COURT FILE NO.: 308/16
DATE: 20221107
SUPERIOR COURT OF JUSTICE, FAMILY COURT- ONTARIO
RE: Terra Mary Kramer, Applicant
AND:
Martin Benjamin Kramer, Respondent
BEFORE: Mr. Justice Robert B. Reid
COUNSEL: T. Charuk, Counsel, for the Applicant
B. Ludmer Counsel, for the Respondent
HEARD: August 3, 2022
decision on motion
Background:
[1] The parties are parents of A (born January 10, 2008) and E (born January 14, 2010). They were married in October 2003. Their separation occurred in February 2016 and they were divorced by order dated January 12, 2022.
[2] A final order was made by Justice L. Walters dated May 22, 2019, based on an accepted offer to settle by the applicant. It dealt with a variety of matters relating to the way issues regarding parenting would be handled, including such matters as communications, extra-curricular activities, and the appointment of a parenting co-ordinator. A further final order was made by me, on consent, dated December 9, 2019, based on a partially accepted offer to settle by the respondent. Parental responsibility, parenting time and residence of the children was dealt with in that order.
[3] Central to the December 2019 order was a term that the parties would share parenting time with the children on an equal, week-about basis. From the date of separation up to that time, the children had resided primarily with the applicant and had weekend parenting time with the respondent.
[4] Prior to the separation, A was diagnosed as suffering from an anxiety disorder, and as a result, she has been provided with an IEP by the Niagara Catholic School Board. Necessary accommodations have been made. She has seen a counsellor, Barbara Hotson on a regular basis and has had psychiatric consultations. Whether either or both parents are responsible for A’s problem is not clear.
[5] On March 30, 2020, A refused to attend with the respondent for scheduled parenting time. At about the same time, A was observed to have a loss of hair, apparently because she had been pulling it out. The parenting co-ordinator, Jillian Sheldrick, was contacted by the applicant. Ms. Sheldrick made recommendations geared to encouraging compliance with the court orders. She also recommended, and the parties agreed, that Ms. Hotson be engaged on an urgent basis to deal with the matter. The frequency of counselling sessions was increased. Shortly after a series of joint counselling sessions involving the parties, A and Ms. Hotson, the regular week-about schedule resumed.
[6] Through a psychiatrist, A reported in January 2021 that her anxiety was worsening. She had not been taking medication for several months. On February 24, 2021, apparently after A advised the applicant that she was having suicidal ideation, she was taken by the applicant to McMaster Children’s Hospital for a psychiatric consultation. She then resumed taking prescribed medication for her anxiety issue.
[7] From February 22, 2021, the respondent has had no parenting time with A. She refuses to see him.
[8] In September 2021, the applicant brought a motion to change. In it, she asked that the provision for joint decision-making for both children be amended such that she would have sole decision-making authority as to A and that parenting time would be granted to the respondent to be exercised in accordance with A’s discretion. Alternatively, the motion to change sought to suspend the residential schedule contained in the final order of December 9, 2019, pending an assessment under section 30 of the Children’s Law Reform Act. The stated reason for the motion to change was that, despite the encouragement of the applicant and related counselling and therapy, A had refused to spend parenting time with the respondent.
[9] In his response, the respondent sought a dismissal of the applicant’s motion to change and an amendment to the final order to provide that in the event of disagreement as to the children’s medical care, mental health care or education, the final decision-making authority would rest with the respondent.
The issue:
[10] The primary focus of the motion was the lack of parenting time between the respondent and A, and the concern that continued lack of contact – which has now been the state of affairs for over 19 months – will cause further, and possibly irreparable damage to the relationship between the respondent and A.
[11] Despite the ongoing problem with the respondent’s inability to see A, there has been no significant interruption to the time-sharing regime as regards E.
Relief requested:
[12] By motion dated June 14, 2022, the respondent seeks an order, in effect, that the applicant comply with the various outstanding court orders dealing with the children including communication, parenting time, etc.
[13] The respondent asks for “makeup time” on a day for day basis where parenting time was not provided in accordance with the schedule contained in the order of Justice Walters dated May 22, 2019, and in my order of December 9, 2019.
[14] The respondent also seeks other refinements setting out the rules for communicating with the children and sharing information including educational and medical reports, dealing with school attendance, etc.
[15] The respondent seeks an order “that the parties shall cease all unhelpful narratives and educate and cause the Children to immediately cease to believe all such unhelpful narratives.” He then goes on to list 25 narratives to be prohibited.
