K.H. v. E.H., 2021 ONSC 899

COURT FILE NO.: FS-14-396305

DATE: 20210204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

K.H.

Applicant

– and –

E.H.

Respondent

Andrew J. Kania, for the Applicant

Erin Chaiton-Murray, for the Respondent

HEARD: February 2, 2021

FAIETA j.

Reasons for Decision

[1] The central figure on this motion is the parties’13-year-old son, S.H.. He primarily resides with the Respondent mother pursuant to a consent Order granted in 2015. The Respondent mother brings this urgent motion for, amongst other things, the return of her son who, contrary to the Order has not returned from Christmas holidays with the Applicant father. In turn, the Applicant father brings a cross-motion for, amongst other things, an order to vary the Order to permit S.H. to temporarily reside with him as he alleges that S.H. does not wish to return to live with the Respondent because he has been emotionally and psychologically abused by the Respondent and her partner. For reasons given below, I have granted the Respondent’s motion and I have dismissed the Applicant’s motion.

BACKGROUND

[2] The Applicant and the Respondent were married on July 31, 1999. They disagree on the date of separation – it occurred either in September, 2012 or February, 2014.

[3] In addition to S.H., the parties are the parents of a 17-year-old daughter, A.H.

[4] Since their separation the children have primarily resided with the Applicant mother. She has also been their primary caregiver. The Applicant does not specifically dispute the Respondent’s evidence that S.H. and A.H. have a close relationship.

Consent Order

[5] A consent Order, granted by Justice Paisley on April 2, 2015, addresses child support and access but not custody:

(a) It provides that the Applicant father shall pay $438 per month in child support to the Respondent mother based on an assumed income of $30,000.00 and that he shall contribute 50% of certain expenses of the children. There is no dispute that the amount of child support remains unchanged despite a letter dated July 29, 2019 from Mr. Kania which states that the Applicant father’s income in 2018 was $93,000.00.

(b) It provides that for long as child support is to be paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year. The Respondent father does not specifically dispute the assertion that he has refused to provide basic financial disclosure to the Applicant mother on an annual basis.

(c) The Order also provides that the Applicant father shall access to the children on alternate weekends, two weekday evening per month and by telephone between 7:30 pm and 8:00 p.m.. It also provides that the Applicant father shall exercise access on a consistent basis and that the Respondent mother shall be entitled to return the matter to court in the event that he does not do so.

(d) The Order also provides that the Applicant father shall provide the Respondent mother with a signed letter from his treating psychiatrist or general practitioner confirming the Applicant’s treatment plan and what, if any, concerns the medical professional has with the children being in the Applicant’s care. The Applicant father states that he was emotionally devastated as a result of the breakdown of their marriage and alleges that the Respondent had an affair, which she denies.

[6] The Respondent mother states that in the four years subsequent to the Order, the Applicant father would often not show up or cancel his alternate weekend access at the last minute on Friday afternoons. The Applicant father does not specifically deny this assertion.

[7] The Respondent mother also states that the Applicant father has only exercised weekday access, as provided for under the Order, on five occasions. The Applicant father states that the Respondent mother has refused to communicate with him and not allowed him to see the children during the week. The Respondent mother denies that he asked for weekday access.

[8] The Respondent mother states that A.H. has refused to visit with the Applicant father since late 2018 after he was verbally abusive towards her. The Applicant father does not specifically deny this allegation. The Respondent mother also states that A.H. has refused to have any contact with the Applicant since 2019. On the other hand, since 2019 the Applicant has begun to exercise his alternate weekend access with S.H. with regularity and has had “somewhat regular” contact with him. This is not specifically disputed.

[9] The Applicant does not specifically dispute the Respondent’s following statement:

Despite A.H. making it explicitly clear to the Applicant that she does not wish to have any contact with the him due to his abusive treatment of her in 2018, the Applicant continues to contact A.H. in various ways including calling him and showing up at her work in the past and refusing to leave until she speaks with him, and phoning and emailing the vice principal at her school asking to speak with A.H.. The Applicant has also sent communication to A.H. through S.H. indicating that he will pay for some of her university costs if she agrees to talk to him.

