care of his parents on a two-weeks with the father and one week with the mother arrangement until this motion is heard in full. As it is a term of an adjournment, the arrangement set out in this order is interim-interim and not intended to establish a new status quo.

Background

[5] James is one of four children of the parties. Their oldest offspring, Cloe is 27 years old and resides independently in California. Jeffery is 23, while Seth is 17 ½ years old. Both Jeffery and Seth reside with the Applicant father. Jeffery is no longer a child of the marriage.

[6] James is on the autism spectrum. The father describes him as “severely autistic”. James clearly has a number of special needs. He is in a special education programme at the Thomas A. Blakelock High School in Oakville. Most schools in Halton are closed, but not James’ programme. An advisory of the Halton District School Board posted on the internet on April 19, 2021 explains that state of affairs. It states:

During the remote learning period, some staff are working in schools to support select students with special education needs who require in-person learning, as they are unable to learn remotely. To ensure individuals are not identified, we will not report COVID cases where there are less than 10 staff or students in the school.

[7] The parties appear to agree about James’ lack of legal capacity, despite his adulthood. However, they are opposing each other in capacity and guardianship proceedings in this court. The issue in those proceedings is which of the two parents should be James’ guardian for both property and personal care. The matter is in mediation, with counsel, Ms. Tucker, appointed to represent James in that proceeding. She is not presently counsel in this proceeding. Her letter, advocating a return to status quo has been read to the court. It is not clear what she knows about the circumstances presently before the court or how she came to write the letter. She appears to have heard only from the mother’s guardianship lawyer.

[8] While the parties spoke of the appointment of OCL counsel, I do not believe that that agency will appoint counsel for an adult, even one with James’ special needs. It is open to them to approach either a lawyer or social worker on the OCL panel to represent James or offer a Voice of the Child report (I do not know enough about him to determine whether that process would be of assistance to the court or James). However, if anyone represents him in this proceeding, that party should have a background in family law. Experience in capacity law would be of added value.

[9] From what I can tell, this has been a very high conflict proceeding. There is neither love nor trust lost between the parties. Their children have been dragged into the conflict. Jeffery refuses to have contact with his mother while Seth chose to come into the father’s care from that of the mother late last year. The video cited below, shows the mother disparaging the father and his wife, Sophia, in front of James and his neighbourhood.

[10] The last parenting order in this matter is the order of Coats J. of August 26, 2016. Coats J. granted the parties joint custody of James and the father about 60% of the parenting time with the child. However, the summer is equally divided on a week-about basis.

Events of April 25, 2021

[11] The impetus to this urgent motion was the altercation between the parties at a parenting changeover of April 25, 2021 and its aftermath. That day, the mother went to pick up James from the father’s home. A confrontation ensued, which greatly upset James and later resulted in the arrest of the mother on a charge of assault with a weapon (the father’s front door). As set out below, I am critical of the mother’s conduct that day and her decision to withhold James until this court appearance.

[12] The father was to return James to his mother’s care at her home the day before, on April 24, 2021. However he failed to do so because, he says, he was ill from his COVID vaccine, received the day earlier. On April 25, 2021, the mother attended at the father’s home to pick up James. When she arrived at his home, she was visibly and volubly angry at him. Her words and actions were recorded by the father’s home security camera. Sophia also recorded a brief portion of the events on her phone’s camera. At all times, the mother was aware that she was being recorded.

[13] I have reviewed the security camera footage a number of times. In deciding on the terms of the adjournment, I place great weight on that footage, which, in the absence of other evidence, confirms much of the father’s narrative of the events of the day. It also highlights the concerns that he raises about her behaviour generally, but most specifically that day.

[14] From the video, the mother appears to be angry and agitated from the moment that she arrives at the father’s home. Through her counsel, the mother asserts that the video fails to capture all that occurred before its 10:14 running time. Even if the recording starts after what the mother’s counsel asserts to be provocative comments by the father, that does not excuse the conduct caught on the video. Further, as I note below, the video shows over ten minutes of the mother’s loud and angry vituperation. At no time are her insults echoed by the father or Sophia; although they loudly and fruitlessly demand that she wait for James away from their doorstep.

[15] The video begins with the mother arriving at the father’s home, getting out of her vehicle and shouting as she walked up the driveway. She both proclaimed that the father is going to jail and acknowledged that she is being recorded. The video soon cut to the mother standing just outside the father’s front door. A small portion of the recording may be missing there.

[16] The mother continued by calling the father a “lying rat bastard” and demanding her son. She then expressed what I take to be a wish for the father to be raped in jail, saying “I hope you drop the soap so much in jail cause that’s where you are going.” This appears to be a comment about the punishment that she envisages for the father, arising from purported financial malfeasance related to James, dating back to 2016.

[17] At this point and throughout the video, the father and his wife, Sophia, attempted to insist that the mother move off of their property. They stated that James would be coming. The mother refused to leave the property until James was released to her. During the course of their verbal confrontation, the mother pushed herself into the doorway, screaming “give me my son!”.

