Court File and Parties
Court File No.: FS-19-00011614-0000 Date: 2021-08-16 Superior Court of Justice - Ontario
Re: Karen Gordon-Bowes, Applicant And: Matthew Gordon-Bowes, Respondent
Before: Tranquilli, J.
Counsel: G. McQuaid, for the Applicant Respondent, self-represented S. Gordon – Children’s Lawyer
Heard: July 29, 2021 via Zoom
Endorsement
[1] This court is faced with yet another difficult decision concerning the interim residency of the parties’ three young children, ages 9, 7 and 3: Windsor or Oxford County? This is the third such interim motion in the past year that sought to address this issue since the breakdown of the marriage. The decision has not gotten any easier.
[2] The parties began living together in 2007, married in 2014 and finally separated in June 2020. The applicant worked in retail in between her maternity leaves and the respondent was self-employed in roofing. During their marriage, the parties raised their children in Oxford County. The two eldest children attended a nearby rural public school. After the martial breakdown, the respondent and his new partner purchased a home in Tavistock. The matrimonial home was sold and was to close at the end of August 2020. The applicant claimed she could not secure employment or find suitable housing in the Woodstock area and wanted to move to Windsor with their children to live with her parents while she re-established. In the end, the court permitted the mother to move to Windsor, Ontario with the children on an interim basis.
[3] The father now seeks an interim order requiring the children’s return to Oxford County, with or without their mother. The Children’s Lawyer supports the father’s motion based upon the views and preferences of the two eldest children that were obtained through social worker assistance. The mother opposes the motion. She submits the apparent views and preferences of two of the three children fall short of being the compelling evidence necessary to vary an interim order.
The Previous Orders
[4] The issue first came before Justice Leach in August 2020, with competing motions by the parties regarding interim parenting orders. I rely on my colleague’s detailed review and analysis of the evidence and will not repeat it herein. In summary, Justice Leach was satisfied there was urgency to address the issue as the matrimonial home was sold and the mother needed to move. The father was somehow able to purchase a new home in the area, but the mother did not have those means. She submitted she had no suitable housing and no employment prospects in the area. She wanted to return to Windsor to have the support of her extended family. Justice Leach noted the property and support issues had yet to be addressed, which might identify whether there was a viable plan for the mother to continue to reside in Oxford County in the long term. By interim interim without prejudice order of Justice Leach dated August 21, 2020, the children were to remain in the de facto primary care of their mother and she was permitted to visit and remain in Windsor, Ontario with the children on an extended but temporary basis, with parenting time to the father, pending further order of the court.
[5] Justice McArthur reviewed the issue on further evidence in November 2020. By further interim order dated December 8, 2020, McArthur J. placed the children in the custody of their mother, in Windsor, with parenting time to the father. Justice McArthur was reluctant to change the status quo on an interim basis in the absence of clear and cogent evidence that the existing arrangement is harmful to the children. Justice McArthur accepted that the applicant had few realistic options for remaining in Oxford County after the sale of the matrimonial home. She had no place to live, little financial ability to apply for a mortgage or to afford to own a residence, no employment, no childcare, and no family support. With her parents in Windsor, she had a place for her and her children to live, no financial pressures and the various supports of extended family. She was aware of her need to support herself and her family.
OCL Involvement
[6] On October 30, 2020, the court requested the involvement of the Office of the Children’s Lawyer, by way of clinical assist to address the issue of mobility. Ms. Gordon was appointed as Children’s Lawyer and Mr. Morrison Reid was assigned as social work assist. The advice of the Children’s Lawyer was not available to either Justice Leach or Justice McArthur when they previously considered the interim parenting order.
[7] Ms. Gordon and Mr. Reid met with the two older children, ages 9 and 7, on four occasions between February and June 2021. In March 2021, Ms. Gordon and Mr. Reid advised the parents the two eldest children wished to return to their former school and friends in Oxford County and to live with both parents on a shared parenting schedule. However, if their mother did not return to Oxford County from Windsor, they wished to live with their father and see their mother on weekends.
[8] Mr. Reid’s findings and opinions were presented to the court by affidavit. He reported that in his opinion, both Charlotte and Nathan have strong, clear and consistent views and preferences.
[9] It is Charlotte’s wish to live with her father in Oxford County. If her mother returns to Oxford County, then Charlotte would like to live with each parent equally. She did not like her current school in Windsor and would like to go back to her former school in the Woodstock area. Her wish is for her mother to return to the school catchment area in Oxford County so that she can attend school from both parents’ homes. If her mother chooses not to return, she wishes to live with her father. She does not like living with her maternal grandparents in Windsor.
