COURT FILE NO.: FS-14-3717

DATE: 2022/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.H.-B.

Applicant

– and –

D.H.

Respondent

Melissa Young, for the Applicant

Stephania Sikora, for the Respondent

Erin Fitzpatrick, for the children on behalf of the Office of the Children’s Lawyer

HEARD: December 8, 2022

REASONS FOR DECISION ON MOTION

Ellies R.S.J.

OVERVIEW

[1] This is a motion for a temporary parenting time order that began as a contempt motion. The contempt motion was brought by Mr. H. because he has not seen his daughter, E. (age 11), since May 2022, nor his son, B. (age 13), since September 2022. At my suggestion, the parties agreed to adjourn the contempt motion indefinitely in favour of this motion for a temporary parenting time order (see my endorsement of November 22, 2022).

BACKGROUND

[2] The parties married in 2008 and separated in 2013. The family law proceedings began in 2014. For reasons I need not fully set out here, the trial began in 2021 and will finish this week. The only parenting time order ever made in the proceedings was the temporary order of Valin J. made on July 15, 2015, in which he ordered that the children’s primary residence would be with Ms. H.-B. and that Mr. H. would have parenting time “on alternate weekends and on any other days he is not scheduled to work.”

[3] The parties have adopted various parenting time regimes since the 2015 order, depending upon Mr. H.’s work schedule. His current work schedule involves a five-week rotation which sees him working 12-hour shifts starting at 6 a.m. or 6 p.m. for as many as four days in a row. He also has the option of working three additional shifts in a row once during each five-week rotation. His schedule would allow him to have parenting time for as many as nine consecutive days once in each five-week rotation, without having to forego any shifts. The next nine-day stretch for Mr. H. begins on the morning of Monday, December 12, 2022.

[4] Prior to December 2021, Mr. H. was spending parenting time on a two-week rotation such that the children were with him overnight on Monday, Friday, Saturday, and Sunday nights during Week 1, and on Wednesday and Thursday nights during Week 2. However, in December 2021, just prior to Christmas, E. stopped going to visit Mr. H. because she believed she had been locked out of the house in which he was living with his girlfriend.

[5] Mr. H. was not home at the time E. tried to get into the house. He was at work. Nonetheless, he maintains that E. was not locked out of the house. He does admit, however, that he accused E. of lying to people about being locked out of the house afterwards and suggested that she not come for her next regularly scheduled visit with him. He also admits that neither E. nor B. liked his girlfriend, with whom he had left both children at the time.

[6] E. began visiting with Mr. H. again in May 2022, after he broke up with his girlfriend and moved out of her home. However, Mr. H.’s parenting time with E. was short-lived.

[7] On May 21, 2022, Mr. H. agreed to allow the children to be with Ms. H.-B. for her birthday, notwithstanding that it was during his parenting time. The mother was to return the children by 8:00 p.m. that day. However, at 8:15 p.m., Mr. H. received a phone call from E. on her mom’s cell phone, using the speaker system in her mother’s car. E. asked if she could spend the night with Ms. H.-B., which request Mr. H. denied. B. called Mr. H. about 20 minutes later, again from Ms. H.-B.’s cell phone. He told Mr. H. point-blank that they were not coming to his residence that night. An argument ensued in which both the parents and the children were involved.

[8] The children did not come over that night and E. has never returned since.

[9] B. continued to visit Mr. H. until September 26, 2022. On that date, another argument took place, this time also involving the maternal grandparents, and in public. The argument took place outside an arena after B.’s hockey practice. Mr. H. believed that B. was coming with him for an overnight visit after practice. However, as B. and Mr. H. left the arena, B. told his father that he had not brought clothes to stay over at his father’s home. September 26 was a Monday. The father asserts that it was Week 1, during which B. was to stay with him that night. The mother asserts that Mr. H. was to have parenting time on Wednesday and Thursday nights, instead, i.e., it was Week 2.

[10] The parties also disagree on the details of what happened on September 26. However, there is no dispute that a screaming match took place in the parking lot in which at least the parties and E. were involved; that Mr. H. opened the back door of Ms. H.-B.’s car to argue with E. and refused to close it; that Ms. H.-B. felt obliged to drive away with the back door of her vehicle open; that Mr. H. swore at Ms. H.-B.; that Mr. H. made a rude gesture to Ms. H.-B.'s parents; that Mr. H. stood in the way of the grandparents leaving in their own vehicle; and that the police were called to attend the scene after Mr. H. left.

[11] B. has not visited Mr. H. since his last parenting time a few days before the arena incident, on September 23, 2022.

[12] Mr. H. has been texting the children, but neither child is responding.

[13] Mr. H. seeks a new temporary parenting-time order that either specifies the current parenting regime or expands that regime to include all of his days off, including the nine-day stretch referred to earlier.

DISCUSSION

[14] The application in which this motion arises was started under both the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and the Children's Law Reform Act, R.S.O. 1990, c. C. 12, (the “CLRA”). Both statutes contain similar provisions governing the court’s power to make parenting orders. The relevant portions of s. 24 of the CLRA provide:

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.

