COURT FILE NO.: FS-14-81793

DATE: 2021-01-28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

James Scot Thomson

Shawn Philbert, for the Applicant

Applicant

• and -

Jill Fleming

Faryal Rashid, for the Respondent

Respondent

HEARD: January 27, 2021 (by Zoom)

RETURN OF MOTION FOR ACCESS (Sixth hearing)

Baltman J

[1] The parties married in June 2012. Their daughter, Kaelin, was born shortly after, on October 6, 2012. The parents separated in May 2014. Kaelin is now 8 years old.

[2] Scot was exercising regular access until late June, 2019, when a physical altercation occurred (involving both parents and Kaelin) during an access transition. For some considerable time after, Kaelin – with Jill’s support – refused to see Scot.

[3] This parenting dispute first came before me in early April, 2020. Since then I have issued 5 decisions on this matter[^1]. In my previous decisions I determined that a) Jill had been wrongfully withholding access; and b) the parties needed a parenting mediator who would facilitate a resumption of access.

[4] The parties eventually retained Mr. Steven Cross, who has been working with the family since May of 2020. He is collaborating closely with Kaelin’s therapist, Ms. Erin Powley.

[5] Despite regular sessions with the parents, both Mr. Cross and Ms. Powley have concluded that the goal of increasing access and an improved relationship with Scot has, thus far, largely failed. Their recent joint “Summary Report” of January 15, 2021, advised as follows, in brief:

According to Stephen Cross, mediator

• Kaelin’s response to increased visits with Scot has escalated badly;

• Her anxiety is largely transferred from Jill;

• Kaelin continues to be very “enmeshed” with Jill;

• While Jill is not consciously or maliciously interfering, her fear and anxiety regarding Scot is a huge impediment to his relationship with Kaelin;

• Jill’s ability to “say the right words, yet model something different” is troubling;

• Scot is also somewhat rigid and unrealistic regarding Kaelin;

• Recommendations: Scot to have significantly longer access periods with Kaelin, so that he is in a caregiving role, rather than simply being a parent who receives the child for a few hours.

According to Erin Powley, psychotherapist

• There has been a significant decline in Kaelin’s overall emotional state over the past 8 months, which coincides with reconciliation attempts with her father;

• As there has been an escalation in access from phone calls to in person visits, and discussion regarding overnight visits, Jill’s anxiety has also continued to increase;

• Kaelin sometimes parrots Jill’s concerns regarding Scot;

• Ms. Powley has worked “extensively” with Kaelin to learn coping strategies to regulate her emotions, “but she is no longer receptive to these”;

• Scot has not been able to connect with Kaelin, due both to Kaelin’s willfulness and his limitations in knowing how to interact with her;

• Scot will have great difficulty managing her behaviour without professional support and possibly crisis intervention;

• Recommendations: continue to increase visitation a few hours at a time, with overnight visits starting in February at the earliest; co-parenting therapy for both parents.

[6] After receiving those reports, both counsel requested my assistance in procuring further “clarification” from Mr. Cross and Ms. Powley as to precisely how the access should be increased. Following a teleconference with counsel on January 22, 2021, counsel obtained a detailed access schedule (dated January 24, 2021), jointly proposed by Mr. Cross and Ms. Powley[^2]. In submissions today both parties largely agreed with their recommendations, except that Scot wished weekend visits to begin somewhat earlier than stipulated. Given that Mr. Cross and Ms. Powley have had frequent contact with the parties over the last several months, and agree on how to move forward, at this stage I accept their recommendations, with some slight adjustments made to accommodate Scot’s work schedule.

[7] The visitation schedule shall therefore be as follows:

Sunday January 31 1:00 pm – 4:30 pm

Sunday February 7 1:00 pm – 4:30 pm

Saturday February 13 3:30 pm – 7:30 pm

Sunday February 21 10:00 am – 2:00 pm (Kaelin to bring items to set up room for overnight next weekend, and to help plan meals for the weekend)

Saturday February 27 – Sunday February 28 (first overnight) From 3:00 pm Saturday to 2:00 pm Sunday

Saturday March 6 – Sunday March 7 (overnight) From 3:00 pm Saturday to 2:00 pm Sunday

Saturday March 13 – Sunday March 14 (overnight) From 3:00 pm Saturday to 10:00 a.m. Sunday

Saturday March 20 – Sunday March 21 (overnight) From 3:00 pm Saturday to 10:00 a.m. Sunday

Friday March 26 – Sunday March 28 (first full weekend) From 7:30 pm Friday to 10:00 am Sunday

[8] The above schedule may be altered upon the direction of Mr. Cross in accordance with Kaelin’s best interests, with any such change to be communicated in writing to both counsel. For each visit, unless the parents agree otherwise, Jill shall drop Kaelin off at Scot’s home and Scot will drive her back to Jill’s home.

[9] I also agree with and adopt the additional recommendations of Mr. Cross and Ms. Powley regarding behavioural expectations during these visits, and Jill’s responsibility to foster and promote such behaviour. In particular:

a) Upon arrival Kaelin shall walk from the car directly into Scot’s home;

b) She shall remove her coat and shoes/boots;

c) She may sit anywhere in the house except the stairs;

d) She shall listen to Scot and be polite;

e) She shall engage in at least one activity with Scot for a minimum of 15 minutes;

f) Kaelin shall not have her phone with her for at least the next two visits; thereafter it can be reintroduced gradually as Mr. Cross and Ms. Powley recommend.

[10] I accept Mr. Cross’ view that a blackout period may be counterproductive at this stage but should remain an option for the court to consider going forward. There is nonetheless a firm message here today for each parent. For Jill, she needs to vigorously convey to Kaelin that she must listen to Scot and that he is an important and permanent part of her life. For Scot, he needs coaching on how to parent a highly resistant child.

[11] To that end, and in accordance with the recommendations of Mr. Cross and Ms. Powley, the following therapies shall be implemented:

a) Kaelin shall have a psychological assessment with Dr. Fernandes;

b) Jill and Scot shall engage in co-parenting sessions with Danny Firestone of PEACE Psychotherapy; and

c) Scot shall obtain parenting counselling from Mr. Mario Testani.

[12] Subject to any motion that may be brought on this issue, the costs of any interventions shall continue to be paid by the parties in proportion to their incomes, and Scot shall pay his share of Ms. Powley’s bills within five days of receipt.

[13] If necessary, this matter may resume before me at the request of either counsel.

[14] Counsel are to immediately provide a copy of this endorsement to Mr. Cross and Ms. Powley and to their respective clients.

Baltman J.

Released: January 28, 2021

COURT FILE NO.: FS-14-81793

DATE: 2021-01-28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

James Scot Thomson

Applicant

• and –

Jill Fleming

Respondent

RETURN OF MOTION FOR ACCESS (Sixth hearing)

Baltman J

Released: January 28, 2021

[^1]: Thomson v. Fleming, 2020 ONSC 2036 (April 3, 2020); Thomson v. Fleming, 2020 ONSC 3357 (May 29, 2020); Thomson v. Fleming, 2020 ONSC 4724 (August 5, 2020); Thomson v. Fleming, 2020 ONSC 6454 (October 22, 2020) and Thomson v. Fleming 2020 ONSC 7176 (November 20, 2020).

[^2]: Exhibits “B”, “D” and “E” to the affidavit of Scot Thomson dated January 25, 2021