COURT FILE NO.: FC-12-1965-3

DATE: 2022/11/04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Rudsworth Daniels

Applicant

– and –

Nadia Stemberga

Respondent

Eric Letts, for the Applicant

Lauren Walker, for the Respondent

HEARD: October 25, 2022

REASONS FOR decision on urgent motion

sOMJI J

Overview

[1] The Respondent mother Nadia Stemberga has been diagnosed with breast cancer which her oncologist reports is sadly incurable and terminal. She was admitted at the Ottawa General Hospital on September 22, 2022. She is presently in a palliative state and will either remain in hospital or return to die at home under palliative care. The oncologist cannot provide a precise timeline for when she may die. The mother brings an urgent motion for an order to have her 12-year-old son J.D. (“child”) visit her before she dies.

[2] The Applicant father is opposed. He argues that the mother has no insight into the harm that she has caused their son, and it is not in his best interest to mandate such a visit. He argues that the mother bought a previous motion for emergency parenting time based on similar grounds in 2020 when she was first diagnosed with breast cancer and presented a similar medical prognosis. In addition, she has failed to provide updated financial disclosure. He argues there is neither urgency nor a material change from the current parenting order to warrant the mother’s request.

[3] Attempts by the mother to resolve the issue for visits with the child before her death without the court’s intervention were not successful. She therefore brought an urgent motion. Justice Trousdale found the matter to be urgent. I head the motion on October 25, 2022.

[4] The primary issue is whether it is in the child’s best interests to order visitation with his mother prior to her death, and if so, the conditions and scope of the order.

The history of the legal proceedings

[5] The history of these legal proceedings dates back to at least 2013. The Children’s Aid Society (“CAS”) became involved as early as 2012 when J.D. was two years of age. Justice McNamara issued a court order on March 4, 2013, whereby the parties would have joint custody of the child and his primary residence would be with his mother. J.D. was three years of age at the time.

[6] Over the next few years, J.D. appeared to have significant behavioural issues at school and his mother took steps to obtain counselling for the child and the parents.

[7] On February 28, 2019, Kathleen Szirtes provided a clinical consult summary regarding J.D. At this time, it is clear that the child had anger issues, fears related to both parents, difficulty with self-regulation, and significant behavioural problems at school and with his peers.

[8] On September 19, 2019, Janet Claridge also provided a report in which she indicates this is a high conflict case with both parents having to be directed to keep the child out of their adult conflict. She notes that CAS has verified that the mother was emotionally and physically abusive towards the child. On the other hand, Ms. Claridge reported that while she was informed that the child would become easily angered by his mother, the visits she observed between the mother and child went well and that the child was loving with his mother, hugging her and sitting on her lap. She recommended supervised access with the mother at this time.

[9] The mother’s relationship appears to have deteriorated further after this. On August 19, 2020, Kathleen Szirtes filed another report as a result of her observations from four access visits with the mother and child. At this time the child had been in full time care with his father and had not seen his mother for many months. She recognized the child’s behaviour had improved since residing largely with his father. He expressed that he did not want to be left alone with his mother and expressed anger towards her and threatened to harm her. Ms. Szirtes was not able to attribute all of the child’s anger and hostility towards his mother as a consequence of alienation by the father. She found that there were instances of historical events with the mother that caused the child to feel unsafe around her. She concluded that pushing the child against his wishes and preferences may result in dangerous behaviour from him. Nonetheless, she supported continued supervised in-person access and virtual access with the mother.

[10] The mother was originally diagnosed with stage 4 cancer in 2020. At that time, she brought a motion requesting parenting time with the child. Justice Laliberté issued a decision on the motion on August 8, 2020. He reviewed the family history and found it was a high conflict case. Since the parties’ separation, the parenting arrangement has gone from the mother being the primary caregiver, to shared parenting, and now to the father being the primary caregiver with the mother having limited virtual and supervised parenting time.

[11] Justice Laliberte noted that the triggering event that resulted in the change in parenting was an incident in November 2018 where the mother was alleged to have pushed the child while in the shower. According to Janet Claridge’s report of September 2019, CAS verified the incident. I have not been provided the CAS records.