[10] The Respondent mother states that the until December 25, 2020, both children continued to reside primarily with her. She states that the Applicant father exercised his access visits sporadically. The Applicant father specifically denies this assertion. He states that A.H. has been “alienated” as the Respondent mother “badmouths” him in her presence. The Respondent mother denies these allegations. She states that:

I vehemently deny the allegation that A.H. has been alienated from the Applicant. A.H. experienced an emotionally traumatic situation in the Applicant’s care and has refused to return. Notably, the Applicant could have taken proper steps to address this, repair his relationship and resume contact appropriately with A.H. but has chosen not to do so – preferring instead to put the blame on others. A.H. is a smart, mature and sensitive young woman. She is more than capable of making her own decisions and I have not influenced her in any way regarding her choice not to have contact with the Applicant following the incident.

May 2019

[11] The Applicant father states:

S.H. has been miserable living with the Respondent and her boyfriend since early in 2019. In May of 2019 I spoke with my lawyer and advised him that S.H. had disclosed this information to me and that he desperately wanted to change his residence to live with me. [Emphasis]

[12] Despite allegedly being aware in May 2019 that S.H. was “miserable” and “desperately” wanted to live with him, the Applicant did not communicate this information the Respondent mother or bring a motion to vary the access provisions of the Order.

[13] The Respondent mother states:

Throughout his affidavit, the Applicant attempts to suggest that I have “admitted” that S.H. wishes to live with the Applicant. He makes similar statements at least five times in his affidavit, all of which are false. I do not admit or accept that S.H. wishes to live with his father. Rather, I am deeply concerned that S.H. has been manipulated, coerced, influenced or otherwise directed by the Applicant to say these things, contrary to his best interests.

My concern is based in part on statements made to me by S.H. over the last two years and my own observations of S.H.’s demeanour on returning from access weekends. On May 5, 2019 S.H. returned from an access visit with the Applicant. He told me that the Applicant was pressuring him to come live with him. He asked me if it was “bad to break a promise”. When I asked him what he meant, he broke down crying and said that his dad made him promise he would come live with him. He told me “you know how dad is, he keeps asking until he gets the answer he wants”. S.H. was very upset and clearly distressed by the pressure the Applicant was putting on him. Perhaps most concerning to me is that S.H. told me that while he was with his dad that weekend, the Applicant had contacted his counsel, Mr. Kania, and put the phone on speaker phone demanding that S.H. tell Mr. Kania that he wished to reside with the Applicant. S.H. was very shaken by this incident.

On another occasion in the summer of 2020, S.H. told me that the Applicant had repeatedly asked him whether he would prefer to live with the Applicant and Monica (his girlfriend at the time) or with the Applicant and his grandmother. S.H. was also visibly upset by these conversations. [Emphasis added]

[14] At the hearing of this motion, Mr. Kania denied participating in any such conversation.

[15] The Respondent mother states that the Applicant father first raised the issue of S.H. living with him in May, 2019. She states that the Respondent sought the involvement of the OCL.

[16] On May 2, 2019, the Applicant’s lawyer sent a letter to the Respondent’s lawyer which states:

… our client …has advised us that S.H. has very firmly advised him, over a considerable period of time including at present, that he wishes to change his primary residence with our client and his common-law partner, Mariola. In the circumstances, we are requesting your client’s consent to seek an Order involving the Office of the Children’s Lawyer so that S.H.’s independent wishes can be verified. If your client will not agree then we will have to bring a motion and seek costs.

[17] The Respondent consented to the involvement of the OCL many months later by letter dated December 11, 2019. An attempt to file a form 14B motion for an order requesting the OCL’s participation in March, 2020 after the onset of the COVID-19 was unsuccessful. The motion material was accepted for filing in September, 2020 and that motion remains outstanding.

Events Since Christmas 2020

[18] The Consent Order does not address access over Christmas holidays. In the past, the Applicant would request additional time over the holidays through his lawyer. He did not do so in December 2020. This is not specifically disputed by the Applicant father. By coincidence, the regular weekend access exchange for S.H. occurred on Friday, December 25, 2020. In accordance with the Order, S.H. was to be dropped off at a nearby Starbucks on Sunday, December 27, 2020 at 6:00 pm. This did not occur.