[16] The respondent asks for an order for family reconciliation therapy with a new therapist, the costs of which are to be the sole responsibility of the applicant with a series of terms as to the implementation of that order.
[17] The respondent requests an order that the current pediatrician no longer act in that capacity for the children but that the existing primary care physician, psychiatrist and dentist continue in their roles.
[18] The applicant did not make a cross-motion, but submitted that in the court’s discretion, an order could be made requiring that a s. 30 assessment be undertaken, as was requested in the motion to change.
Positions of the Parties:
[19] The respondent adamantly asserts that the applicant has deliberately and consistently failed to comply with the court-ordered shared parenting regime in that she has either encouraged A to resist time with the respondent or at the least failed to insist that A comply. He alleges that the applicant has deprived A from the benefit of the positive parenting of which he is capable, which in turn worsens A’s symptoms.
[20] The applicant denies any attempt to avoid the obligations arising from the court orders and asserts that she has done everything possible to encourage A to be with the respondent, but to no avail. The applicant submits that forcing A to see her father will exacerbate A’s emotional problems.
Analysis:
[21] Both parties are capable parents. The fact that E has continued successfully in the time-sharing arrangement to which the parties agreed is evidence of that fact.
[22] In general, children should have maximum contact with both parents when the parents are otherwise willing and able to provide properly for them.
[23] Court orders are not suggestions. Parties are obligated to follow existing orders until there is a successful application to change. Compliance is not something that should be contingent on children’s preferences.
[24] Those general principles must be applied in the specific context of each case, keeping in mind the legislative mandate that the best interests of children should be the guiding principle.
[25] This is an interim motion and a final resolution of the parenting time issue will not occur until trial or settlement.
[26] In this case, it is clear that the applicant is not in compliance with the term of the consent order of December 9, 2021, that there be equally shared parenting time with A.
[27] It is also clear that A has been receiving counselling and medical treatment to address her long-standing anxiety issues. Her counselling at least in part is designed to encourage a positive relationship between A and her parents.
[28] The hair pulling behaviour to which I have already referred appears to have been an outward manifestation of the anxiety felt by A. The hospitalization for psychiatric consultation in February 2021 when suicide was threatened is another example.
[29] The respondent is of the strong opinion that any apparent attempts by the applicant to comply with the court order amount to nothing short of window-dressing, that she is not using her full parental authority to compel A to comply with the consent orders, and that she is promoting what the respondent calls “false narratives”.
[30] Outwardly, the applicant has supported compliance. For example, when A first refused to participate in weekly parenting time with the respondent in March 2020, the applicant accepted the advice of the parenting coordinator and agreed to an increased frequency of counselling. The applicant also appears to have encouraged the resumption of anti-anxiety medication for A, (which had been resisted by the respondent) in keeping with the psychiatrists’ recommendations, designed to reduce the symptoms of A’s condition and presumably to allow for a more measured response on A’s part to the parenting time issue. The week-about sharing of parenting time resumed.
[31] On March 10, 2021, A refused to leave her school with the respondent as scheduled despite the intervention of the school principal and the police. The applicant attended to pick her up only after a standoff of about 3 ½ hours between A and the respondent.
[32] On the advice of the parenting coordinator, the applicant drove A to the respondent’s house for the exchange of parenting time on November 25 and November 26, 2021. A refused to leave the vehicle. The applicant states that she fully encouraged A to spend time with the respondent as demonstrated by taking her to his premises. The respondent alleges a lack of persuasion or compulsion by the applicant to have A leave the vehicle. In response, the applicant notes that on one of those occasions, the respondent was on the telephone and did not come out to the car to speak to A.
[33] Those are examples of instances where each party takes a different view of the objective circumstances to support their respective positions that the applicant is either encouraging or discouraging proper compliance by A.
[34] There are many allegations founded on hearsay. For example, the applicant made three reports to Family and Children’s Services arising from alleged concerns about the respondent’s inappropriate emotional treatment of A. The concerns were not verified. To the extent that the applicant deposes the detail of the advice received from FACS that she should avoid the “punishment” of A for failing to see her father or that he is engaging in a course of parental alienation, I give those comments no weight. Likewise, the respondent refers to a comment in a FACS case note which amounts to speculation that the applicant may suffer from the psychological disorder known as Munchausen syndrome. Again, that hearsay reference by the respondent is not independently supported and I give it no weight. Both are examples of how it is inappropriate to go beyond direct evidence to support a proposed conclusion on an interim motion.