[18] The father says that during the course of this confrontation, the mother pushed the front door towards him. He and Sophia were on the other side of the door. Sophia yelled out “Oh my God!”. The father says that the mother pushed the door into him, hitting and hurting him. That is the reason for the assault with a weapon charge. The video shows the mother pushing towards the door but not its contact with the father on the other side of the threshold. That was not within camera range.

[19] Following this, the mother turned towards the camera recording her and addressing the father, stating that she had had enough of his “fucking lies”. She added “I don’t give a fuck anymore”. She soon addressed the father’s neighbours at large, loudly proclaiming that he was going to jail for defrauding her son of hundreds of thousands of dollars. At a later point, she returned to her public oration, screaming at the neighbours that Sophia would also go to jail.

[20] During the ten-plus-minute exchange, the mother continued to insult the father, mostly in what appears to have been James’ presence. She called the father an “underdeveloped troll of a man”. She verbally sparred with Sophia, referring to her purported dishonesty about reselling vitamins to the mother.

[21] At one point, the mother told James that she is “pissed” with his father, “more pissed” than she had ever been. She stated that his father will go to jail. She called him a narcissist. She told James that she is mad at daddy for not driving him. James is not visible in the video at this point but he appears to be moaning in the background as his mother berates his father.

[22] After James was delivered to her, the mother grabbed his arm and turned around, stating “you are not getting him back”. As he was led away by his mother, James held a finger in each ear, in the gesture of one attempting to avoid hearing what is being said. Even though James was now in her care, the mother then turned around to yell at the father and Sophia, leading James to cry out. She then led James to her vehicle, where he said something in a moaning, upset tone of voice with his fingers still in his ears. He was clearly upset. When they reach her vehicle, the mother proclaimed to the father and Sophia “you two are going down”. After she placed James in the vehicle she said to the father and Sophia “say goodbye to your son. You two are going to jail”. Even as James was getting into her vehicle, she turned around to further engage with the father. He had remained at his door.

[23] While all involved in the video raised their voice, neither the father nor Sophia insulted the mother. The only manner in which they rose to her bait was to raise their voices in frequently insisting that she leave their property, a demand she consistently refused. They never refused to produce James.

Today’s Appearance

[24] The mother has just retained counsel, Ms. Kuhathasan, who has not seen the father’s materials and had not seen the video before today. She requested an adjournment to review the father’s materials (which his affidavit of service states were served on the mother, a claim she denies). I indicated that I was willing to grant an adjournment but that the only issue today is the terms of the adjournment.

Analysis

[25] I do not have any responding materials from the mother. Accordingly, I must be circumspect in relying exclusively on the father’s materials. The part of those materials on which I place the greatest weight is what appears to be the most objective evidence available to me today: the video of the April 25, 2021 changeover. It is both compelling and disturbing.

[26] On April 25, 2021 the mother came to the father’s home, loaded for bear, as it were. From the moment that she stepped out of her vehicle, the mother began screaming and insulting the father. She seemed intent on embarrassing him to his neighbours. That was just the start of her display of an extraordinary lack of self-control or self-awareness.

[27] Of even greater concern than the mother’s outraged and abusive outbursts was her inability to control either her emotions or her comments in the presence of James. In fact, she attempted to pull the young man into the morass of her conflict with the father and his wife. She seemed oblivious to the pain that her conduct was causing to James or the long-term harm that his exposure to her vitriol could cause him.

[28] I recognize that the incident was just one of over a decade’s worth of conflictual events between the parties. I know that, as the expression has it, it often takes two to tango. But everyone knew that the camera was on. The father and Sophia were clearly upset but they were able to control themselves. In fact, they acted with admirable restraint in the face of the mother’s provocations.

[29] The mother had plenty of time to decide upon how she would behave when she arrived to pick up James. She could have de-escalated the situation before she arrived. Instead she inflamed it, most egregiously in front of James and his whole neighbourhood. If she had a bone to pick with the father for James’ non-delivery to her home, she could have dealt with it calmly and privately. She could have negotiated a make up day. Her decision to forgo that path, in favour of angry and public confrontation was the wrong one, by far. Rather than reflecting badly on the father and Sophia, it spoke to a want of judgment and a failure to prioritize the interests of her son.

[30] Based only on the limited materials before me, I cannot speak to whether the mother’s conduct meets the legal definition of assault, much less assault with a weapon. Nor can I speak to over a decade of conflict between the parties based on a ten-plus-minute video. But I can say that the mother’s behaviour at the April 25, 2021 parenting changeover was out of control at a time that it should very much have been in control. That behaviour did not improve, even when the mother took James into her care. In fact, James seemed very distressed by her continuous verbal barrage towards his father and stepmother. Such conduct can be extremely harmful to a vulnerable young man, such as James. That the mother was unable to see all of that raises red flags with flares regarding her parenting of the young man.