[19] Instead, at about 5:40 pm on December 27, 2020, the Respondent mother received a telephone call from S.H. who told her that he was living with the Applicant father. The Respondent mother states that S.H. sounded distraught and very uncertain about what he was saying on the telephone. She told S.H. that she expected to see him at 6:00 pm at Starbucks. Immediately after their call ended, the Respondent mother received a text message from S.H.’s cell phone stating:

Hi not going to be picked up today because I am living with dad now on I can decide I am 13 Dads lawyer says ok to stay with dad and my principal

[20] Shortly thereafter, the Respondent mother contacted the York Region Police. Out of concern for S.H., the Respondent asked the police to do a wellness check. She states that the police told her that S.H. had reported that “… he was being “picked on”” and that the Respondent’s partner was “violent”. The Respondent states:

My partner has never been abusive or violent in any way towards me or to S.H. and A.H.. My partner has not history of criminal activity and has only ever had a positive relationship with S.H.. This allegation has never been raised by the Applicant in any capacity prior to this date.

… S.H. apparently told the Police during this visit on December 27, 2020, that he will be starting a new school, though I was not made aware of this until sometime later. …

[21] The Respondent mother states that the police informed her that there was nothing that they could do other than check and confirm that S.H. was not being directly harmed by the Applicant, which they did not believe he was. The police officer that the Respondent spoke with recommended that she obtain a “police enforced court order”.

[22] The Applicant father states that S.H. has made “independent complaints” to the York Region Children’s Aid Society, the York Region Police (in 2020) and Halton Regional Police (in 2021) of “emotional and psychological abuse inflicted against him by both the Respondent and her partner. The Applicant has provided no particulars of this alleged abuse and states:

The full details of S.H.’s revelations will be contained in their records.

[23] On January 5, 2021 the Respondent’s lawyer sent a letter to the Applicant’s lawyer asking that S.H. be returned that evening. On January 6, 2021, the Applicant’s lawyer replied that:

Our client has advised that S.H. communicated directly with your client that he was no longer comfortable with his living arrangements with your client and her boyfriend. In particular, he has apparently advised the York Regional Police that he was emotionally abused by your client’s boyfriend. He further apparently stated that he did not feel safe. He apparently also advised the York Regional Police that his sister had wanted to speak with our client for the last two years but was barred from doing so. Our client has also advised that the York Region Children’s Aid Society has directly spoken with S.H. and confirmed his wishes and stated that as S.H. is now 13 years of age, they do not object to him making the decision to live primarily with our client. [Emphasis added]

[24] On January 8, 2021, the Respondent’s lawyer responded to the above letter and advised that her client “adamantly disagrees” with the Applicant’s views. She stated:

… S.H. has not reached out to my client or his sister which is highly unusual, and my client is very concerned.

S.H. at no time has indicated to her that there is any such “emotional abuse” in her home. …

What is abundantly clear is that your client has simply chosen to take it upon himself to manipulate the situation, much like he has in the past.

[25] S.H. has attended the same school within the Toronto Catholic District School Board for ten years. On January 7, 2021, S.H.’s teacher told the Respondent mother that S.H. was changing schools. The teacher was concerned as during virtual school:

… it appeared that S.H. was in a basement, and was reluctantly pivoting and looking at a closed door behind him when she asked him if was true he was switching schools. Ms. [G] advised me, and I verily believe, that she asked S.H. how long he was switching schools for, and S.H. stated that he was switching for a year or so. Ms. [G] also indicated to me that she knew something had been going on with S.H. since the Christmas holidays, as he had not been as engaged with school and his grades were beginning to suffer.

[26] On January 8, 2021, the Respondent mother spoke with the school principal who confirmed that it was his belief that the Applicant could choose to switch S.H. to a different school if he wanted. The Applicant father states that the school principal later decided that S.H. could not switch schools as the Respondent mother objected.

[27] On January 9, 2021, the Respondent mother received a call from S.H. from a “blocked” telephone number. She states that:

When I answered the phone, it sounded as though S.H. was in a car, on speakerphone. S.H. seemed distant, and his demeanour was hesitant and indecisive when speaking with me. When I asked him where he was and where he was going, and why had I not heard from him, S.H. told me that his phone was broken, and offered no more explanation. I mentioned that I had recently received a number of texts from S.H.’s number, and S.H. immediately changed his explanation, indicating that his phone was not charged. I then changed the subject and asked S.H. about school and how his work was going. S.H. was more engaged with respect to this issue and told me about different projects that he was working on. I told S.H. that we love him and miss him very much and I asked what was going on. S.H. hesistantly responded, “I’m living with dad”. When I pressed further and stated that there are a lot of people very concerned about him, the Applicant interjected, began screaming at me and then hung up the phone. [Emphasis added]

[28] The Applicant father does not specifically deny the above evidence other than to state that:

… what S.H. actually stated was: “I want to live with dad”. The Respondent yelled at S.H. stating that: “you do not get to decide at 13, you will see”. I simply responded to stick up for S.H. as he was distraught as a result of the Respondent’s outburst.

