SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TROY LAWRENCE, Applicant
AND:
LAURA MOLL, Respondent
BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD
COUNSEL: L. Korhani as agent for C. Hardy, for the Applicant
D. Zeldin, for the Respondent
F. McFarlane, for the OCL
HEARD: June 3, 2021
ENDORSEMENT
1This is the Applicant Father’s Motion to Change. It was scheduled for argument with opportunity for oral evidence. The witness of the OCL, Jason Millward, testified with his affidavit serving as examination in chief and cross-examination by Applicant Father’s counsel (most aligned in interest), Respondent Mother’s counsel (opposing the evidence in the affidavit), and reply by counsel for the OCL.
2Kayne is 10. The first court order addressing parenting time was in 2013. There have been changes in the arrangements over time. Almost without respite, the child has been raised in the center of parental conflict.
3By the end of argument it was apparent to me that no-one could really state what combination of orders and agreements were currently in place. Before they were excused, therefore, I required counsel to jointly present a summary of the terms currently in effect.
4This lack of attention to active terms is perhaps understandable because both parties and the OCL were focussed on the dispute about parenting schedule. The current arrangement is week about. The Respondent Mother wants to retain that schedule. The Applicant Father wants primary care with the child spending alternate weekends with his mother.
5The parties argued this case as an interim motion citing law about caution and when caution should give way to best interests. I see nothing in the endorsement of Jain J. putting the issue over to a long motion with provision for cross-examination of the OCL social worker to suggest it was intended to be interim. Indeed, it was her strategy in response to the OCL asking for a motion for Summary Judgement on the issue of parenting schedule.
6Consistent with the Family law Rules, it is just, fair and proportionate to make a final determination when in possession of evidence from the parents, the Simcoe Muskoka Child Youth and Family Services, the OCL and armed with the views and preferences of the child. All the tools in the tool box have been employed for this court to assess whether the wishes of this 10 year old child should be heard.
7Kayne has consistently stated, since before the Motion to Change was brought by the Applicant Father in 2018, while the Simcoe Muskoka Child Youth and Family Services was involved with the dispute in 2019, while telling the OCL counsel and then the OCL social worker his views and preferences and while in counselling to the present date; that he wants to live with his dad.
8He has gone “to and fro” a bit on whether he wants to continue overnights of just have day visits which he envisions he could have whenever he wants because his dad would let him.
9One point of dispute has been the Respondent Mother’s “hands on” methods with Kayne including physical discipline which in 2019 the Simcoe Muskoka Child Youth and Family Services verified as excessive physical discipline and yelling.
10The Simcoe Muskoka Child Youth and Family Services in 2019 was also concerned about the Applicant Father’s vigilance: “A further allegation about post separation conflict was verified for the father as it was clear that Kayne was being exposed to too much information about adult issues”.
11To simplify: in the context of concerns of physical abuse and turmoil in the household because of the mother’s conflict with her mother witnessed by the child, with the spectre of the father’s contribution to the child’s distress by providing him too much information about the dispute; the litigation could move on after my ruling today about the parenting schedule, to determine points in dispute like the number of occasions and seriousness of the mother’s physical discipline when we know that the Simcoe Muskoka Child Youth and Family Services verified it occurred but did not consider it necessary to put restrictions on the mother; or, on the other hand, to dispute whether the father has engaged in alienation when we know that in 2019 the Simcoe Muskoka Child Youth and Family Services verified that some of the child’s negative information about his mother came from him and that the therapist, certain about Kayne’s consistency is “less certain about Kayne’s independence in that Kayne is very aware of his parents’ position and views and preferences about how much time Kayne should spend with each parent.”
12We could continue such litigation so that one parent can declare I’m right and you’re wrong, or do what we should do by planning a strategy to demonstrate to Kayne that the adults who make decisions about his life will listen to his expression of distress. We should listen to his stated desire to live with his dad, but guard against the potential that he will be deprived of the opportunity to have real relationship with his mom.