[31] That the mother then felt entitled to unilaterally decide to keep James from his father, after loudly announcing in his presence she would never return him, raises even more concerns. It can be assumed that the father knew that the mother’s comments could not be taken literally, in that he knew well enough to quickly come to court. But there is no guarantee that James knew that. He may only have been aware of the emotion of the time and the conflict between his parents. That was enough to distress him.

[32] This kind of behaviour cannot be condoned, let alone rewarded. While James was clearly distressed during the confrontation, it is unclear what long-term effect this event had on James. It is to be recalled that James spent the next fifteen days in the care of his mother, potentially being exposed to more recriminations aimed at his father and stepmother.

[33] In determining which arrangements are in James’ best interests until the motion is heard in full, I have to balance two factors. On the one hand, as set out above, I am concerned with the mother’s difficulty in appropriately channelling her level of anger at the father and its potential deleterious effect on James. On the other hand though, I am aware that he has been regularly seeing both parents. I have no doubt that he loves the mother. I am concerned that keeping him away from his mother for too long a period would also potentially harm him. Further, the father was willing to agree with one-week periods with the mother, albeit separated by two to three weeks in his care.

[34] During the argument of the adjournment, I spoke of a return to the status quo. But that entails too many changeovers and chances of conflict in James’ presence. While the mother proposed a week-about arrangement after a make-up period, I do not believe that such an arrangement is best for James.

[35] I find that, at least until the full case is heard, he should be in the care of his father and stepmother, and share a home with his siblings for more time than he is with his mother and her partner. From what I can tell at this time, that arrangement would leave James less likely to be exposed to the kind of conduct and attitudes that were on display on April 25, 2021, than if he were placed in a full shared parenting arrangement.

Parenting Terms During this Adjournment

[36] I have concluded that a rotating schedule which sees James living with his father for two weeks and then his mother for one allows James contact with both parents. It minimizes changeovers and lessens (but unfortunately fails to eliminate) the risk of being subjected to the mother’s manifest animosity to the father and his wife.

[37] What is clear is that the mother’s conduct has created a situation of urgency. It is very much in James’ best interests to be immediately returned to the care of his father. Until the full hearing of the motion, it is vitally important that James’ circumstances be stabilized and that a repeat of the events of April 25, 2021 be avoided.

[38] To their credit, once I made that view clear to the parties, they made arrangements for James’ return as follows. James will be returned to the father today at 7:30 p.m. For tonight only, Mr. Thomson’s changeover third party, Leah Garniss, will attend at Ms. Sutherland’s home, 10325 Second Line, Nassagaweye, Campbellville, Ontario, for the changeover. Both Ms. Garniss and Ms. Sutherland will cooperate with the changeover. I orally advised the parties of those terms.

[39] While in his care, the father may decide whether to allow James to return to in-person learning at school. I understand that the Province either is in the process of opening up vaccinations to adults with autism and may have already done so in Oakville. When James returns to her care, as set out below, the mother may choose whether to return him to in class learning or do so from her home. It is late in the school year and that divergent arrangement appears to have been in place for some time.

[40] Other than in regard to the schooling issues, until the return of this matter, the father will consult with the mother regarding any major issues that may arise. But he will have the final say in the event of a disagreement.

[41] James shall be in the father’s exclusive care from May 10 until May 23, 2021. He shall thereafter be in the care of his mother for seven days. The pattern thereafter, until the return of this motion, shall be 14 days with the father and seven with the mother, with all changeovers on Sundays. Unless the parties agree otherwise, all changeovers shall take place Sunday at 6 p.m. at the Tim Hortons restaurant at 7502 Trafalgar Rd., south of Hwy 401.

[42] Neither party shall be present at any parenting changeovers other than as set out above. Each will provide an agreed upon third party to perform the changeover. That person shall not be their spouse or partner. Leah Garniss may perform the changeovers for the father. The mother will advise the father, through counsel, whom she proposes for the changeovers. He will respond in a timely fashion.

[43] Despite the father’s request, I will not order police enforcement of the parenting term. However I will remain seized of this matter until it returns for argument of the motion (of which I am not seized). If there is a breach of the terms of this order, including with regard to parenting changeover, the matter may be brought to my attention through the trial office.

[44] If it is still available, the father shall preserve the full, unedited front porch video (and audio) of the events in the front of his home on April 25, 2021 from noon till 1:00 p.m. In that event, he shall produce that full, unedited porch video and audio recording to the mother’s counsel within seven days. If he is unable to so, he shall explain in writing why he is unable to do so.

[45] The mother shall say nothing to disparage the father or Sophia while James is in her care nor shall she allow her partner to do so. The father and his wife shall do the same regarding the mother and her partner.

[46] This motion is adjourned to July 27, 2021 at 10:00 a.m. for two hours.

[47] Costs of this attendance are reserved to the hearing of the motion.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Date: May 10, 2021