Court File and Parties

Court File No.: FS-14-3717 Date: 2023/03/24 Superior Court of Justice - Ontario

Re: S. H.-B., Applicant And: D. H., Respondent

Before: Ellies R.S.J.

Counsel: M. Young, for the Applicant S. Sikora, for the Respondent E. Fitzpatrick, for the children

Heard: March 14, 2023

Endorsement

[1] The motion for a temporary parenting time order came before me again, as per my endorsement of January 27, 2023. For the reasons expressed in that endorsement, I refused to make an order that Mr. H. have parenting time only in accordance with the children’s wishes. Instead, I specified that parenting time take place on certain specific occasions between January 30 and February 18, 2023, among other things.

[2] Unfortunately, the parenting time did not occur as I had ordered. The children refused to see their father on every occasion. According to the clinician and to their mother, they continue to experience anxiety at the prospect of spending time with their father and to express their desire not to do so.

[3] On behalf of the children, Ms. Fitzpatrick makes three principal submissions in support of her position that a temporary order should be made that Mr. H. is only to have parenting time in accordance with her client's wishes.

[4] First, she submits that I erred in law when I ordered on December 1, 2022, that Mr. H. have any parenting time with the children. She contends that I gave paramountcy to the "maximum contact" principal referred to in Gordon v. Goertz, [1996] 2 S.C.R. 27, and that, in doing so, I failed to give primary consideration to the children’s physical, emotional, and psychological well-being, as required by s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (the "CLRA") and s. 16(2) of the Divorce Act, R.S.C. 1985, c. 3 (the "DA").

[5] Next, Ms. Fitzpatrick submits that, by virtue of the orders I made on December 13, 2022, and January 27, 2023, I have demonstrated a "predisposition" towards awarding Mr. H. parenting time that may prevent me from keeping an open mind about that issue when the trial finally resumes in this case in June.

[6] Finally, Ms. Fitzpatrick submits that, by continually bringing this motion back before me, I am working a procedural unfairness upon the parties. She submits that, as a result of the procedure I have adopted, the parties cannot know the case they have to meet each time the motion returns, as a result of which they have not been able to make meaningful submissions with respect to such things as my order that the children's counsellor, Ms. Luoma, provide me with information or that the reunification therapist, Ms. Chayka, become involved if possible.

[7] On behalf of Ms. H-B., Ms. Young adopts the same position and relies on Ms. Fitzpatrick's submissions.

[8] For the reasons that follow, I am unable to accept any of these submissions.

The Children's Emotional and Psychological Well-being

[9] On behalf of her clients, Ms. Fitzpatrick submits:

In no other context would a reasonable person think it okay to consistently promote having a close relationship with a person who has a history of compromising one's emotional and psychological safety.

[10] With respect, the making of this submission demonstrates a failure to grasp two, and possibly three, crucial facts that form the context of this case.

[11] The first is that we are dealing with children, not adults. As I have tried, (unsuccessfully, it would appear) to explain, the views and preferences of children are not treated the same way in family proceedings as those of adults. As s. 24(3)(e) of the CLRA makes clear, the wishes and preferences of children are but one factor to consider and will vary in importance with the age of the children. These children are 11 and 13 years of age. Contrary to the submissions of counsel, there are circumstances in which reasonable people, indeed I would say responsible people, would require that children have contact with adults who make them anxious. Medical professionals administering necessary but unpleasant treatment come to mind. The Hospital for Sick Children is full of them. Ms. Fitzpatrick's submission ignores completely any consideration of the value of the relationship, which leads me to a discussion of the second crucial fact forming part of the context in this case.

[12] We are not dealing with the relationship between two children and a stranger in this case. Mr. H. is the father of these children. As I will explain, unlike the relationships between strangers, there is a statutory presumption of continuing contact between children and their separated parents.

[13] Ms. Fitzpatrick relies on the decision of the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, in support of her submission that there is no presumption that Mr. H. should have contact. In Barendreght, at paras. 34 and 35, the court wrote:

Although Gordon placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are the sole consideration in relocation cases, and “if other factors show that it would not be in the child’s best interests, the court can and should restrict contact”: Gordon, at para. 24; see also para. 49. But in the years since Gordon, some courts have interpreted what is known as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equal parenting time, or regular access: Folahan v. Folahan, 2013 ONSC 2966, at para. 14; Slade v. Slade, 2002 YKSC 40, at para. 10; see also F. Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the Canadian Courts” (2011), 49 Osgoode Hall L.J. 277, at pp. 278 and 296-98. Indeed, the term “maximum contact principle” seems to imply that as much contact with both parents as possible will necessarily be in the best interests of the child.