[12] Justice Laliberté noted the long history of animosity and conflict between the parents which has impacted the child. Both parents have provided contradictory affidavits which remain untested. Given the mother’s condition, this matter has not proceeded and is unlikely to proceed to trial. Parenting terms and conditions have been managed by interim parenting orders.

[13] As Justice Laliberté concluded at paragraph 19 of his 2020 decision:

The circumstances are such that this matter is beyond parents having a toxic relationship and being in conflict. We are now at a point where the child’s beliefs, feelings and emotions are deeply rooted in him and cannot be easily unrooted. They are most probably the result of a combination of the following:

1. Being exposed and aware of conflicts between his parents at a young age; such exposure has been continuous;

2. Historical events involving his mother; some of which are said to have been verified by the Children’s Aid Society;

3. Alienation by the father; some of the evidence would support such a finding.

[14] In July 2020, when the matter was before Justice Laliberté, the father was not opposed to supervised access. The issue was the venue for access because there was a genuine concern that the child might harm the mother due to his anger towards her. Consequently, Justice Laliberté ordered two hours of supervised access with the mother every two weeks. The mother had supervised parenting time throughout 2020 at Rose Garden Supervised Access Centre in Lanark County. The observation reports of those visits were provided to me for review by the father. The father attests that the mother’s visits with the child terminated after failed efforts to rebuild trust during a year of supervised visits. However, upon review the Rose Garden reports, I did not find this to be the case. While there were tensions as between mother and child, the visits appeared to go well. It is unclear why the visits ended in November 2020.

[15] On January 13, 2021, Justice Ryan Bell imposed a new parenting order on consent of the parties. The mother’s parenting time is to be determined by mutual agreement of the parties with respect to time, location, supervision, and logistics.

[16] The mother reports that in 2021, her cancer worsened. She was admitted to hospital from August 23, 2021, to September 2, 2021. Her precise prognosis at that time is unclear, but she was certainly not improving. She was readmitted a year later on September 22, 2022, with a severe pain crisis, and as discussed below, has now been informed by her oncologist that her cancer is not curable. She recently completed surgery where she had a rod inserted in her femur to prevent it from breaking. She has limited mobility and requires assistance for her basic needs.

[17] The mother claims the father has not cooperated with her requests to see her son in the past year. The mother contacted the father to request a visit on November 24, 2021, but received no response. She sent another request on May 23, 2022, asking for a visitation and still no response. A copy of those emails was filed. The father has not filed any email responses or explanations for why he did not respond to her requests. The current parenting order does state that the parenting time is to be determined upon agreement by the parties. Whatever the father’s reasons, his conduct in ignoring her emails is effectively non-compliance with the court order.

[18] On June 9, 2022, the mother went to the father’s home in desperation. The father opened the door and told her that the child did not want to see her. He brought the child to the door and according to the mother, the child looked down and stated, “I don’t want a mother in my life.”

[19] The mother acknowledges that she inappropriately contacted two of the child’s friends through Roblox, an online game she used to play with J.D. The information came to the attention of the school principal by another parent. She has apologized for her conduct in this regard and explained she did it out of desperation because the father was not cooperating with visitation. She accepts she has made mistakes in the past and acknowledges her relationship with her son is strained. She recognizes that the damage may not be resolvable before she dies. She is willing to have access subject to any conditions the court imposes that allow her to see her son before she dies.

Analysis

[20] The only consideration for determining whether visitation with the mother should be considered is the child’s best interests.: Children’s Law Reform Act, RSO 1990, c C.12, s 24, as amended SO 2020, c 25, Sched 2, s 6 (“CLRA”). Similar provisions are set out in the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am. These provisions endorse a child-centered approach in determining parenting orders: Young v Young, 1993 34 (SCC), [1993] 4 SCR 3 at pp 62-63.

[21] The best interests of the child framework requires primarily consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss 24(1) and (2).

