Court File and Parties

COURT FILE NO.: FS-13-0047-02 DATE: 2023-08-28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Taija Hall (Wright), Applicant L. Conti, for the Applicant

- and -

Robert Wright, Respondent U. Patola, for the Respondent M. Petryshyn, for the Children’s Lawyer

HEARD: August 3, 2023, at Thunder Bay, Ontario

Mr. Justice J.S. Fregeau

Reasons on Summary Judgment Motion

THE BACKGROUND TO THE MOTION

[1] The Applicant, Taija Hall, (the “mother”) and the Respondent, Robert Wright, (the “father”) are the separated parents of three teenage children.

[2] Pursuant to a consent order dated August 26, 2014, (the “2014 order”) at which time the parties both resided in Thunder Bay, the mother was granted sole custody and day-to-day care and control of the children with the father having access alternate weekends and specified access on holidays. The father was not ordered to pay child support because he was not employed at the time.

[3] A second consent order dated October 22, 2018, (the “2018 order”) varied the father’s parenting time with the children because the mother had relocated from Thunder Bay to Dryden with the children. The 2018 order also required the father to pay child support to the mother for the three children in the amount of $604 per month, beginning December 1, 2018, based on his estimated income for 2018 being $29,120. The 2018 order then reduced the father’s child support obligation by $200 per month on the understanding that the father would be travelling from Thunder Bay to Dryden to exercise parenting time.

[4] Finally, a temporary order dated April 20, 2023, (the “2023 order”) fixed the father’s child support arrears at $19,183 as of March 31, 2023.

THE PARTIES’ MOTIONS TO CHANGE

[5] In January 2022, the father brought a Motion to Change seeking to vary the 2014 and 2018 orders from the mother having “sole custody and day-to-day care and control” of the children to the parties having equal parenting time on an alternating weekly basis with the primary residence of the children being in Thunder Bay. The father’s Motion to Change further requests that his child support obligation, as set out in the 2018 order, be varied to reflect equally shared parenting time, the mother’s income being “TBD” and his current income being $41,048.

[6] The mother filed a Response to Motion to Change in March 2022, seeking a dismissal of all variations sought by the father. In her response, the mother also requests variations to the existing orders as follows:

1. Varying the father’s parenting time, as currently set out in the 2018 order, to “reasonable supervised parenting time…based on the children’s views and preferences”; and

2. Varying the father’s child support obligation, as established in the 2018 order, based on updated income information, and deleting the term which provides the father with a $200 per month reduction in child support.

[7] Finally, in her response, the mother sought an order requesting the involvement of the Office of the Children’s Lawyer (the “OCL”).

THE MOTION BEFORE THE COURT

[8] The mother has now brought a motion for summary judgment pursuant to Rule 16 of the Family Law Rules (the “FLR’s”) requesting a Final Order deleting paragraphs 2(a), 3(a), (b) and (c) of the 2018 order (pertaining to the father’s parenting time and child support obligation) and replacing those provisions with the following:

1. A Final Order stating that the father’s parenting time with the children be based on their views and preferences and at their request;

2. A Final Order requiring the father to pay to the mother child support for the three children in the amount of $212 per month based on his annual ODSP income of $15,696 commencing April 1, 2023, and on the first of each month thereafter and requiring the father to immediately disclose any change in his income or employment status to the mother;

3. An Order making the 2023 Temporary Order final;

4. An Order prohibiting the father from initiating future court proceedings requesting parenting time without leave of the court; and

5. Costs on a substantial basis.

[9] On this summary judgment motion, the father does not oppose the changes sought by the mother in relation to his ongoing child support obligation and the requirement that he disclose to the mother any change in his income/employment situation. The father also does not oppose the request that the 2023 temporary order be made final.

[10] Given the father’s position on these issues, a Final Order shall issue as requested by the mother in paragraphs 1(a), (i), (ii) and 1(b) of the mother’s Notice of Motion, dated July 14, 2023.