These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”. [Emphasis in original.]

[14] All of this is true. However, the parenting time factor found in ss. 24(6) of the CLRA and s. 16(6) of the DA reflects a presumption that continuing contact with a child's parent may be in that child's best interests. That is the premise upon which a court is empowered to order that a parent have parenting time, even when a child does not want it. This same power does not exist in the law when it comes to the strangers contemplated in Ms. Fitzpatrick's rhetoric. This parenting time presumption requires that I consider not only whether the children are anxious about spending time with their father, but also why.

[15] This is what I have done in my previous decisions. After setting out the relevant provisions of s. 24 of the CLRA in my reasons of December 13, I wrote, at para. 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.

[16] It is clear from these reasons and from the terms of my orders that I believe that the children should have maximum contact with Mr. H. consistent with their best interests. If it were otherwise, I would not have restricted the time and dictated the circumstances of Mr. H.'s parenting time. I made no legal error in ordering parenting time in this case. If I made any error, it may have been a factual one, as I will now explain.

[17] To ensure that the children both felt safe and were safe, I required that parenting time be exercised at first in public settings and only for brief periods of time and that Mr. H. undergo anger management counselling. In this way, I reduced substantially, and obviously, the risk of any outbursts by Mr. H. As Ms. Fitzpatrick concedes, there is no evidence of any outbursts occurring since September of last year. And yet, the evidence shows that, rather than gradually becoming more comfortable with the prospect of spending time with Mr. H., the children now refuse to see him at all. This does not accord with common sense.

[18] I agree that Mr. H. again acted foolishly in appearing to record the children refusing to spend time with him. If it occurred in the way alleged by Ms. H.-B. and the children, then Mr. H. acted even more foolishly by temporarily blocking Ms. H.-B's vehicle from leaving on one occasion when she came to pick up the children. However, this foolish behaviour on Mr. H.'s part does not fully explain the children's attitude because they were refusing to see him even before it occurred. Something else is at work here. There is possibly a third fact colouring the context of this case.

[19] In my deliberations recently, I reviewed all of the affidavit evidence submitted on this motion. In doing so, I realized for the first time something that had escaped me earlier. Ms. H.-B. swore an affidavit on January 18, 2023, in advance of the return of this motion before me on January 27. In her January 18 affidavit, Ms. H.-B. set out in disturbing detail what had occurred during the children's visits with their father following my order of December 13, 2022. For example, her evidence included the following regarding the December 16 parenting time at Burger World:

They were not fond of the idea of their grandparents attending the dinner, because when we were in Timmins for hockey in October, their grandfather, Walter, had made a comment to B., "are you not going to hug your dad?" B. felt obligated, even though, he did not want to as to not make a scene in the parking lot of another hockey arena. He did not like how this had put pressure on him. Therefore, he was uneasy about dinner with his grandparents in attendance, and whether or not, something like this would occur again. In the end, both B. and E. both stated that it was nice to have their grandparents there as they were the ones that carried the conversation asking them questions about school, sports etc. B. said that he was trying to speak to his father, but he had asked him to repeat himself, because he was on his phone. Both B. and E. said that they felt sad for their Nana in the way that their father speaks to her. The Respondent had asked B. and E., if they wanted to go walk around the mall and they said "no". He then told them that they had a minimum of three hours, and they told him that it was a maximum of three hours and they wanted to go home.

[20] How does Ms. H.-B. know all of this? Are there "debriefings" going on after each visit? If so, why?

[21] I also noticed something else in my recent review of the evidence. According to Ms. Vaillancourt's affidavit of January 23, 2023, when she and Ms. Fitzpatrick met with the children on January 9, E. began by giving them copies of notes she had typed out about the first few visits the children had with their father after my December 13 order. Perhaps Ms. H.-B. got her information about the December 16 visit from these notes, but I am still left wondering why an 11-year-old is preparing typewritten notes about the time she spends with her father. No explanation is offered in Ms. Vaillancourt's affidavit. Indeed, neither she nor Ms. Fitzpatrick appear to have been in the slightest bit curious about it. But I am. And I am beginning to question the cause of the children's anxiety. I am beginning to wonder if it is not, at least in part, due to the attitude of Ms. H.-B. about the "developing autonomy" of the children, as Ms. Fitzpatrick called it in her submissions.