[10] It is Nathan’s wish to return to Oxford County and live in his former school catchment area. He has no friends at his school in Windsor and this makes him sad. He wants to be with his friends at his old school. If his mother returned to Oxford County, he would like to spend equal time with both parents. If his mother does not return, then he wishes to live with his father in Oxford County and see his mother on weekends.
[11] Mr. Reid and Ms. Gordon held the disclosure meeting with the parents on March 11, 2021. Mr. Reid related in his affidavit that the mother became upset, was argumentative and interrupted the discussion several times. Mr. Reid formed the impression that the mother had listened in on his interviews of the children because she stated they had not asked the children the right questions. In Mr. Reid’s opinion, the father was appropriate throughout the meeting.
The Father’s Motion
[12] The Children’s Lawyer disclosure prompted the father to bring this motion.
[13] He seeks variation of McArthur J.’s order for the children to return to Oxford County before the start of the September 2021 school year. If the mother does not return to Oxford County from Windsor, then he seeks an interim order placing the children in his care. If the mother returns, he seeks a shared parenting schedule. He lives with a new partner and his partner’s own children from a former relationship. They intentionally purchased their new home in his children’s former school catchment area so the children could remain settled with their school and friends. He submits his children have adjusted well into the blended family during his parenting time and consider it to be their second home. He claims the children have not settled into their new lives in Windsor in the past year and are unhappy living with their grandparents. He raises issues about the mother’s ability to act in a child-focused manner, with questions about her promptness on seeking medical and dental care and a reported lack of cooperation in pursuing recommended therapy for the children. He submitted a detailed plan of care for the court’s review.
[14] The Children’s Lawyer supports the father’s motion. She noted that on the two previous motions, the court expressed concern about the lack of objective information to inform the assessment of the best interests of the children, such as through Children’s Lawyer involvement. The views of two of the three children are now known.
[15] The Children’s Lawyer submitted that the views of the two eldest children were strong, clear and consistent over the course of four interviews. She spoke with the children again just before the hearing of this motion and related that their views remained unchanged. Further, she advised that she was concerned for the level of distress and anxiety exhibited by 7-year-old Nathan about his remaining in Windsor.
[16] In the Children’s Lawyer’s opinion, the father has shown himself to be a better custodial parent than the mother. He has a child-centred plan of care. The mother has yet to present a clear plan of care. She has known of the wishes of the two older children since the disclosure meeting in March 2021 yet continues to put herself ahead of her children by insisting they remain with her in Windsor, temporarily living with her parents, where the children are clearly unhappy. She has now been living with her parents for one year with no clear plan of care in evidence. She has not consulted with the father about major decisions, such as the children’s education, when she changed the children’s school to Windsor in January 2021 without his knowledge or consent.
[17] If necessary, the Children’s Lawyer is prepared to support the return of the two older children to Oxford County to their father’s care while the youngest remains in her mother’s care. The Children’s Lawyer submitted the focus is on the well-being of the two eldest children and their wish to be living back in their accustomed community, with their friends and their home school.
[18] Both the father and Children’s Lawyer suggested the mother obtained the previous interim orders through misrepresentation about her employment status in the Woodstock area. In their view, the court was under the mistaken impression she was unemployed. Later productions showed she had temporary factory work in Woodstock in the summer 2020 and then conveniently ended her employment following Justice Leach’s order.
[19] The mother submits the professed views and preferences of two young children are not an appropriate basis on which to vary an interim order. Their views and preferences are just one element of many that the court must weigh in determining the best interests of the children. The Children’s Lawyer has not presented a more comprehensive s. 112 clinical investigation report but merely the views and preferences of two of the three children. The mother suggests the father has manipulated the two children’s emotions by painting an unrealistic and rosy picture of resuming their old lives in Oxford County. The Children’s Lawyer has over-stepped her role in this motion. There is reason to believe the Children’s Lawyer has allowed herself to become improperly aligned with the father’s position. The Children’s Lawyer has impugned the mother’s conduct as not being child-focused; however, the mother’s relocation to Windsor, Ontario was with the court’s permission. Which party may be improperly involving the children in these issues remains to be determined. The question about mother’s employment status at the time of the first motion was already litigated before Justice McArthur and there has been no motion to set aside his interim order based on misrepresentation.
Analysis
[20] The issue facing the court on this motion is whether there are exceptional or compelling circumstances that warrant a variation of the interim order that places the children in their mother’s primary care in Windsor.
[21] Generally, the well-settled rule is that the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s interests. An assessor’s recommendation ought not to be acted upon without a full trial, unless there are exceptional circumstances where immediate action is warranted by the assessor’s report: Grant v. Turgeon, 2000 CanLII 22565 (ONSC) at paras. 15-17.
[22] The father brought this motion on the strength of the Children’s Lawyer’s disclosure, and with the support of the Children’s Lawyer. I must therefore decide whether that disclosure of two of the three children’s views and preferences falls into the category of exceptional circumstances where immediate action is mandated.
