Court File and Parties
COURT FILE NO.: FS-20-43418 DATE: 2023 05 12 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.L., Applicant AND: B.N., Respondent
BEFORE: Conlan J.
COUNSEL: Ms. A. Stoner, for the Applicant Ms. C. Marchetti, for the Respondent
HEARD: May 10, 2023
Endorsement on Motions
I. Introduction
[1] On May 10, 2023, in Milton, this Court heard two motions, one by each side. They ought not to have been permitted to proceed on a regular motions day, however, I relented and heard them because it was in the interests of justice to do so.
[2] In his Amended Notice of Motion, the Respondent father, B.N., asks for an order that he have parenting time with the two children (11 and 9 years of age) as follows: (i) this weekend, 9:30 a.m. to 8:00 p.m. on Saturday and 10:00 a.m. to 8:00 p.m. on Sunday, (ii) next week, after school until 8:00 p.m. on Wednesday, Thursday, and Friday, and (iii) thereafter, on a 2-2-5-5 schedule.
[3] The father also asks for make-up time for missed parenting time, an order that the parties share the expense of reunification therapy 50-50, and an order that the Applicant mother, A.L., shall not record the children’s telephone calls with the father and shall not facilitate or encourage the children to record those telephone calls themselves.
[4] In her Notice of Motion, the mother asks for an order that the father’s parenting time take place in public, and be professionally supervised, and be limited to May 12th for two hours, May 13th for three hours, three hours next Wednesday, three hours next Friday, and so on.
[5] The mother also asks for an order that the cost of the reunification therapy shall be split 75% to be paid by the father and 25% by the mother, after utilizing the father’s extended benefits plan to cover as much as possible of the cost.
II. The Recording of Telephone Calls
[6] The Court agrees with the father’s position. It is ordered that the mother shall not record the children’s telephone calls with the father and shall not facilitate or encourage the children to record those telephone calls themselves.
[7] This issue is an easy one. At page 90 of his very thorough and very thoughtful section 30 assessment report dated March 23, 2022, Mr. Jared Norton expressly recommended that “the children’s communication with the non-resident parent, be it by phone or video, not be recorded by the resident parent”.
[8] That clear recommendation is not surprising given what judges have said, repeatedly, on this issue. The comments of Justice Sherr in Hameed v. Hameed, 2006 ONCJ 274, at paragraph 11, are just one example. Such recordings, especially where surreptitious (as they were here for some time, until the father became aware of it), should be strongly discouraged. The recording process is often destructive. It is often selfish. Even worse here is that the children have been implicated in the recording scheme; that is obvious when one watches the videos themselves, as I have done.
[9] Whatever probative value the past recordings may have, and this Court acknowledges that the recordings do corroborate the mother’s concerns that the father speaks, at times, inappropriately to the children, they serve no legitimate purpose going forward.
[10] The children have a very close relationship with their mother, and their ages are such that they will undoubtedly report to the mother anything that happens during the telephone calls that they are unhappy with. That evidence can be adduced at trial without the need for any voir dire if it is tendered simply for the fact that the children are uncomfortable with the calls. If the mother wishes to tender that evidence for its truth in terms of what the father is doing or saying during the calls, then the necessity of a voir dire remains a much better option than permitting these recordings to continue.
[11] In short, the sound public policy against these recordings, even non-surreptitious ones, outweighs the limited probative value of any future recordings that may be made. Sordi v. Sordi, 2011 ONCA 665, at paragraph 12.
III. The Cost of Reunification Therapy
[12] The Court agrees with the father’s position. This Court orders that, after exhausting all potential coverage under the father’s benefits, the cost of the reunification therapy shall be divided equally between the parents.
[13] Everyone agrees that the said therapy is in the best interests of the children. Everyone agrees that the said therapy is aimed at normalizing the strained relationship between the children and their father, particularly since the incident that occurred on March 13, 2023 – the altercation between the father and the daughter, which altercation led to the family physician making a report to child welfare and the subsequent involvement of both the child protection agency and the police, all of which involvement has now ceased without any measures taken by the agency and without any charge(s) being laid by the police.
[14] The mother wants to be cautious, and that is fine, however, she cannot be trusted, in my opinion, to working towards achieving the maximum contact principle without her heavy investment in the success of the reunification therapy. That is why she should be forced to pay for half of it.
[15] The proof of her over-cautiousness is evident in what she proposes now for parenting time between the father and the children – a mere few hours here and there, all in public settings, all professionally supervised, and all subject to the views of others.
IV. Make-up Parenting Time
[16] The father’s request is denied. It is time to focus on the future. It is too difficult for this Court to determine how much missed parenting time is owed, or when it should be made-up.
V. Supervision, Public Setting, Schedule of Parenting Time
[17] The Court agrees with the father on supervision. Supervised parenting time ought to be ordered in exceptional circumstances, where the best interests of the children require it.
[18] The evidence does not persuade me that supervision is required here. It was not recommended by Mr. Norton. Nothing that has transpired since March 2022, including the incident in March of this year, would serve to cause this Court to second-guess Mr. Norton’s recommendations about parenting.
[19] The Court agrees with the father on the issue of whether his parenting time must take place in public settings, for similar reasons as expressed immediately above.
[20] There is no order for supervision. There is no order for public visits only.
[21] On the schedule going forward, however, the Court thinks that it should be something that is more gradual than what the father proposes. Something happened on March 13th. Reunification therapy is in its infancy. In the best interests of the children, the situation cannot be rushed.
[22] Thus, the Court orders as follows – the father shall have parenting time with the children, (i) this weekend, 9:30 a.m. to 8:00 p.m. on Saturday, May 13th, (ii) next week, after school until 8:00 p.m. on Wednesday, Thursday, and Friday, (iii) thereafter, until June 18, 2023, a minimum of twenty-four (24) hours per week, every week, but excluding overnights, on a schedule to be arranged by the parties, and (iv) after June 18, 2023, on a schedule to be arranged by the parties and with input from the reunification therapist.
[23] The Court is not ordering parenting time between the father and the children this Sunday because of Mother’s Day.
[24] With regard to clause (iv) above, the Court will settle the schedule if the parties cannot agree. They should be able to agree. The clear intention is to move towards a shared parenting regime. If the Court’s assistance is necessary, that can be arranged at the request of either side, on notice to the other, and with a relatively brief Zoom appearance. Nothing needs to be filed except a brief outline of what that parent proposes for the schedule, and why (the “why” must be in the form of an affidavit if it contains evidence for the Court to consider), and, if available, something in writing from the reunification therapist as to how the therapy is progressing.
VI. Costs of the Motions
[25] The father’s motion is granted in part. The mother’s motion is dismissed.
[26] Anything in either motion that is not expressly dealt with herein should be considered as having been dismissed.
[27] If costs cannot be resolved, I will accept written submissions, each limited to two pages in length excluding attachments, with the father’s due within thirty (30) calendar days after today, and the mother’s due within fifteen (15) calendar days after her counsel’s receipt of the father’s submissions. No reply is permitted.
Conlan J. Date: May 12, 2023