[22] However, s. 24(3) also lists the following additional factors that must also be considered: CLRA, ss 24(3):

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[23] In arriving at my decision, I have considered all the above-noted factors, but discuss below only those which I find are most pertinent in this case.

s. 24(3)(e) the child’s views and preferences

[24] On October 15, 2022, the child J.D. met with his counsellor Kathleen Szirtes. During that session, the child discussed the mother’s request for visitation.

[25] The counsellor described J.D. as well groomed, organized and calm. He was able to sit through an hour of conversation without becoming agitated. He was also able to have a discourse about his mother without becoming violent or threatening towards her which she noted was a substantial change for this young person.

[26] J.D. was specifically asked about visitation with his mother. He was aware that she was dying and wanted to see him. He indicated this made him nervous and was glad he was offered a chance to talk about his feelings on this issue. He stated that he did not care if his mother was dying, and he had no interest in seeing her ever again. He said he felt disgusted that she would be making him feel bad by saying she was dying again. He did not care if she wanted to see him out of love or other feelings. He had no care for what she felt or thought anymore.

[27] J.D. stated that if the courts tried to make him see his mother, he would not go. He was aware that at 12 he had a right to decide what happened to him and where he went. He stated he did not feel safe around his mother, and the Judge “shouldn’t force me to do something that makes me feel anxious is stressful and is unwanted.”

[28] I find the child’s views and preferences are clear. He does not wish to see his mother. While I respect his views and preferences, for the reasons discussed below, I find they are not entirely determinative of the matter in these circumstances.

s. 24(3) (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[29] J.D. is now 12 years of age and has recently started middle school. In his most recent meeting with Ms. Szirtes. he reported that he was elected co-president of his school and is proud of his accomplishment. He has started to play sports in school. He has maintained friendships with some of the boys from his previous school. He is content with his home life with his father. He has also maintained a relationship with his maternal aunt whom he enjoys spending time with when she visits Ottawa. The father corroborates the child’s reporting indicating that J.D. is presently thriving academically, socially, and in extracurricular activities.

[30] Maintaining the child’s emotional, mental, and physical stability as he proceeds into his teenage years is a best interest factor that must be considered. Having said this, J.D. is only 12 years of age. He is not an emotionally mature adult. He does not, and cannot be expected to, have any insight into the complexities of arriving at the truth in high conflict situations or the importance of forgiveness and reconciliation. While I do not believe he will be able to reconcile his feelings of hostility towards his mother through a visitation at her death bed, and in fact I expect it may take years for this child to heal emotionally, I find that for the sake of his long term emotional and mental development, it is in his best interests to see, speak to and listen to his mother at least once before her death. One can only hope that the experience, whether now or at a later date, will allow him to start processing and coming to peace with his complex relationship with his mother.

[31] In addition, the mother expresses concern that the child perceives he is responsible for her illness, and she wishes him the opportunity to let him know that she loves him and that he is not at fault for anything, including her present condition. The father states there is no truth to this, and it is part of the mother’s ongoing absurd narrative that the child discovered her cancer in a dream. I cannot discern from the limited information I have been provided, i.e. a single set of case notes of a recent meeting with Ms. Szirtes, if that is in fact what the child perceives.

[32] Nonetheless, I find that it is important for J.D.’s emotional and personal development to have this opportunity for closure with his mother. It does not bode well for him to go through life with self-doubt, questions, and guilt should he harbor any misplaced feelings about the cause of his mother’s condition or to experience regret in the future for never having taken the opportunity to hear from and be reassured by his mother that he is blameless for both her illness as well as the parental conflict that has impacted this family.

[33] Finally, while the child presently feels tremendous anger towards his mother, it is possible that these feelings will morph into bewilderment, confusion, and curiosity as he matures. He may read this decision again at a later date as well as the many court pleadings and reports concerning the conflict in his family and question why the adults in his life did not at least try to have him meet and resolve these issues with his mother, whatever her misdeeds, before her death.