[29] The Respondent mother denies that she yelled at S.H. or that she has harassed or berated him.

[30] After this telephone call, the Respondent mother sent the following text message to S.H.:

Thank you for calling today. It was so good to finally hear from you. I’m sorry we got “cut off”. Ally was trying to talk to you when the phone was taken away. She misses you very much and wants to her your voice. Please call her. We love and miss you very much.

[31] In response, the Applicant father responded and sent the following threatening, terse text message from S.H.’s cell phone to the Respondent mother:

This is S.H.’s Dad. To repeat Toronto Police. Just because you write it does not mean it is true. You will hear from my lawyer. And I will not back down. [Emphasis added]

[32] On January 14, 2021, the Respondent mother spoke with Ms. Lombardi of the York Region Children’s Aid Society. Ms. Lombardi stated that she had spoken with S.H. and encouraged him to call the Respondent. She also told the Respondent that York CAS had no protection concerns that would necessitate opening a file.

[33] On January 15, 2021 and January 25, 2021, counsel for the Respondent demanded S.H.’s immediate return. The Respondent also spoke to the principal of a school in Oakville and learned that S.H. had been placed into a class at a school located near the home of the Applicant’s mother which is also where the Applicant currently resides.

[34] An email dated January 15, 2021 from the Applicant’s lawyer states:

If your client instructs you to bring a motion then please coordinate dates with our office. We will also need a timetable for the exchange of documentation and possible questioning. There will obviously be a cross-motion.

As well, we will be seeking an Order, in advance of any determination, for the release of the York Region CAS records, given my client’s advice that S.H. has made an independent complaint to them about both your client and her boyfriend, Stephen.

I understand, from my client, that the York Region CAS should also be able to confirm that:

1. S.H. has independently spoken with them and confirmed that S.H. wants to live with my client. (My client has also advised that he has relayed this view to the York Regional Police, and thus we will also need their records);

2. For the moment S.H. needs a break from seeing your client; and

3. S.H. is in a safe place with my client.

Obviously, the York Region CAS records will speak for themselves and I am relaying to you what my client has reported to me. However, these are serious issues, involving allegations of abuse by a 13-year-old in your client’s residence and they must be handled based on objective evidence, respectfully stated. What is clear is that, for now, S.H. is in a safe place.

In addition, my client has advised that S.H. spoke with your client on Monday, January 11, 2021 and specifically told your client that he wants to live with our client. My client has advised me that your client replied by stating something to the effect that he does not get to decide.

Finally, our client is NOT withholding S.H. from your client. He simply does not want to return. Your client is welcome to attend at our client’s residence to speak with S.H. and confirm his wishes. A mutually convenient time will have to be arranged as our client will ask for a police officer to be present as an independent witness as to S.H.’s wishes and to ensure hat there is no attempt to use physical force against S.H.. …

[35] On January 25, 2021, the Respondent states that she received a telephone call from S.H.. She states:

It sounded as though he was speaking to me on speakerphone. S.H. told me a convoluted story about where he is currently staying and suggested he may be at the Applicant’s mother home but couldn’t explain why he had been moved there. By the end of my conversation with S.H., I heard the Applicant become very angry and agitated in the background. I heard him yelling “criminal, criminal” out loud and then the phone was hung up.

[36] The Respondent states that S.H.’s cell phone appears to have been disabled or turned off and has given the Respondent no reliable method by which to contact S.H..

[37] The Respondent’s motion was commenced on January 26, 2021.

[38] The Applicant brought a cross-motion to vary the access provisions of the Order on February 1, 2021. Amongst other things, he seeks an Order appointing Anne Sheehan to conduct an assessment pursuant to section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, at his own expense.

[39] The Applicant father states that S.H. wants to live with him and that:

The only way that I could force S.H. to return to the Respondent would be to exert physical force against S.H..

