A.B. v. I.S.G., 2021 ONSC 7001

COURT FILE NO.: 3817/14

DATE: 2021-10-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.B.

Applicant

– and –

I.S.G.

Respondent

S. Heeley, Counsel, for the Applicant

J. Welsh, Counsel, for the Respondent

HEARD: October 20, 2021

JUDGMENT

The honourable Mr. Justice A. Pazaratz

Background

1The file number on this motion is 3817/14. The “14” stands for 2014 which is the year the father commenced the first application.

2The parties ended up getting a comprehensive final order of Justice Lafrenière dated December 23, 2014.

3In December 2014 their two children, daughter S.G.B. and son B.G.B. were six and four.

4But these parents have been fighting about these children almost continuously since 2014. I have been so extensively involved that eventually I seized myself of contested matters, to promote consistency and efficiency.

5Today the parties argued yet another motion. Now S.G.B. is weeks away from being 13 and B.G.B. just turned 11.

6The good news: By both parents’ accounts B.G.B. is doing well. He is regularly seeing both parents.

7The bad news: S.G.B. is not doing well at all.

a. She hasn’t really had any contact with the father since about February of 2021.

b. She has developed serious anxiety problems.

c. In May 2021 she was diagnosed with Obsessive Compulsive Disorder (OCD) in the “severe range.”

d. She was seeing a psychiatrist who referred her to the Ron Joyce Center for Cognitive Behavioural Therapy which is being arranged.

e. She is also seeing another therapist biweekly by Zoom.

f. For a while she wasn’t attending school. Now she’s going more frequently, but with some problems.

g. Indeed, for a while she wasn’t even leaving her room. Now she goes out. And the father wonders: if she can go out to see the mother’s family, why can’t she go out to see him?

h. Both parties agree her OCD appears to be getting better. The father says she has progressed sufficiently that there’s no emotional or psychological reason why his time and involvement with the child shouldn’t be resumed immediately. He says the mother is exaggerating or exploiting the child’s mental health issues as an excuse to reduce or eliminate his involvement as a parent. The mother denies this and insists she has actively encouraged her daughter to see the father. She provided a letter from Hamilton CAS which supports her position, and she notes that there is no issue about B.G.B. regularly spending time with the father.

The Motion

8Through my many previous endorsements I have consistently encouraged these parties to stop focussing on their animosity toward one another, and start thinking about how much damage they are doing to their children by constantly waging high conflict warfare in family court.

a. At times they have listened.

b. At times they have seemingly pretended to listen.

c. For a while they were working with therapist, but the mother is no longer prepared to work with that therapist.

d. The father brought this motion seeking, among other things, an order requiring that the parties retain the services of another reconciliation therapist.

e. Today, at the outset of the motion the parties presented partial minutes of settlement agreeing to that person’s involvement.

f. They argue about whether this part of the motion was necessary. Each says they have been promoting therapeutic solutions, and that the other party has been resistant. It is inconceivable that parents who really wanted to address a child’s mental health issues would get bogged down in such inefficient communication that they can’t achieve common goal without the assistance of lawyers and a judge.

g. So, now, the reconciliation counselling will start, to try to repair whatever has caused S.G.B. to absolutely refuse to have any contact with the father (even by Zoom).

9But the father doesn’t want to wait for professional input on this topic.

a. He seeks an order requiring that S.G.B. be placed in his care immediately for two weeks, with any time by the mother to be in his discretion.

b. He asks that thereafter both children would share time equally between the parents on a weekabout schedule.

c. All of this would be a significant change from the most recent order – a temporary variation – dated February 22, 2019. That consent order provided that the parents would share time with the children equally: In the mother’s care from Saturday at 7 p.m. until Wednesday, and with the father from Wednesday until Saturday at 7 p.m.

10The father also requests that the mother’s partner C.O. not attend during any of the father’s time with the children; during timesharing exchanges; and that he not be present when the father attends professional appointments for the children.

a. The father says the children are acutely aware of the parental conflict, and that C.O.’s presence is a distraction and unnecessary complication in their lives.

b. He cites an example where the parties and S.G.B. were in a medical waiting room. S.G.B. ended up sitting with C.O. and rejected the father.

c. He alleges that S.G.B. is aligning herself with the mother as a result of alienating behaviours by the mother, and that when C.O. is present it creates continuing pressure on the child to show loyalty to the mother (through her partner).

d. He says B.G.B. also experiences needless heightened stress when C.O. attends B.G.B.’s sporting events during the father’s designated times.