[34] Finally, it is equally important in the development of his ongoing parental relationship with his father that J.D. does not blame or even be left with the view that it was his father who stood in the way of a final opportunity to say good bye to his mother prior to her death.

s. 24(3)(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

[35] The father has filed an affidavit which, at first glance, suggests that he is vehemently opposed to the child having any visitation with the mother before her death. However, I do not accept that the father is this callous. Indeed, his own son stated to Ms. Szirtes that the father has periodically asked him throughout this year if he would like to see his mother, and it was he who said no. Furthermore, when the mother did attend the house unexpectedly, the father did not slam the door on her face. He reported to her that the child did not want to see her and in fact, the child did come to the door and state as much. While the father has clearly not facilitated visitation with the mother as per the conditions of the Justice Ryan Bell’s Order which requires parenting time between the mother and child as agreed upon by the parents, I recognize that he is in a difficult position and does not want to jeopardize his own relationship with his son by forcing visitation upon him against his will.

[36] During the motion hearing, I pressed Mr. Letts as to whether it was really the father’s position that he would not accede to the mother’s wish to see her only child one last time before her death. Mr. Letts initially stated that he was not prepared to respond to that question because there was no confirmatory medical evidence that the mother was dying, and this was not the issue before the court. I disagree.

[37] The letter from the Medical Oncologist Dr. Arif Ali Awan is clear that the mother is dying and that he is requesting, on her behalf, an opportunity for her to meet with her son on compassionate grounds. The good doctor states:

Due to her incurable, very symptomatic breast cancer and current medical condition, which is sadly uncurable and terminal, I would request if it would be possible for her to meet her son on compassionate grounds.

[38] Following the motion hearing, I was provided another letter from the Dr. Moira Rushton, Medical Oncologist at the Ottawa Hospital Cancer Centre dated November 1, 2022. The father’s counsel notified me the morning of November 4, 2022, that he opposes the admissibility of the letter. I find the medical letter is relevant and has probative value and should be considered on the motion. I note that I had requested the mother’s counsel to provide me with any medical updates on the mother’s situation should they arise in the period before I rendered my decision.

[39] Dr. Rushton confirmed that the mother had breast cancer which was first diagnosed in 2017 followed by a metastatic recurrence to the bone in 2021. She confirmed that the life expectancy of this illness from the date of diagnosis, which I understand to be 2017, with current therapy is approximately five years. This would effectively bring us to 2022. It is clear from Dr. Rushton’s letter that attempts are being made to try different forms of therapy to prolong the mother’s life as much as possible. This does not change the terminal nature of her illness. Should she live longer because of the wonders of medicine, it is something to celebrate, not hold against her.

[40] The fact that neither Dr. Awan nor Dr. Rushton can put a number to the days the mother has remaining does not change the fact that her condition is terminal. Anyone who has experienced loved ones dying from cancer knows that the disease is unpredictable. Sometimes a person can endure much longer than science predicted, and other times, a person’s demise is swift and unforgiving.

[41] The father attended the court hearing by Zoom rather than in person. Towards the end of the motion hearing, having heard my questions to counsel, the father texted Mr. Letts to indicate that should the mother’s death be imminent, he would agree to a visit on compassionate grounds. I find that the medical evidence supports that this is indeed the current situation.

[42] Counsel for the father argues that the mother has not provided updated financial disclosure. I find this is not relevant to the parenting issue for several reasons. First, any conflict as between the parents on financial matters has no bearing on whether it is in the child’s best interest to see his mother before her death. Second, this is not a situation where the mother has abandoned and neglected the material needs of the child. On the contrary, she has consistently paid child support of approximately $1000/month to the father. Third, as seen from Justice Ryan Bell’s Order, the mother has arranged her financial affairs to ensure that, at minimum, there is $185,000 in trust for the child upon her death through an insurance policy from which the father can continue to draw on for child support. Finally, the mother explained that there was no provision in the court order requiring her to provide her income tax returns, but if there is such a requirement in law and that is what the father wishes, she will gladly arrange to do so from her hospital bed.

s. 24(3)(j) any family violence and its impact on the child

[43] As noted earlier, in November 2018, there was an incident where it is alleged that the mother pushed the child in the shower. The mother vehemently denies this and states he fell. She took him to see a chiropractor the same day. While according to Ms. Claridge’s report, CAS verified the incident, there is presently evidence that corroborates the mother’s position.