(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.

(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;

(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;

(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;

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.

[15] One of the reasons that the trial has taken so long to finish is that, at the outset of the trial in 2021, I bifurcated the issues and made a second plea to the Office of the Children's Lawyer (the "OCL") to become involved. This time, the court's request was granted. Ms. Fitzpatrick was appointed to represent the children on August 11, 2021. On October 8, 2021, Carole Vaillancourt was appointed to assist Ms. Fitzpatrick as a clinician. According to Ms. Vaillancourt, the children no longer wish to see Mr. H.

[16] Mr. H. blames Ms. H.-B. for the fact that the children do not wish to see him. He submits that she is allowing the children too much discretion in deciding whether to visit him. I do not accept that. Ms. H.-B. has been faced with a difficult situation. The children do not want to visit Mr. H. because they are afraid of his outbursts and of being left alone.

[17] Ms. Fitzpatrick and Ms. Vaillancourt have now met with the children on eight occasions, beginning on November 16, 2021, and ending on November 25, 2022. According to the evidence of Ms. Vaillancourt, the children have consistently expressed their concerns about Mr. H.’s continued outbursts throughout those meetings. In the very first interview, B. told Ms. Vaillancourt and Ms. Fitzpatrick that his father was “very ‘loud’ when not pleased” and that he has tried to speak to his father about his loudness, but that it has not been helpful. Both children have expressed similar concerns in every interview since then.

[18] At Ms. H.-B.'s suggestion, both parents took the children to the movies recently. However, even though both parents were present, the children later confided to the clinician that they were worried because they did not know if and when their father would erupt.

[19] On Mr. H.’s behalf, Ms. Sikora submits that B. and E. are too young to let their wishes dictate the outcome of Mr. H.’s motion. I agree with that submission. As s. 24(3)(e) of the CLRA provides, the children's wishes are only one factor to be considered. However, they are an important factor in this case because their wishes are based on their fears. And their fears are both real and reasonable.

[20] Contrary to the submissions of Ms. Sikora on Mr. H.’s behalf, Mr. H.’s anger management issues have not been limited to one or two isolated incidents. Mr. H. admitted in an affidavit sworn on May 31, 2021, that “early on in the separation” while he was picking up the children from Ms. H.-B.’s place of employment, he called her a name unfit for repetition in front of the children. These types of outbursts have continued since then. In the same affidavit, Mr. H. admitted that in February 2021, he yelled at E. and called her a “bitch” (apparently quickly changing it to “pest”) when she had trouble with her homework. B. was so fearful for his sister that he recorded Mr. H. doing this and the Children's Aid Society became involved.

[21] In addition to his unpredictable outbursts, Mr. H. has also been leaving the children alone. He admitted in an affidavit sworn on November 12, 2022, that he was leaving B. alone beginning in June 2022 because of a change in his work schedule. However, this has been going on for longer than that. Mr. H. admitted in the May 2021 affidavit referred to earlier that this happened as early as September 2020. B. has told Ms. Fitzpatrick and Ms. Vaillancourt that he does not want to be left alone. Nor should he; he just turned 13. He was 11 in September 2020.

[22] In my view, Mr. H.’s unpredictable outbursts have made it such that forcing the children to continue with the parenting time regime as it existed before E. and B. stopped visiting him would pose a threat to their emotional and psychological well-being. As I said during the hearing of the motion, my hope is that one day the children will want to be with Mr. H. as much as they want to be with Ms. H.-B. I believe that Mr. H. is a loving, caring father and that it is in the children’s best interests to have maximum contact with him. But, in order to get to that point, I must first ensure that the children feel safe while they are with Mr. H. and, ultimately, that they will be safe with him.

[23] In the short term, I agree with Ms. Sikora that, rather than ordering that Mr. H.’s parenting time be exercised at the Supervised Access Centre, it should be exercised in a public place. The Supervised Access Centre is not conducive to re-integration. In choosing a public place, I believe that, as much as possible, the children should have a say. They should feel that they are being heard and have some measure of control.

[24] I also agree with Ms. Sikora that it would not be helpful to allow too much time to pass between visits. Too much time has already passed since E.’s last visit and I am concerned about alienation. My concerns are not so much with alienation caused by Ms. H.-B. I accept that she has encouraged the children to spend time with their father, although I do not approve of the way she put the children on the spot on her birthday in May. My concerns relate more to the passage of time. It cannot be said that absence always makes the heart grow fonder.

[25] However, the Christmas period poses a problem. While it is possible that some public places will be open on Christmas Day, we do not know which ones and, even if there is something open, it is hard to imagine that the visit will be very fulfilling for anyone. For that reason, I believe that the children should visit with Mr. H. at his new home. Ideally, I would like someone there to supervise. However, I was advised during argument that the OCL has no one available to do that. My hope is that with a couple of publicly-exercised visits under their belt by Christmas Day, the children will feel safe enough for an unsupervised visit with Mr. H. To help them feel that way, though, I believe the visit should be briefer than I would otherwise like it to be.