ANALYSIS

[40] The following issues are raised:

1. Should the Applicant’s cross-motion be dismissed?

2. Should S.H. be returned to the Respondent mother’s primary care in accordance with the Consent Order?

Issue #1: Should the Applicant’s cross-motion be dismissed?

[41] On his cross-motion, the Applicant seeks the following relief:

1. An order abridging the time for the service and file of this Notice of Motion, the supporting February 1, 2021 affidavit of the Applicant and the Form 35.1 Affidavit in support of claim for custody or access;

2. An order temporarily varying the Consent Order in order to permit S.H. to temporarily reside with the Applicant until further order of this court given “S.H.’s expressed wish” and based on his “recent revelations of abuse” as against the Respondent and her partner;

3. An order that S.H. shall continue to attend his school in Toronto online however if he is required to attend in person learning then he shall be registered at a school in Oakville;

4. An order requesting that the Office of the Children’s Lawyer to appoint a lawyer for S.H. so as to ascertain his independent wishes in terms of his living arrangements;

5. An order appointing Anne Sheehan to conduct an assessment pursuant to section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12; and

6. An order that the York Region CAS, York Regional Police and Halton Regional Police release all their records in relation to S.H..

[42] This cross-motion was served by email on the Respondent at 3:35 pm on the day before its hearing. Counsel for the Applicant made a valiant effort to respond to this motion and filed a responding affidavit on February 2, 2021 at 9:35 am. The motions were heard at Noon.

[43] The Respondent relies on Rule 14(4) and 14(4.2) of the Family Law Rules, which when read together, provides that a motion cannot take place before a case conference on the substantive issues is completed unless the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice. The Applicant’s motion could have been brought weeks earlier given that the allegations of abuse were allegedly raised in late December, 2020.

[44] Further, Applicant’s motion materials were not served in accordance with the requirements of Rule 14(11). Notice of the Applicant’s motion was so short that it effectively was a motion brought without notice. From that perspective, none of the requirements of Rule 14(12), which allow a motion to be brought without notice, are satisfied. Further, given Rule 2(2) and 2(4), I find that it would not be just to hear the Applicant’s motion to vary the Consent Order on such little notice.

[45] Rather than dismiss the Applicant’s motion, I find that it is just to adjourn the hearing of the motion to a date to be determined by this court until after a report from the OCL has been provided or a section 30 assessment has been completed unless this court otherwise orders.

[46] One issue raised by the Applicant’s cross-motion is a request for the involvement of the Office of the Children’s Lawyer. As noted earlier, a consent motion was filed in October, 2020 for an order requesting the OCL’s involvement. Today, I arranged for that motion to be brought to my attention and I have granted that Order.

Issue #2: Should S.H. be returned to the Respondent mother’s primary care in accordance with the Consent Order?

[47] Given that there is an existing order which limits the Applicant father’s access to S.H., the starting point for determining whether S.H. should be required to comply with the Consent Order is Rule 1(8) of the Family Law Rules which provides that:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order. [Emphasis added]

[48] In Ferguson v. Charlton, 2008 ONCJ 1, [2008] O.J. No. 486, Justice Spence, set out a three-step process for approaching this kind of issue

1. Is there a triggering event that would allow consideration of Rule 1(8)?

2. In the circumstances, is it appropriate to exercise discretion in favour of the non-complying party?

3. If not, what is the appropriate remedy(s)?

[49] On the first point, there is no dispute that the Applicant father’s failure to return S.H. to the Respondent mother on December 27, 2020 contravened the access provisions of the Consent Order.

[50] On the second point, it is my view that the analysis expressed by Justice McDermot in Michener v. Carter, 2018 ONSC 2780, at paras. 30-33:

30 As pointed out by Chappel J. in Jackson v. Jackson, 2016 ONSC 3466, [2016] O.J. No. 2870 (Ont. S.C.J.), enforcement of access orders provides "unique challenges" to the court. She notes that in the context of contempt proceedings concerning access refusals (and similarly in compliance motions as in the present case) that,

The courts have struggled in the context of contempt proceedings relating to custody and access orders to achieve a balance between the importance of enforcing court orders and encouraging contact with both parents on the one hand, and considerations respecting the wishes of children and the need to ensure their safety and well-being on the other hand. One of the difficulties which the courts have faced in these cases is that custody and access orders rarely include clear and unequivocal terms outlining what a parent is expected to do or not do to ensure that a custody and access order is complied with in the face of a resistant child [para. 62].