[35] There are further examples of how each party tries to skew the facts in her or his direction. The respondent says that the applicant has tried to walk back her consent (reflected in the December 2021 order), relying on a PTSD diagnosis around that time. What the applicant actually says in her affidavit material filed is that she agreed with the terms to allow time to recover from PTSD and to find a new employment situation. She believed that the children would adjust successfully to the new parenting schedule. On her part, the applicant continues to rely on information she received from E that the respondent took steps to clear out A’s room at his home, indicating that he no longer wanted her to stay with him. She disbelieves the respondent’s firm denial (supported by photos). This motion itself contra-indicates such action by the respondent.
[36] In summary, it is obvious that the parties, engaged in a long-term conflict following their separation and currently focussed on a dispute over the sharing of parenting time with A, take diametrically opposite views about the applicant’s actions and intentions when it comes to compliance with the existing orders.
[37] This is not a case where further court orders directed at the child are appropriate. It is not the function of the court to “teach the child a lesson”. The importance of compliance with court orders should be left with the parents. The better solution is to ensure that the matter proceeds to a trial without delay so that, if necessary, the issues can be aired through appropriate witnesses giving evidence in open court.
[38] I acknowledge that some courts have concluded that a parent’s non-compliance with existing orders may be a deliberate abdication of the parent’s obligations under the law, and that there, forcing the parent to comply is appropriate. In this case, to draw that conclusion requires both a finding that it is the applicant, not the respondent, who bears responsibility for the circumstances leading to the non-compliance, and that forcing the applicant to comply would be in the best interest of A. I am not prepared, on an interim basis, to draw either of those conclusions. It is clear that A is living with an anxiety disorder that may well be exacerbated by enforcement. Further, given her age, she is approaching the point when her own views will have significant weight on any judicial decision, and at the moment, her voice is not being heard directly by the court.
[39] A has been receiving counselling, and although the respondent now takes the position that Ms. Hotson is no longer appropriate for that role, that view may be as a result of his not seeing the hoped-for results of A’s increasing openness to his parental contact. The counselling should continue. Likewise, there is no reason to justify specialist-shopping amongst doctors.
[40] In submissions, the applicant requests an order that there be a s. 30 report prepared, as requested in the motion to change, and which it appears was discussed in the case conference of November 16, 2021, when Justice W. MacPherson endorsed that such a motion be heard together with this motion. However, no such motion was brought. I agree that s. 30 assessments should not be ordered as a matter of routine. The applicant bears the onus of satisfying the court, on proper evidence, that an assessment will likely produce otherwise unavailable evidence as to the child’s best interest, that the costs are justified, and that the additional intrusiveness in the life of the child together with any delay is justified. I have received no evidence about the identity of a proposed assessor.
[41] As a result, there will be no order for a s. 30 report as requested, without prejudice to the applicant’s ability to bring a motion for that relief based on proper evidence.
Conclusion:
[42] In summary, the consent orders of May 22, 2019, and December 9, 2021, are not being adhered to as regards A’s contact with the respondent. I am not prepared to conclude that the non-compliance is the fault of the applicant such that enforcement by the imposition of further terms is warranted. Likewise, I am not convinced that, given her obvious anxiety disorder, it is in A’s best interest to make further orders as to compliance. Changing doctors, counsellors or therapists should occur, if necessary, on the consent of the parties. It may well be that a s. 30 assessment is warranted, but that matter should only be considered on motion supported by proper evidence. Finally, the parties should consider how A’s voice might be heard by the court, especially given that she will be at least 15 years of age if not older when the matter finally comes to court.
[43] This decision is not an endorsement of the conduct of the applicant or an indictment of the respondent’s desire to re-establish a healthy relationship between himself and A. Rather, it is reflective of the court’s inability, based on the content of untested affidavits, to draw the necessary conclusions about whether further judicial intervention as requested by the respondent will be in A’s best interests.
[44] The respondent’s motion is dismissed as is the applicant’s verbal request for a s. 30 assessment.
Costs:
[45] The parties are encouraged to resolve the issue of costs of the motion between themselves. If they are unable to do so, they may submit a Bill of Costs and make written submissions, consisting of not more than three pages in length according to the following timetable:
• The applicant is to serve her Bill of Costs and submissions by November 22, 2022;
• The respondent is to serve his Bill of Costs and submissions by December 6, 2022;
• The applicant is to serve her reply submissions, if any, by December 13, 2022;
• All submissions are to be filed with the court by December 16, 2022.
[46] If no submissions are received by the court by December 16, 2022 or any agreed extension, the matter of costs will be deemed to have been settled.
Reid J
Date: November 7, 2022