11The mother asks that these remaining aspects of the father’s motion be dismissed.

a. She says forcing S.G.B. to go live with the father for even two weeks would be highly inappropriate and insensitive to her mental health issues. She says the child is struggling; her OCD is slowly improving; and we should allow the reconciliation therapist to do her job, rather than impose drastic terms before we know what the real problem is.

b. She says there is no basis for changing the existing schedule as far as B.G.B. is concerned. She agrees that the objective should be to get back to the existing court ordered schedule for both children, rather than suddenly imposing completely new terms based on incomplete information.

c. She also opposes any restriction with respect to C.O. being present. She says the children have a good relationship with him and he has done nothing wrong. To the contrary, B.G.B. likes C.O. attending sporting events, and S.G.B. likes him attending medical appointments.

The Law

12A party seeking to change a parenting order must establish, as a threshold requirement, that there has been a material change in circumstances since that last order was granted.

13That fundamental principle applies with respect to a variation of a final order.

14A request for a temporary variation of a final parenting order requires the court to conduct an even more stringent analysis., as described by this court in F.K. v. A.K. 2020 ONSC 3726 (SCJ).

15And a request for a temporary variation of a temporary order requires even more caution by the court.

a. The majority of cases conclude that a material change in circumstances must be established as a prerequisite to changing either a temporary or final order. Miranda v. Miranda, 2013 ONSC 4707 (SCJ); Radojevic v. Radojevic, 2020 ONSC 5868 (SCJ); Sullivan v. Boucher, 2020 ONSC 8062 (SCJ). Since interim orders are intended to provide a reasonably acceptable solution on an expeditious basis for a problem that will get full airing at trial, requests to change interim orders should be rare. Lusted v. Bogobowicz 2021 ONSC 269 (SCJ); Thom v. Thom, [2014] O.J. No. 2115, 2014 CarswellOnt 5708. This approach is consistent with the language of the legislation.

b. Other cases have suggested that a temporary order may be subject to change if there is a “compelling reason.” But even with this less stringent test, those cases agree that courts must proceed cautiously before changing even a temporary parenting order. Calabrese v. Calabrese, 2016 ONSC 3077(SCJ); M.D. v N.J., 2016 ONSC 6058 (SCJ).

c. Both approaches emphasize that the overriding principle is always the best interests of the child, and the status quo should not be lightly disturbed on an interim basis. Chyher v. Al Jaboury 2021 ONSC 4358(SCJ).

Analysis

16In this case, the father alleges that the mother’s refusal to comply with the existing temporary order constitutes a material change in circumstances which justifies immediate affirmative intervention for the sake of the child. He also says switching to weekabout for both children would reduce the number of exchanges, thereby reducing opportunities for conflict.

17I am not prepared to accept the father’s submissions at this time.

a. I have no idea what’s really going on right now, but I have a pretty good idea what’s been going on for about the past five or six years.

b. These parents – both of them, to varying degrees and at varying times – have been waging incessant and ugly warfare, completely oblivious to the emotional impact it has been having on their children.

c. Now their daughter is an emotional mess, and they’re still trying to blame each other, rather than look in the mirror and face the reality of what they have created.

d. It’s encouraging that today – once again – the parties are consenting to therapeutic assistance.

e. I am not prepared to change anything for either child without much better independent information as to what the children are experiencing and how we can best help them.

f. And I’m certainly not prepared to experiment with S.G.B. by suddenly forcing the almost 13 year-old to spend two solid weeks with a father she has refused to see for almost eight months.

g. I am not prepared to change – or force – any schedule on the basis of inadequate information. Any change would be premature given the fact that the parties are about to embark on reconciliation therapy which is intended to address these same issues – but in a much more sensitive and comprehensive manner.

Restrictions Regarding the Mother's Partner

18I agree with the father however that given all of the pressure and conflict which both children have experienced, we should take whatever simple steps may be readily available to reduce situations which create any amount of anxiety or exposure to conflict (or even the potential for conflict).

