Court File and Parties

CITATION: Stakenvicius v. Coates, 2024 ONSC 2240 COURT FILE NO.: FC-20-168-1 DATE: 2024/04/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ian Stakenvicius, Applicant AND Tracy Coates, Respondent

BEFORE: Justice Shelston

COUNSEL: Elizabeth Sheppard, friend of the court, for the Applicant Lisa Sharp, friend of the court, for the Respondent

HEARD: April 12, 2024

Endorsement

1The parties are the biological parents of a thirteen-year-old boy. After the parties separated in 2019, the parties engaged in a high conflict litigation regarding their son, including a temporary order placing the child in the primary care of the applicant (“father”), the parties undergoing a Section 30 parenting assessment and the parties entering a very detailed final order of Justice Audet dated May 18, 2021. The final order granted the parties and alternating week about parenting regime.

2By Motion to Change issued on November 3rd, 2023, the respondent (“mother”) seeks to vary the terms of the final order of Justice Audet dated May 18, 2021, including but not limited to, granting her sole decision-making responsibility with the father having parenting time.

3The parties followed the alternating week about schedule until November 10, 2023. On that date, the child was scheduled to return to the father's care. The child was not returned by the mother and since that date, the child has resided in the primary care of the mother with limited parenting time by the father.

4Since November 10, 2023, the parties have attended five separate court hearings. Despite these attendances, the child remains in the full-time care of the mother while the father has very limited parenting time on terms set by the mother.

5On February 16, 2024, the father was given leave to bring a motion for contempt of court. The father has filed a Notice of Motion where he seeks the following orders:

a) A finding that the mother is in contempt of court of the final order of Justice Audet dated May 18, 2021, specifically paragraph 10(a) and paragraph 11(a), (f) and (j), b) A finding that the mother is in contempt of court of my temporary dated January 3, 2024. c) Costs.

6In his affidavit dated March 11, 2024, the father specified the relief related to his motion for contempt of court in that he seeks an order:

a) That the mother purges her contempt by returning the child to the father and comply with the final order. b) If she fails to do so, he seeks an order that she be fined $100 for each 24-hourperiod that the child is withheld to a maximum of $5000 after which she is to be incarcerated for seven days plus an additional day for each subsequent 24-hourperiod the child is withheld. c) An order stating that if the mother does not pay any cost or penalty owing pursuant to this order within seven days of the order or the penalty becoming payable, she is to be incarcerated for seven days for each subsequent day of noncompliance and that the parenting order shall be police enforceable. d) An order that the respondent pay the applicant $100 per day of withholding to a maximum of $5000 as a penalty or an amount the court deems appropriate and just. e) If determined to be in the best interests of the child by this Honorable Court, an order for make-up parenting time to the equivalent to the withholding of the mother. f) An order that the mother pay the father legal costs on a full indemnity basis.

7In response, the mother has filed a Notice of Motion where she seeks the following orders:

a) Order of Audet J, dated May 21, 2021, should be suspended. b) On a temporary and without prejudice basis, the child shall reside with the mother and the father would have parenting time every other Wednesday from 5:30 PM to 7:30 PM, every other Sunday from 2:00 PM to 5:00 PM, virtual calls at least twice every other week and other times as agreed upon by the mother. c) On a temporary and without prejudice basis, the parenting time shall take place in the community with specific terms set out in the Notice of Motion. d) The parties will have no contact with each other except for emergency health situations. e) If arrangements or decisions need to be made for matters outside of the parenting time set out in the Notice of Motion, the father shall have an independent third-party representative contact, or respond to, the mother via 2Houses, or otherwise at the mother's choice to mediate discussions, at the father's expense. f) Costs.

8The mother’s evidence consists of an affidavit dated March 19, 2024, with exhibits consisting of a report dated March 15, 2024 from Dr. Robb, a letter from Ms. Collins of the Ottawa Hospital dated November 2, 2023, a progress note of the social worker at the Ottawa Hospital, a letter dated October 24, 2022 from Dr. Fraser-Roberts, copies of 2Houses messages starting on December 20, 2023 to March 15, 2024, a letter dated March 13, 2024 from Ms. Stewart, a registered psychotherapist who has worked with the mother, and a letter dated November 28, 2023 from Dr. Robb.