[11] The remaining issues to be addressed on this summary judgment motion are:

1. The mother’s request that the 2018 order be changed to restrict the father’s parenting time to parenting time based on the children’s views and preferences and only at their request;

2. The mother’s request that the father not be able to commence further court proceedings requesting parenting time with the children without leave of the court; and

3. Costs.

FACTUAL BACKGROUND

[12] The mother and father started living together in 2005, married on July 10, 2009, and separated on February 1, 2012. The parties are the parents of three children, namely Jayden Wright, born June 6, 2007, (16 years old), Saiden Wright, born May 25, 2008, (15 years old), and Tekira Wright, born October 20, 2009, (13 years old).

[13] In August 2014, the mother moved with the children from Thunder Bay to Dryden to pursue further education. The mother and the children moved back to Thunder Bay in March 2020 as the mother had completed her education and had job opportunities in Thunder Bay. The mother has a Native and Child Family Services Worker diploma from Confederation College and currently works full-time at the Lakehead Public School Board as a Student Support Professional. The mother is also employed part-time as an addiction support worker.

[14] The mother alleges that during the period when she resided in Dryden with the children (2014 – 2020) the father travelled to Dryden to see the children only once, in June 2015 for Tekira’s Kindergarten graduation.

[15] The father deposes that he tried to exercise parenting time with the children when they resided in Dryden but that the distance made it difficult, and the mother frustrated his parenting time.

[16] The mother deposes that the father also exercised very limited parenting time after she and the children moved back to Thunder Bay in March 2020, despite her efforts to initiate visits. The father alleges that he tried to maintain parenting time after the mother and children returned to Thunder Bay but that the mother continued to be obstructive. The father further deposes that the mother terminated his parenting time in the summer of 2021 and that he has only seen the children since that time if he bumps into them in the community. The father alleges that the mother has engaged in parental alienation.

[17] On April 22, 2022, Fitzpatrick J. requested that the OCL complete a Voice of the Child Report (“VCR”) addressing the children’s views and preferences with respect to parenting time with the father. On May 30, 2022, the case was assigned to Janet Lang, Clinician. Ms. Lang delivered the VCR on September 1, 2022.

[18] The three children were interviewed on two separate occasions, August 5 and 26, 2022. They were aware that the reason for the interviews was to determine their wishes with respect to seeing their father. Ms. Lang reports that Jayden and Saiden were “pleasant and cordial” during the first interview, as was Tekira. However, Tekira was “abrupt and appeared angry and/or distressed” during the second interview, according to Ms. Lang.

[19] In the first interview, Jayden told Ms. Lang that he and his siblings did not have much contact with their father when they lived in Dryden but that he had seen his father on weekends, supervised by the father’s girlfriend, after they returned to Thunder Bay and until approximately the end of 2021 when his mother stopped the visits. Jayden told Ms. Lang that his mother had stopped the visits because she did not trust either the father or his girlfriend.

[20] In the second interview, Jayden advised Ms. Lang that he has no contact with his father and that they do not communicate in any way. Jayden further told Ms. Lang that if and when his father calls their home, he talks only to Tekira, that there is nothing that his father could do to make the situation at his home better and that he did not want to see his father or have any contact or communication with him.

[21] Saiden told Ms. Lang that he recalled seeing his father twice since the family returned to Thunder Bay in March of 2020. Saiden advised Ms. Lang that he did not like his father, that he knew his father had “cheated” on his mother prior to separation and that his father always had a different girlfriend. Saiden further told Ms. Lang that he had not received any special occasion gifts from his father since 2020, that he felt his father did not care about him and believed that his father did not know when his birthday was.

[22] Saiden told Ms. Lang that he does not currently have any contact or communication with his father, that he does not want to have any contact or communication with him, that he does not want to go to his father’s home to visit with him and that if a court ordered that he do so he would refuse.

[23] In the first interview, Tekira recalled having seen her father the first year that the family had lived in Dryden and that direct contact ended about one year before the family returned to Thunder Bay. According to what Tekira told Ms. Lang, it was her father’s girlfriend who was responsible for ensuring that her father maintained contact with her and her brothers and that when they broke up her father stopped calling.

[24] In the first interview, Tekira told Ms. Lang that her father, in a telephone conversation with her mother, had accused her of lying when she disclosed that her paternal grandfather had sexually abused her.