[23] As with the two previous motions, this is an exceedingly difficult and imperfect exercise, based again on competing affidavits that are untested by cross-examination. My colleagues in their earlier decisions each expressed a desire for the assistance of objective evidence, such as from the Children’s Lawyer, to assist in the exercise of addressing a parenting order in the children’s best interests. Unfortunately, the evidence from the Children’s Lawyer falls short of that mark on this interim motion.
[24] The Children’s Lawyer did not conduct a clinical investigation and produce a report with recommendations. Their involvement has consisted of a series of interviews of two of the three children with social worker assistance about their views and preferences and an observation of the children while in the care of each parent. While the Children’s Lawyer has produced relevant evidence from two of the children, the conclusion that the two eldest children wish to return to Oxford is untested and is also untethered to any of the other factors a court must also consider and weigh when making a parenting order in the best interests of the child. The courts have cautioned against acting on an assessment report on an interim basis. In my view, this caution is even more pronounced where the court is asked to act upon narrower evidence of children’s expressed views and preferences.
[25] I understand the Children’s Lawyer can and should advocate for the children’s views and preferences on an appointment under s. 89 of the Courts of Justice Act. It is a complicated mandate and can be a thankless task. However, I question whether it is appropriate on an appointment of this nature to form opinions and advocate as to which parent is more “child-focused” or who has the “better” plan of care. The relevance, basis, and propriety of the social worker’s opinion of the parents’ conduct during the disclosure meeting in light of the scope of his role is questionable and untested.
[26] I do not doubt that the Children’s Lawyer has acted in good faith. However, the evidence raises questions about the extent of its alignment with the father’s position. There is evidence that the father sought the Children’s Lawyer’s input on his motion submissions and that he felt they were on his “side”. There was also evidence on the motion from the respondent’s social media postings, where he apparently shared his understanding on the social worker’s alleged “success rate” in having his recommendations followed by the court. I accept that the Children’s Lawyer may support the position of one parent over another, as informed by the views and preferences of the child. However, in this instance, the court is being asked to vary an interim order based upon the Children’s Lawyer’s evidence of two of the children’s views and preferences, its pronounced opinion about the parents’ conduct and plans of care and its outright criticism of the mother. This is all in the context of questions about the arm-length dealings between the OCL and the parents. The bottom line is that this information about the two children’s views and preferences and the opinion on the parents’ positions and plans of care remain to be tested.
[27] I am also concerned that the requested interim variation to the parenting order could see the two older children being separated from the youngest if the mother is unable to return to Oxford County. The alternative to also place the youngest in her father’s primary care is no more attractive, where the variation is entirely premised on the views and preferences of her older siblings. The Children’s Lawyer was apparently untroubled by these options given her focus on the views and preferences of the two eldest children. My colleagues have previously held that the evidence established the children were in the applicant’s de facto primary care. This is particularly true for the youngest child. I am not prepared to revisit that assessment or to consider options such as separating the siblings on this evidentiary record.
[28] Finally, there was no evidence on this motion to demonstrate how it would be viable for the mother to return and reside in Oxford County. It is evident from Justice Leach’s reasons one year ago that he had contemplated the possibility of the mother remaining in Oxford County if a viable plan emerged once interim property and spousal and child support issues had been resolved. A concrete option as such did not appear to emerge by the time Justice McArthur reviewed the situation on the second motion in November 2020. This motion now appears to expect me to consider ordering the children’s return to Oxford County without considering the issue of whether it is viable for the mother to return to the area. I am not prepared to entertain such a zero-sum analysis that would lead to a significant change on an interim basis. I am also not in a position to go behind the two previous interim orders to review the evidence, and so cannot consider whether the mother misrepresented her employment status in order to gain a tactical advantage. It may be an issue that she will be called upon to explain at trial.
[29] I therefore dismiss the father’s motion. Justice McArthur’s interim order shall continue pending further order of this court or agreement of the parties.
Counselling for the Children
[30] I am nevertheless deeply concerned about the evidence from the Children’s Lawyer about the reported unhappiness of Charlotte and Nathan at living in Windsor and an apparent lack of coordination between the parents about important decisions such as education and health care.
[31] The children have experienced much loss and transition in the past year. The mother properly conceded that there should be cooperation about counselling for Charlotte. The information on the motion about Nathan’s distress is also unsettling and he should also have access to counselling if recommended. An order will go requiring the cooperation of the parents to ensure that this counselling happens.