31 As disclosed by the numerous cases cited by the respondent, there is ample case law on this issue. The case law makes it clear that there is a positive obligation on a custodial parent to do all that he or she can to ensure that a reluctant child attend on an access visit. That was made clear by the Court of Appeal in Godard v. Godard, 2015 ONCA 568(Ont. C.A.), where the court stated [at para. 28]:

Although a child's wishes, particularly the wishes of a child of S.'s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child's best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent "has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order": Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.J.) at para. 8.

32 MacLeod J. clarified this statement in Karar v. Ella, 2016 ONSC 7926(Ont. S.C.J.) when he relied upon Godard to find that, where the court has determined that access is in the children's best interests, the custodial parent cannot abdicate parental responsibility by merely leaving the decision for access in the child's hands. Justice MacLeod noted that the primary residence parent must take "all reasonable steps" to ensure that access take place pursuant to a court order. In my view, this is particularly so where the parties have agreed that it is in the best interests of a child to have access with the non-custodial parent in a consent order as in the present case.

33 What steps does a parent have to go through to ensure that access take place? In Jackson, Chappel J. suggested four requirements for the parents to ensure that access take place. In para. 63(d) of her decision, Chappel J. suggested an inquiry as to the following four factors:

i. Did they engage in a discussion with the child to determine why the child is refusing to go?

ii. Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?

iii. Did they offer the child an incentive to comply with the order?

iv. Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order? (Godard, Supra.; Jackscha v. Funnell, 2012 CarswellOnt 10467 (Ont. S.C.J.)).

[51] With these principles in mind, I make the following findings.

[52] First, I do not accept the Applicant father’s evidence that S.H. has been “psychologically and emotionally” abused by the Respondent mother or her partner. This allegation is simply a bald assertion without any details whatsoever. Instead, the Applicant relies on the fact that S.H. has over the last month reported these unspecified allegations of abuse to various police departments and children’s aid societies. On the other hand, the Respondent mother has provided numerous specific instances of inappropriate parenting by the Applicant father which are not denied [see paragraph x – the Respondent father putting pressure on S.H. in May 2019 to live with him; paragraph x – having S.H. call the Respondent mother on his cell and listening to their call and then yelling at the Respondent and abruptly ending the call]

[53] Second, assuming for the moment that there is any truth to the claims of psychological and emotional abuse, then it was the Applicant father’s responsibility to communicate those specific concerns to the Respondent mother and discuss how to resolve them. The Applicant failed to do so.

[54] Third, a parent, such as the Applicant father, who engages in self-help tactics contrary to the terms of an access order faces serious questions about their own parenting skills and judgment and runs the risk of being viewed as a “manipulative, selfish or spiteful parent … [who] simply can't be entrusted with custodial authority they would likely abuse”: Rifai v. Green, 2014 ONSC 1377. That conclusion is available where, as in this case, the Applicant father fails to demonstrate that there is a justified estrangement between S.H. and the Respondent mother and fails to take immediate action to ask this court to vary the access provisions of the court order.

[55] The Applicant father relies on several cases which stand for the principle that it would be unreasonable to expect that a parent would physically force a child who expresses a desire for a change in parenting time. These cases are all fact specific. The cases cited dealt with motions to change not motions for the enforcement of an existing order. Greater weight is given to the views of older teenagers: Fraser v. Logan, 2013 ONCA 93. Nevertheless, there must be certainty that it is the voice of the child that is being heard, not the voice of the parent.