13To that end there must be a continuing therapeutic relationship for Kayne so he has someone to tell, other than either parent who may be prone to gathering ammunition for the dispute, and who can guide Kayne through the pain and distress he has experienced because his parents have been unable to provide him with an end to their ongoing conflict.
14To that end each of the parents must strive to understand not what the other one has done to deprive Kayne of a peaceful childhood, but what they have done. They each require personal counselling from a professional that will confront them with their contribution to the dispute which can be easily referenced from their finger-pointing affidavits filed before me.
15To that end the court, with the assistance of counsel, must give clear structure to define their obligations to promote the child’s peaceful enjoyment of time with the other parent, tools for communication and decision-making and a stern warning that failure for them to de-escalate their conflict can only cause Kayne long term pain, suffering and eventually, resentment that they did not do better by him.
16On a more positive note, it is a pleasure for me to listen to the voice of the child delivered through the adults who have been asked to explore it. How often I have experienced the sweet insight of a child who can so easily see what is going on between their warring parents because they have lived in the war zone. How poignant it is to listen to a child who wants the love of both parents, a child with their own sense of justice and fairness, try to maneuver their way through the treacherous mine field of their parents’ anger, vindictiveness, hyper-vigilance, manipulation and over-reaction.
17Sometimes a child simply longs for one parent at a particular point in their life. Sometimes a child simply needs to align with one parent because the stress of the battle is too much to bear. Sometimes going back and forth between houses is just too complicated. Sometimes a child needs to find a way to get people to listen so escalates a small complaint into a reason when really all he wants is to have his feelings heard.
18Of course a 10 year old child is not free of influence! His parents are still, in some ways, his whole world. What the OCL evidence states is that because they have not been able to solve his problem, Kayne has been forced to choose, knowing full well the position of each parent.
19I hear him.
20Once you have asked a child for his views, and you hear him, what message does it give to the child if you ignore him?
21How, or why, would he trust his parents, the court’s investigators, his therapist, the judge or, perhaps, anyone again with his true feelings?
22Rhetorical question: he would not. Rendering a child unable to trust is not in his best interests.
23That said, I do not relinquish my responsibility to create workable strategies to maintain relationship between Kayne and his mother. It is naive to say “whenever I want – dad will let me” in the context of this conflict. A firm schedule is required.
24In my preliminary endorsement after the motion was heard I tasked the parties as follows:
I have heard argument but cannot render a decision without certainty as to which terms of prior orders or agreements are operative.
Therefore, by Tuesday at 9am Mr. Zeldin will circulate a summary of current operative terms to counsel and draft Minutes of Settlement as to such terms as may be ripe for agreement.
By Wednesday at 4pm counsel will submit to me through my judicial assistant Nicole.anderson@ontario.ca an agreed list of operative terms as of June 3, 2021, Minutes of Settlement of any terms agreed between them subsequent to argument and a list of specific terms from previous orders and agreement that I must adjudicate because they cannot agree to operative terms or their replacement.
Judgment reserved on the issues argued in the motion.
25I have reviewed the Minutes of Settlement filed which specify, appropriately,
(1) These Minutes, together with the decision of Justice Eberhard on the Motion heard June 3, 2021 replaces all previous temporary or final Orders relating to the parenting of the subject child.
26I will, herein, make my order on issues addressed in the motion and I hereby approve the Minutes of Settlement filed and incorporate the terms into my final order.
27I note in the materials submitted after argument that overnight Christmas access is addressed. That gives some clues as to the openness and ability of the parents to facilitate overnight access which should not be eliminated, even as the child’s wishes include elimination sometimes as his thoughts go “to and fro”. Overnight is hard to resume once it has been interrupted.
28My decision is that the week about parenting schedule is terminated and replaced by the parenting schedule set forth here.
29The parenting arrangements set out here shall only be changed by mutual written agreement or court order, and neither party shall attempt to alter them unilaterally.
30The primary residence of Kayne shall be with the Applicant Father.
31Except as otherwise provided the Respondent Mother shall have parenting time with Kayne on weekends from Friday after school until Monday return to school which shall occur every second weekend commencing on Friday, June 25, 2021.