Pending Assignment Court
[32] My concerns about the children’s well-being are compounded by the now significant backlog in trial proceedings due to the impact of the pandemic. This matter is set for assignment court on September 9, 2021. I have recommended that this proceeding be given priority; however, this recommendation must be managed with the demands of the many other cases in the region awaiting judicial resolution. The parties are expected to be prepared to address scheduling issues at assignment court on September 9, 2021, including the anticipated length of trial and remaining steps to be completed, so that the court can assess what can be done to reasonably accommodate a trial in the foreseeable future.
OCL – s. 112 Investigation
[33] Following oral argument, I wrote to the parties to request their written submissions as to their position on the court requesting the Office of the Children’s Lawyer to consider an investigation under s. 112 of the Courts of Justice Act.
[34] The applicant was in agreement to request a s. 112 report on condition that the appointment would lead to a fresh inquiry by a different clinician. She asks for a different social worker given her concerns about a lack of objectivity raised in the respondent’s social media postings.
[35] The respondent also consents to requesting the continued involvement of the OCL for a s. 112 report. However, he is of the opinion that the Children’s Lawyer and assisting clinician conducted a thorough investigation and that the children formed a “bond of trust” with them. He submits it would be an emotional hardship for the children to start anew with another clinician. He claims that the applicant is seeking the involvement of a different clinician in order to discredit the Children’s Lawyer’s disclosure on the children’s views and preferences.
[36] The Children’s Lawyer advised that if the Office of the Children’s Lawyer deems it appropriate to provide such a report, then it would no longer provide legal representation for the children pursuant to s. 89 of the Courts of Justice Act. She submitted that it was a “rare occasion” where the Office of the Children’s Lawyer has previously converted services from legal representation to a s. 112 report, where “specific factors” weigh in favour of that decision. I do not have the benefit of her advice as to what those “specific factors” may be.
[37] In my view there are clearly identified factors in this high conflict dispute which would benefit from a s. 112 assessment report. As noted in C.R., Re, 2004 CanLII 34368 at para. 37, the practice of social work assist to provide evidence of a child’s views and preferences under s. 89 is less than an investigation under s. 112. This is a highly complicated situation where the location of the children and the terms of the parenting orders must be addressed in the context of intractable conflict between the parents and allegations by both parties of manipulation of their children. This is a situation where the circumstances of both parties and the needs of all of the children need to be better understood. Final determination of the appropriate parenting order requires consideration of several issues beyond the views and preferences of two of the three children. The viability of a joint parenting order, as pursued by the respondent, must be considered. There are the needs of the youngest child to understand. The court may apparently be asked to contemplate whether it is in the best interests of the children for the siblings to be separated. An order will therefore go requesting OCL involvement by way of a s. 112 assessment and report.
[38] I am persuaded it is reasonable to request that the s. 112 assessment be conducted by a different clinician, given the court’s questions about the propriety of the worker’s opinions on the parents. I do not make any finding that there has been improper alignment between the worker or OCL counsel and the father; however, the applicant’s concerns are not unreasonable given the evidence before the court on this motion and the court’s own question about the propriety and fairness of some of the comments made about the parents’ conduct. These questions all unfortunately undermine the potential usefulness of the evidence to a trial judge. I would expect that the current social worker’s findings from his initial review and his interviews of the two children would nevertheless still form part of any subsequent investigation for the new clinician’s consideration.
Concluding Comments
[39] I trust that each parent will carefully review these reasons. They must understand that there is no “winner” or “loser” in this decision. The court’s primary concern is what parenting orders are in the best interests of the children. Whether the children are to reside in Oxford County or Windsor and on what parenting arrangement remains to be determined following a trial or further order of the court.
Orders
[40] For these reasons, the following orders shall issue:
The respondent’s motion to vary the interim order of McArthur J. dated December 8, 2020, is dismissed.
The applicant and respondent shall cooperate in facilitating, scheduling and providing any necessary consent and direction for counselling for the children, Charlotte and Nathan.
The court requests the involvement of the Office of the Children’s Lawyer for a clinical investigation pursuant to s. 112 of the Courts of Justice Act. The court requests that consideration be given to the clinical investigation being conducted by a different clinician than who was previously involved pursuant to the order of Heeney J. dated October 30, 2020.
The parties shall ensure that a copy of these reasons is submitted to the Office of the Children’s Lawyer in order to facilitate its review of this court’s order requesting its involvement under s.112 of the Courts of Justice Act.
[41] I encourage the parties to resolve the issue of costs. If costs are not resolved, the applicant shall serve and file her cost submissions by August 30, 2021 and the respondent shall serve and file his cost submissions by September 8, 2021. Submissions by the Children’s Lawyer, if any, shall be made by September 13, 2021. The submissions shall be no more than 3 pages in length, excluding a bill of costs, and shall be double-spaced, standard formatting. There is no reply without leave.
[42] Costs will be deemed settled on September 14, 2021 if no submissions are received in accordance with this schedule.
Justice K. Tranquilli
Date: August 16, 2021