[25] In the second interview, Tekira told Ms. Lang that her father was “an idiot”, that he ignored her and did not answer her messages. She further advised Ms. Lang that she did not want to have any type of contact with her father and that there was nothing that could be done to change her mind about the issue.

[26] In summarizing her VCR, Ms. Lang stated that Jayden and Saiden both “clearly and consistently indicated in both interviews that they did not wish to have any contact with their father at his home, through telephone calls, text messages or emails”. Ms. Lang further concluded that Tekira, in her first interview, expressed a plan for re-establishing contact with her father but that in the second interview “she had reconsidered what she had previously said and now did not want to have any type of contact with her father”.

[27] The OCL appointed Martha Petryshyn to represent the children in this case. Ms. Petryshyn, assisted by Darlene Niemi, registered social worker with the OCL, requested a meeting with all three children in June 2023. Jayden declined the invitation to meet with Ms. Petryshyn and Ms. Niemi.

[28] Ms. Petryshyn and Ms. Niemi met with Saiden and Tekira, together by Zoom on June 9, 2023, as this is how the children were most comfortable in meeting. Ms. Niemi has summarized her observations in an affidavit dated July 26, 2023.

[29] Saiden told Ms. Petryshyn and Ms. Niemi that he did not see his father for about 10 years after his parents separated and that he had last visited with his father on Father’s Day 2021, and that this visit did not go well. Saiden further advised that he had seen his father walk past their house with his girlfriend in the weeks prior to the interview, that his father tried to speak with him but that he does not want to speak to his father because his father “has never been a good dad”.

[30] At the end of the interview, Saiden stated to Ms. Petryshyn and Ms. Niemi, “just to be clear, I don’t ever want to see him again”.

[31] Tekira advised Ms. Petryshyn and Ms. Niemi that she has not wanted to see her father since the Father’s Day visit in 2021, that she never wants to see him again and that she wants a restraining order.

THE POSITION OF THE MOTHER

[32] The mother submits that this is an appropriate case for summary judgment because any dispute on the material facts can be resolved on the evidentiary record before the court on this motion.

[33] The mother submits that it is not in dispute that the father has not had any parenting time with the children for over two years. The only issue in dispute, according to the mother, is the reason for that absence of contact. The father alleges that the mother has alienated the children from him. The mother contends that there is no evidence to support this allegation and that there is ample evidence to support her position, namely that contact between the father and children ceased due to the wishes of the children resulting from the actions or inaction of the father, independent of any alleged influence from the mother. The mother further submits that her position is buttressed by the VCR and the evidence of Darlene Niemi, OCL clinician.

[34] The mother submits that this is an appropriate case for summary judgment because the father’s Motion to Change, in which he seeks equally shared parenting time, has no chance of success. The mother further submits that there is no genuine issue requiring a trial on the relief she has requested, that being parenting time for the father only in accordance with the children’s wishes, because there is no realistic possibility of an outcome other than that, based on the record before the court.

[35] The mother submits that the record as to the views and preferences of the children is extensive, credible, reliable and entitled to significant weight, given that it includes the evidence of two experienced OCL clinicians, each of whom have deposed that the children have clearly and consistently expressed their wishes as to not wanting to have contact with their father. The mother further submits that deference should be given to the clearly expressed views of these teenage children due to their respective ages.

THE POSITION OF THE FATHER

[36] The father submits that the mother has obstructed and restricted his attempts to schedule parenting time with the children. The father contends that the mother has done so to the extent that she has engaged in parental alienation. The father suggests this issue requires a trial in which cross-examinations on the affidavits will allow both parties to challenge the credibility of the other as to material facts.

THE POSITION OF THE OCL

[37] The Children’s Lawyer noted that the children are 16, 15 and almost 14 years of age. The Children’s Lawyer submits that the father’s request to vary the longstanding, existing status quo from the mother having sole decision-making authority with the children residing with her to equally shared parenting is simply not realistic and would never occur after a trial.

[38] The Children’s Lawyer submits that the children have clearly expressed their wishes on multiple occasions, that their wishes are supported by the factual background, that their wishes will not change and that they are “fatigued” by this litigation and want it to “be done”. The Children’s Lawyer submits that the children were “very firm” in expressing their views and that these views will not change “going forward” at a trial.