32As I do not know which house Kayne is in currently, or when parties will become aware of my order, counsel are directed to assist in orderly transition between now and June 25, 2021 when the new schedule commences.
33The weekend parenting time will include any extra days of long weekends; and/or professional development days that fall on the scheduled parenting time.
34If school is not in session on the day when the child is normally exchanged the arrangements for pick-up shall be 4pm and the arrangements for the return of the children shall be 9am.
35Both parties may attend the child’s activities with their respective families, and neither parent shall interfere with the other parent having some time with the child at the event.
36Neither parent shall schedule activities for the child during the other’s parenting time except with the prior consent of the other parent, which shall not be unreasonably refused.
37The Respondent Mother will have 2 vacations of uninterrupted parenting time (being a week with both adjacent weekends) with Kayne during the school summer vacation period, one in July and one in August which may not be exercised consecutively. The Respondent Mother shall be required to notify the Applicant Father her choice of times by May 1, each year.
38In 2021, it being too late to give such notice, unless the parents agree to vary this schedule in advance in writing, I fix the Respondent Mother’s uninterrupted parenting time July 9 -July 19; and August 6 -August 16, 2021.
39In 2021, unless the parents agree to vary this schedule in advance in writing, the Applicant Father’s uninterrupted time is from July 19 - August 6 and August 16- August 27, 2021.
40To encourage clarity, I affix as Schedule A, a calendar showing the schedule from now to September.
41Such further and other parenting time as the parties may agree upon from time to time.
42Neither party shall take the child out of Canada without the prior written consent of the other, which shall not be unreasonably withheld.
43The parties shall be required to provide the other party with at least 60 days advance written notice of a planned change of residence more than 15 kilometres from their current residences.
44The parties shall continue Kayne in counselling until the counsellor recommends otherwise.
45If any party wishes to address the issue of costs, they shall consult among counsel and propose a schedule for submitting written argument of no more than 2 pages, together with Bills of costs and offers through my judicial assistant Nicole.anderson@ontario.ca and forthwith advise Ms. Anderson of the schedule no later than June 15.
EBERHARD J.
Date: June 10, 2021
SCHEDULE ‘A’
2021
Sun
Mon
Tue
Wed
Thu
Fri
Sat
Jun
1
2
3
4
5
6
7
8
9
10
AF
11
AF
12
AF
13
AF
14
AF
15
AF
16
AF
17
AF
18
AF
19
AF
20
AF
21
AF
22
AF
23
AF
24
AF
25
AF/RM
26
RM
27
RM
28
RM/AF
29
AF
30
AF
2021
Sun
Mon
Tue
Wed
Thu
Fri
Sat
Jul
1
AF
2
AF
3
AF
4
AF
5
AF
6
AF
7
AF
8
AF
9
AF/RM
10
RM
11
RM
12
RM
13
RM
14
RM
15
RM
16
RM
17
RM
18
RM
19
RM/AF
20
AF
21
AF
22
AF
23
AF
24
AF
25
AF
26
AF
27
AF
28
AF
29
AF
30
AF
31
AF
2021
Sun
Mon
Tue
Wed
Thu
Fri
Sat
Aug
1
AF
2
AF
3
AF
4
AF
5
AF
6
AF/RM
7
RM
8
RM
9
RM
10
RM
11
RM
12
RM
13
RM
14
RM
15
RM
16
RM/AF
17
AF
18
AF
19
AF
20
AF
21
AF
22
AF
23
AF
24
AF
25
AF
26
AF
27
AF/RM
28
RM
29
RM
30
RM
31
AF
2021
Sun
Mon
Tue
Wed
Thu
Fri
Sat
Sep
1
AF
2
AF
3
AF
4
AF
5
AF
6
AF/RM
7
AF
8
AF
9
AF
10
AF/RM
11
RM
12
RM
13
RM/AF
14
AF
15
AF
16
AF
17
AF
18
AF
19
AF
20
AF
21
AF
22
AF
23
AF
24
AF
25
RM
26
RM
27
RM
28
AF
29
AF
30
AF
AF – Applicant Father RM – Respondent Mother