[56] I find that the Applicant father has failed to demonstrate his failure to comply with the Consent Order is in S.H.’s best interests. While, in a narrow sense, S.H. may be “safe” living with the Applicant in his paternal grandmother’s residence, that is far from the end of the analysis. I am concerned for S.H.’s well-being. I am concerned that S.H. is a young teenager who cares for his father and does not want to hurt him while on the other hand S.H. appears to be dominated by his father for his own needs. I am concerned that S.H. has had almost no contact with the Respondent mother or his sister since December 27, 2020. I am concerned that it appears that S.H.’s cell phone has been disabled such that the Respondent is unable to contact S.H.. I am concerned that the Applicant has saw fit to unilaterally attempt to move S.H. from a school that he has attended for ten years and have him enroll for in-person learning at a school in another city with the result that he will not be attending school with life-long friends. I am concerned that the Applicant father saw fit to enroll S.H. for in-person learning in Oakville without the custodial authority to do so and without notice to the Respondent mother. If it is true that S.H. attended the York Region Police and the Halton Regional Police to make reports of abuse that occurred in Toronto, I am concerned that he did not make such reports on his own initiative but rather at the behest of the Applicant. In this regard, I note that the Applicant and his counsel have at various times over the last month alleged that both the Respondent and her partner are abusing S.H., and then at another time, alleged that only the Respondent’s partner has abused S.H.. I am concerned that the Applicant’s evidence of abuse is not credible given the inconsistent general descriptions whether violence or emotional or psychological abuse, the inconsistent description of who has committed such abuse (the Respondent’s partner and at other times both the Respondent and her partner), the lack of any particulars of the alleged abuse or when it was reported to the Applicant, the lack of any urgent action taken by the Applicant to bring such allegations to the Respondent’s attention and the court’s attention in order to seek a temporary sole parenting order rather than exercise self-help for a prolonged period.

[57] I find that it is in S.H.’s best interests to make the following order:

• S.H. shall be immediately returned to the Respondent’s primary care and primary residence in Toronto and thereafter shall continue to primarily reside with the Respondent in accordance with the schedule outlined in the Consent Order until otherwise ordered by this court;

• On a temporary basis, the Applicant’s access with S.H. shall continue in accordance with the Consent Order so long as such access, whether in person, by telephone or any other means, is supervised by Brayden Supervision Services Inc, in accordance with any conditions that Brayden Supervision Services Inc may impose; and

• S.H. shall be re-enrolled or continue at St. Anselm Catholic School in Toronto for the 2020-2021 school year and he shall not change schools unless the parties otherwise agree or this court orders.

[58] In ordering that the Applicant’s access to S.H. be supervised by Brayden Supervision Services Inc., I acknowledge that this term was not sought by the Respondent mother. However, having considered the evidence I find that it is in S.H.’s best interests that such access be supervised on a temporary basis. As the Ontario Court of Appeal noted more than 40 years ago in Gordon v Gordon, 1980 CanLII 3616 (ON CA), [1980] O.J. No. 1469, at para. 11, “a custody case, where the best interest of the child is the only issue, is not the same as ordinary litigation and requires, in our view, that the person conducting the hearing take a more active role than he ordinarily would take in the conduct of a trial.”. I direct that the Applicant provide his written submissions of whether supervised access should be continued on a temporary basis within 14 days. The Respondent shall deliver her responding written submissions within 21 days and the Applicant shall deliver his reply written submissions within 28 days. The written submissions shall be no longer than five pages in length.

[59] In making the police enforcement order I have considered the views expressed by Justice Pazaratz in Mackie v. Crowther, 2019 ONSC 6431, at para.14:

a. If our goal is to protect children, why would we select an enforcement mechanism which will inevitably harm the child?

b. Police involvement in dynamic parenting disputes never helps. Nothing could be more upsetting for a child caught between waring parents than to have police officers descend on an already inflamed situation.

c. Children derive no benefit from witnessing their parents getting into trouble with the law. They perceive police as being there to deal with “bad guys.” No child wants to think of their parent as being a “bad guy.” And no parent should place a child in such an emotionally conflicted position.

d. If the objective is to prevent or discourage inappropriate parental behaviour, we must create sanctions which scare offending parents without scaring the child.

[60] In Mackie, the court was assured by the withholding parent that he would abide by the court’s order to return the child. No such assurance was provided by the Applicant in this case. Further, I have no confidence that the Applicant will take meaningful steps to ensure that the Consent Order is complied with and that S.H. immediately returns to the Respondent’s care and his school in Toronto, which today announced would be opening for in-person learning on February 16, 2021.

[61] In respect of costs, both parties incurred costs of about $8,400.00. Given the Respondent’s success, I find that it is fair and reasonable for the Applicant father to pay costs on a partial indemnity basis of $6,025.76 to the Respondent mother within 30 days.

Justice M. D. Faieta

Released: February 4, 2021

COURT FILE NO.: FS-14-396305

DATE: 20210204

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

K.H.

Applicant

– and –

E.H.

Respondent

REASONS FOR DECISION

Justice M. D. Faieta

Released: February 4, 2021