[26] To ensure that the children will be safe in both the short and the long term, I believe that counselling is necessary. To help the children deal with Mr. H.'s behaviour, Ms. H.-B. retained the services of Kathy Luoma, a counsellor. Ms. H.-B. did not consult Mr. H. about retaining Ms. Luoma, as a result of which he only learned about her involvement when her name appeared on a witness list for trial. Ms. Luoma's clinical notes and records were disclosed as part of the pre-trial disclosure process.

[27] The children continue to see Ms. Luoma, but Mr. H. is distrustful of her and would like the children to see a different counsellor. However, the children have developed a therapeutic relationship with Ms. Luoma that I believe should be embraced. I do not accept the submission that Mr. H. is justified in his view of Ms. Luoma because she accepted the children as clients without consulting him. As I said during argument, until a court gives one parent sole decision-making authority, they both have it. Ms. Luoma did nothing wrong, in my view, by agreeing to provide her services based only on Ms. H.-B.'s request.

[28] For their part, the children are concerned about Mr. H. being provided with Ms. Luoma's clinical notes and records of their discussions. The possibility of such disclosure threatens to interfere with their counselling. For that reason, I believe that any further such disclosure should be made first to the court, if at all.

[29] Mr. H. is willing to undergo counselling for anger management. I understand that he has received counselling in the past through his employer. It is not clear to me, however, whether that counselling included counselling for anger management. Therefore, I would require Mr. H. to provide the court with some form of proof that he is obtaining anger management counselling and of the progress being made.

[30] I believe that re-integration counselling of some form will also be necessary. I am told that such services are available in our area, but no one has yet been retained. The children have told Ms. Vaillancourt that they do not wish to participate with Mr. H. in counselling. Again, my hope is that, once they begin to feel safe, they will change their minds and I will not be forced to send them against their will.

[31] Finally, I want the children to know that I am watching out for them. For that reason, I believe that the resumption of parenting time for Mr. H. should be regularly monitored by the court and varied only according to the circumstances as they exist from time-to-time.

CONCLUSION

[32] For these reasons, the current parenting-time regime is suspended and will be replaced with the following one:

(1) Mr. H. will be allowed parenting time with both children, to be exercised either at dinner during the school week or at lunch or dinner during the weekend, at a restaurant in the North Bay area.

(2) Mr. H. will be allowed to exercise such parenting time on two occasions between December 12 and December 20, inclusive, at least three days apart, for no longer than three hours per meal, exclusive of travel time.

(3) E. will choose the first restaurant and B. will chose the second.

(4) Ms. H.-B. will drive the children to the parenting time visits and Mr. H. will return them.

(5) Mr. H. will have parenting time on either Christmas Day or Boxing Day, at Ms. H.-B.'s option, for a period of no longer than five hours, exclusive of travel time, to be exercised at his home. At no time is either child to be left alone or alone with Mr. H.'s girlfriend.

(6) Between January 2 and January 24, 2023, Mr. H. will have parenting time once each week and twice during the nine-day stretch, to be exercised either at a restaurant or some other place to which the public is freely admitted, for a period of no longer than three hours each time.

(7) The children will be provided with at least one cell phone by Ms. H.-B. during their parenting time with Mr. H. and will be permitted by Mr. H. to call their mother if they ask to do so.

(8) This parenting-time schedule may be varied by the parties, on consent, providing the consent is in writing.

(9) The motion shall be adjourned to be addressed again via Zoom during the week of January 23, 2023, at a time to be arranged through the office of the trial coordinator. The parties, as well as the OCL, will be permitted to file affidavit materials in advance of the motion, limited to five-typewritten pages, as follows:

(a) By Mr. H., by January 13, 2023;

(b) By Ms. H.-B., by January 18, 2023;

(c) Any reply by Mr. H., by January 20, 2023.

Neither party will attach any text or email messages passing between the parents or the children to any affidavit.

(10) The children will be permitted to continue their counselling with Kathy Luoma, Ms. Luoma is not to disclose her clinical notes and records to either parent without the permission of the court. Instead, she will provide the court with a one or two-page report on or before January 23, 2023, with any recommendations she believes would be helpful in re-uniting the children with Mr. H. She should bear in mind that the report will be disclosed to the parties and the children unless she believes that such disclosure will cause the children harm, in which case she should seal the report and file it along with an affidavit setting out the reasons for her belief.

(11) Mr. H. will seek and obtain counselling, either through his employer or otherwise, for anger management. He will provide the court with proof that he has obtained and is participating in such counselling by filing a one or two-page report from his counsellor with the court on or before January 23, 2023.

(12) The parties will each provide the court with the name of a professionally-qualified reintegration therapist, including the cost of such therapy, on or before January 23, 2023.

COSTS

[33] I am not inclined to award costs in this situation. However, if either party wishes to pursue the issue, I would prefer to wait until the motion has been disposed of entirely.

M.G. Ellies R.S.J.

Released: December 13, 2022

COURT FILE NO.: FS-14-3717

DATE: 2022/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S. H.-B.

Applicant

– and –

D. H.

Respondent

REASONS FOR DECISION ON MOTION

M.G. Ellies R.S.J.

Released: December 13, 2022