19I agree with the father that there should be restrictions on the presence of the mother’s partner during the father’s time or involvement with the children.

a. There is no specific allegation of aggression or inappropriate behaviour by C.O..

b. But it’s a question of sensitivity and common sense.

c. Historically the father and mother have made it overwhelmingly clear to both children that they don’t like one another. And there has been a constant tug-of-war in terms of the children’s allegiance to each parent.

d. As often happens in these high conflict parenting disputes, the children have been significantly impacted. They have a heightened sense of awareness of the tension and animosity between the parents. It would be surprising if S.G.B.’s extreme emotional difficulties are completely unrelated to the chaotic, disrespectful and insensitive approach which the mother and father have taken to post-separation parenting.

e. If one of the current problems is that S.G.B. has inexplicably aligned herself completely with the mother – then there is a very real danger that she will also feel pressure to align herself with the mother’s partner.

f. The years-long “competition” between the parents for the children’s affection and control has been devastating for both of them. C.O.’s continuing presence during the father’s times is a needless distraction and complication, at a time when we need to simplify life for both of these children.

g. In other, more pleasant, more peaceful situations where parents re-partner, there would be no suggestion that new partners should be excluded.

h. But this is not a pleasant, peaceful or normal family situation.

i. I accept the mother’s explanation that she is encouraging S.G.B. to improve her relationship with the father.

j. I accept the father’s explanation that C.O.’s mere presence on sensitive occasions (such as in a doctor’s waiting room) creates a needless distraction and complication for the children.

k. These children – and S.G.B. in particular – should not be exposed to situations in which their struggle between loyalty to the father and the mother (through her new partner) creates an emotional bind.

20Finally, there appears to be ongoing conflict between the parents about selecting professionals and interacting with professionals in the children’s lives. Each parent accuses the other of being uncooperative, and the result of this ineffective communication is that the children suffer.

21I stood the parties down while preparing this endorsement. I then received word that the parties had entered into minutes of settlement with respect to a very minor component of the father’s timesharing with S.G.B.. The minutes stated:

1. The Applicant shall have virtual parenting time with the child, S.G.B., (date of birth omitted), every Monday at 7:30 p.m. The Applicant shall send the Respondent a zoom link for the visit. The Respondent will open the zoom link and provide the electronic device to S.G.B.. Thereafter, the Respondent will leave the room.

22If the parties have agreed to this, that’s fine. But it doesn’t settle this motion and it doesn’t really address the real problem.

a. These parents have to stop fighting.

b. They have to change their messaging to the children.

c. It’s 2021 and they’re still using the aggressive and destructive litigation strategies they started in 2014. Strategies that have destroyed their children.

d. And now they’re here wondering why their almost 13 year old daughter is so emotionally damaged.

Order

23The order:

a. Temporary order per minutes of settlement, paragraphs 1 & 2 re family therapy to be conducted by Gillian Sheldrick. On consent, add: “S.G.B. is to be involved in that therapy immediately. The therapy is to be identified as “family reconciliation therapy”.

b. Temporary order per minutes re establishing Zoom calls on Mondays.

c. Not on consent, the mother’s partner C.O. shall not attend any location, event or exchange time involving either child, if he is aware or may reasonably anticipate that the father will be present (and in particular during the father’s parenting time with either child, or any professional or educational appointment in relation to either child).

d. Both parties shall be equally involved with all third-party service providers for the children (including medical and educational personnel), and neither party shall initiate any third party services or counselling without the participation of the other.

e. The father’s motion in relation to a change of timesharing or enforcement of timesharing is adjourned pending the completion of reunification counselling.

Conclusion

24When a child gets hurt, there is no pleasure in saying “I told you so.” We mustn’t ignore the past (we can learn from it). But in family court the focus is always on the future.

a. For years this court has been echoing warnings from professionals that these two parents have been jeopardizing the mental health of their children by relentlessly engaging in bitter and destructive litigation.

b. It’s the same warning we repeat for all high conflict parents: You may pretend you’re “fighting for the sake of the children”. But that’s just an excuse to engage in self-centered and impulsive behaviour. It’s not what your children want or need.

c. In S.G.B.’s case we have now tragically progressed from “foreseeable harm” to “actual harm”. The affidavit materials; the psychiatric report; and the other professional evidence make it clear that this 12 year old child has been experiencing very serious mental health issues for quite some time.

d. And yet, despite clear evidence that nasty litigation has significantly contributed to the child’s distress, the parents have now responded with...more nasty litigation.

e. And they tell me they’re planning a “long motion” for 2022.

25There is no lack of love here. Just a lack of insight, which has created a bizarre disconnect:

a. Some days, the mother and father separately drive to a government building called a hospital where they say they are trying to get help for their daughter.

b. Other days, the mother and father separately drive to a government building called family court where they say they are trying to get help for their daughter.

c. They can’t seem to understand that what they do in one building undermines any progress in the other.

Pazaratz, J.