[39] Finally, the Children’s Lawyer suggests that, given the ages of the children, even in the very unlikely event that further contact is ordered with the father, they will not comply and cannot be forced to spend time with their father.

[40] The Children’s Lawyer supports the relief sought by the mother and agrees that there is no genuine issue requiring a trial.

DISCUSSION

[41] Section 16(6) of the FLR’s states that if there is no genuine issue requiring a trial…the court shall make a final order accordingly.

[42] The parties agree as to the general principles guiding the application of FLR 16(6):

• Summary judgment applies to decision-making responsibility and parenting time issues;
• On a summary judgment motion, the burden is on the moving party to establish on a balance of probabilities that there is no genuine issue requiring a trial;
• A responding party has an obligation to provide evidence showing that there is a genuine issue requiring a trial. A responding party must “put their best foot forward” because the motions judge assumes that the evidence before him/her on the motion is the same as the evidence that would be led at trial;
• There will be no genuine issue requiring a trial if the summary judgment process provides the judge with the evidence required to confidently adjudicate the dispute in a fair and just manner and the process is a timely, affordable and proportionate procedure.

[43] I am persuaded that this is an appropriate case for summary judgment. If this matter proceeds to trial, the evidence before the trial judge would be the same evidence as contained in the record before the court, plus the cross-examinations of the deponents of the affidavits.

[44] I accept the submission of the mother that there is sufficient evidence in the record to establish the material facts necessary to resolve the issues in dispute. In my view, the cross-examination of the mother and possibly of Ms. Lang and Ms. Niemi will not change the evidence of any of these individuals in any material way.

[45] It is not in dispute that the father has not had parenting time with the three children since June 2021, a period of 26 months in the lives of these relatively young teenage children. The area of dispute is why this occurred.

[46] The father submits that the mother has been obstructive in relation to his attempts to schedule and exercise parenting time to the extent that she has engaged in parental alienation. The mother strongly disputes this allegation, submitting that the father never actively sought or exercised regular, consistent, meaningful parenting time. The mother further submits that on the infrequent occasions when the father did exercise parenting time, he parented the children so poorly that they did not want to remain in his care or return for further visits.

[47] Obviously, the parties’ positions on this issue are diametrically opposed. However, the court has the benefit of third-party evidence in this case, namely the 2022 VCR of Ms. Lang and the July 26, 2023, affidavit of Ms. Niemi. The evidence of these individuals, as summarized above, clearly conveys the strongly held and consistent views of the children – they do not want to spend time with their father and will resist any attempts to make them do so. Importantly, the VCR of Ms. Lang and the affidavit of Ms. Niemi also set out the children’s reasons for their positions.

[48] The court also has the benefit of submissions from Ms. Petryshyn, OCL counsel for the children. Ms. Petryshyn is an experienced and respected family law counsel who was present when Ms. Niemi met with the children on June 9, 2023. Ms. Petryshyn agreed with Ms. Niemi’s evidence in its entirety.

[49] In my view, the VCR, the evidence of Ms. Niemi and the submissions of Ms. Petryshyn are entitled to very significant weight on this motion. These three individuals are experienced, objective and credible and their evidence as to the views and preferences of the children is consistent and reliable.

[50] These children, 16, 15 and 13 years old, have explained the reasons for their position. There is no evidence in the record before this court to support the father’s assertion that the mother has turned the children against him. As a result, it is fair, just and a simple matter of common sense that the court listen to what these children have said and give effect to their wishes.

[51] The father’s Motion to Change is dismissed. I order that summary judgment issue as requested by the mother in her Notice of Motion dated July 14, 2023, but for the mother’s request that the father be precluded from initiating future court proceedings requesting parenting time without leave of the court. Given that an order has been made stipulating that any parenting time for the father be only at the request of the children, and given the children’s ages, that relief is unnecessary.

[52] If the parties cannot agree on costs, they shall file written submissions as to costs, not to exceed five pages, exclusive of their respective Bills of Costs. The mother’s Costs Submissions shall be filed within 14 days of the release of these reasons; the father’s within seven days thereafter.

“Original signed by”

The Hon. Mr. Justice J.S. Fregeau

Released: August 28, 2023