[44] In speaking with Ms. Szirtes as recently as October 15, 2022, the child stated that there was a historical event where the mother had become mad and yelled at him while he was in the shower. She started screaming at him that he was taking too long and reached into the shower at which time he said he became so nervous he slipped and banged himself. At no time did he report that his mother pushed him.

[45] The child made a similar report to the chiropractor on November 2, 2018, stating he was having a shower, his mother came in and startled him, and he slipped and hurt his elbow. While the mother’s conduct contributed to the fall and injury, there is a distinction when assessing family violence between a parent who is negligent or careless in their conduct resulting in injury to a child as opposed to a parent who deliberately pushes a child with the intention to harm, the latter being an assault.

[46] On the other hand, I am acutely aware that the child’s anger towards his mother cannot have germinated solely from one incident, and there are reports that he fears his mother because of other instances where she lost her temper.

[47] In this case, while there is a reported incident of violence, I do not find that it precludes a visit on compassionate grounds. I find there is low risk that the child would be physically harmed in the hospital setting. In fact, the concern in the past around unsupervised visitation has been not that the child was at risk of harm but was because of his anger towards her.

[48] Having considered the best interests factors, I find that it is in the best interests of this child to have a final visit of one hour with his mother prior to her death. The visit will take place within the next seven days. The father shall facilitate the visit and take the child to the hospital, settle the child in the room with his mother, but not remain for the duration of the visit. Arrangements can be made for a nurse or adult supervisor approved by the father to be present for the visit. Upon completion of the visit, I would ask that counsel send a note to my judicial assistant confirming the visit occurred. If there are issues, counsel may bring the matter back before me.

[49] Thereafter, should the child wish to see his mother again, it will be solely at his discretion.

[50] The court is not here to micromanage what should or should not be said by the mother to the child during this final visit. She is an intelligent woman with insight into the family history. This visit is not a therapy session to right all past wrongs. It is a compassionate visit to provide both the mother and the child with an opportunity for some form of closure prior to her death.

[51] Should the mother have more to say to the child, it was suggested that she write a series of letters to her son and entrust them with a person who may deliver them to J.D. at a later date should he have any interest in viewing them. That may be when he is 18 years of age, an adult, of perhaps a father to his own children one day. The decision will be up to him as he moves forward in life.

[52] A copy of this decision shall be provided to both the child’s school counsellor and Ms. Szirtes. Should either wish to assist the child in preparing for this visit, they may do so with the benefit of understanding the reasons for the court’s order. I will not order a police enforcement clause at this time. I trust the father will facilitate the visit. Invoking the authority of the police to physically drag the child to the hospital will only intensify emotions and will not assist in ensuring a final compassionate visit between the mother and child.

[53] Finally, whatever the outcome of this final visit, let this decision stand as a record for the child that his mother has never abandoned or given up on him, that she loves him, and up to the time of her death, she continued to wish to see and be with him.

Order

[54] There will be an order that:

1. The child shall visit his mother for one hour in hospital in the presence of a nurse or other adult approved by the father. This visit shall occur within seven days of this Order.

2. The father will facilitate the visit. He will transport the child to the hospital.

3. The father may enter the room for the first five minutes to settle the child, but shall not be present for the remainder of the visit.

4. Thereafter any parenting time between the mother and the child will be at the discretion of the child.

5. This Order goes into effect immediately. However, counsel will draft an Order consistent with this decision for my review and signature.

6. Upon completion of the visit, counsel for the mother will report to me via my judicial assistant Tina.gloyn@Ontario.ca whether the visit occurred. Should the parties run into any issues, they may bring the matter back before me as soon as possible.

[55] While the mother is the successful party on this motion and is presumptively entitled to costs, I will not order costs against the father under the present circumstances. Each party shall be responsible for their own costs of the motion

Somji J.

Released: November 4, 2022

COURT FILE NO.: FC-12-1965-3

DATE: 2022/11/04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Rudsworth Daniels

Applicant

– and –

Nadia Stemberga

Respondent

REASONS FOR DECISION ON URGENT MOTION

Somji J.

Released: November 4, 2022