Alleged Predisposition

[22] As I have explained, there is a presumption that there should be contact between children and their parents. Of course, as Ms. Fitzpatrick submits, that presumption can be displaced where to do so is in the best interests of the children and, as she also correctly submitted, when considering those interests, the physical, emotional, and psychological safety and well-being of the children are paramount. What I have tried to explain, however, is that, even when I believed that Mr. H.'s outbursts were entirely responsible for the children's anxiety, I also believed it was possible to maintain contact with him and keep the children safe. As I wrote in my reasons of January 27, at para. 4, my task in this case is to balance the presumption of continued contact against the risk of harm that might come to the children because of that contact. The fact that I fashioned an order that attempted to strike the right balance is not evidence of a predisposition.

[23] If Ms. Fitzpatrick feels strongly enough on behalf of her clients that I am predisposed to making decisions that are not based solely on the law and the evidence, or that there is a reasonable apprehension of that possibility, she is free to bring a recusal motion on behalf of her clients. Unless and until such a motion is brought and succeeds, however, I will remain involved in this motion for temporary parenting time.

Procedural Fairness

[24] In my view, Ms. Fitzpatrick's submissions about my procedural errors have no more merit than her submissions about my alleged legal error and bias in favour of contact.

[25] Ms. Fitzpatrick complains that I am fashioning remedies and making orders without notice to the parties. However, none of the orders I have made can come as a surprise to the parties in the context of this case. It could not come as a surprise, for example, that I might seek information from Ms. Luoma or that I might order the parties to explore reunification therapy. Nor have anyone's interests been prejudiced by any order that I have made. No order was made compelling disclosure by Ms. Luoma of otherwise confidential information and no order was made imposing reunification therapy on anyone. I asked only for Ms. Luoma's suggestions, if she cared to give them, and only that Ms. Chayka's ability to become involved be ascertained.

[26] More importantly, adopting Ms. Fitzpatrick's submission that no further parenting time be ordered (except as desired by the children) would work an injustice to Mr. H. It may be harder for him to overcome the weight of the status quo at trial. If a "as desired only" final order is made at trial, he will thereafter be required to demonstrate a change in circumstances if he seeks to vary the order. That would put him in the unenviable position of having to demonstrate, for example, that reunification therapy will likely result in a positive change in his relationship with the children. In my view, everything possible should be attempted before a final order is made about parenting time, and not after.

[27] For that reason, this motion will be adjourned from time-to-time until I am satisfied that I have exhausted every resource at my disposal to advance the best interests of the children.

Conclusion

[28] For the reasons expressed above, I do not accept any of Ms. Fitzpatrick's submissions in support of a child-dictated parenting time order until trial.

[29] Nonetheless, I am faced with some difficult choices. At present, I believe the best chance to save the children's relationship with Mr. H. is reunification therapy and not more failed parenting time orders. While I also believe it would be best to maintain contact between Mr. H. and the children until that option can be explored, my options are limited. I have given serious consideration to ordering that parenting time take place at the Supervised Access Centre. As I wrote in an earlier endorsement, however, that environment is not very conducive to reintegration. This is especially true for children of the ages involved here.

[30] Given the limited options, I have reluctantly concluded that no further parenting order should be made at the moment. However, I want it clearly understood that this is a temporary, without prejudice, order and that I will not require that a change of circumstances be demonstrated to vary it.

[31] A date for the continuation of the motion is to be set through the office of the trial coordinator. I would like an update as to the availability of Ms. Chayka or another counsellor to help with reunification when the motion returns. If any party has any suggestions to make as to how to resume parenting time with Mr. H. other than at the Supervised Access Centre, I would ask that they be put in an affidavit or a notice of motion. The parties are free to bring any other motion they may wish to bring when this one is addressed again.

[32] Regardless of whether it is filed in connection with this or any other motion, affidavit evidence will be limited to 8 typewritten pages. The font on the page is not to be reduced below 12 points and no attachments will be considered by the court unless the importance of the attachment is made clear in the body of the affidavit. Responding affidavits must identify the allegation to which the response is directed, and not just the number of the paragraph in which it is contained.

M.G. Ellies R.S.J. Date: March 24, 2023