9In her reply affidavit dated April 2, 2024, the mother provided a second copy of Ms. Stewart’s letter dated March 13, 2024, the first page of an affidavit of Ms. Seguin dated July 28, 2020, a copy of Dr. Robb’s letter dated March 15, 2024, 2Houses messaging for March 13, 2024 to March 31, 2024, a copy of a texts messages exchanged between the father and child, a calendar of proposed parenting time created by the mother, a letter dated September 8, 2023 from Ms. Zamora of the Children’s Hospital of Eastern Ontario, an email dated March 25, 2024 from the OCL, and various copies of endorsements and motion forms.

10The father has filed two affidavits, namely March 11, 2024, and March 25, 2024 which included exhibits including a Parenting Coordination report dated December 22, 2023, an email exchange between the parties on October 10, 2023, three progress notes from Dr. Agarwal, an email dated November 6, 2023 from Wabano Medical Clinic regarding the child, progress notes of the social worker at the Children’s Hospital of Eastern Ontario starting on November 10, 2023, an email dated November 23, 2023 to the father from Ms. Onwuachi of the Society, a letter dated January 11, 2024 from Dr. Robb regarding the child, an email from Ms. Chabot dated February 22 2024, an email dated November 24, 2023 between the mother and various individuals, including the Parenting Coordinator.

11In his second affidavit dated March 25, 2024, the father has filed as exhibits the parenting coordination service contract, a letter dated March 13, 2024, from Ms. Chabot of the Society, copies of messages through 2Houses for March 6, 2023, arbitration award dated March 13, 2023, a letter from Ms. Cuhaci dated February 12, 2021, a psychoeducational assessment delivered June 22, 2023, an email with Ms. Panela-Seguin dated September 30, 2020, a copy of an invoice from Dr. Matheson dated August 21, 2020, an email dated December 14, 2023 from Bonnie Lowry Bagshaw to the child, an email from Ms. Sharp to the father on December 16, 2023, daily attendance for the child at school, elementary provincial report cards for the child, 2Houses messages from June 20, 2023 to July 17, 2023 and document from Sandbox Family Solutions dated March 22, 2024.

Litigation History

12The parties married on June 27, 2009, and separated on June 16, 2019.

13The parties are the biological parents of J., 13 years of age.

14Proceedings were commenced by the father on January 29, 2020.

15On May 18, 2021, the parties consented to a final order confirmed by Justice Audet which included provisions for joint decision-making, an alternating week about schedule with the transfers on Friday after school, equal sharing of holidays and special occasions.

16As part of the final order, the parties engaged Allison Campbell as a Parenting Coordinator and binding family arbitration service for the period of June 9, 2022, to May 9, 2024.

17On November 3, 2023, the mother filed a Motion to Change which was served on the father on November 28, 2023. In her Motion to Change, the mother sought various claims for relief, including but not limited to, changing the decision-making responsibility, parenting time, child support, spousal support, the appointment of the Office of the Children's Lawyer, and the appointment of Amicus Curiae for the child.

18On November 10, 2023, the mother did not bring the child to the father for his parenting time.

19On December 12, 2023, leave was granted by Associate Justice Fortier to permit the father to bring an emergency motion to reinstate his parenting time. In her endorsement, Associate Justice Fortier noted that it was “uncontradicted that since November 10, 2023, the respondent refused to follow the parenting schedule as ordered and has withheld J. from the applicant”.

20The father was not permitted to speak to his son until December 19th, 2023, and did not see him until December 21, 2023.

21On January 3, 2024, the parties appeared before me and entered Minutes of Settlement which provided that the father would have a gradual increase in his parenting time so that by January 19th, 2024, the parties would resume the alternating week about schedule. In addition, the parties agreed to the appointment of the Office of the Children’s Lawyer (“OCL”).

22I ordered the parties to return before me on January 12, 2024, to provide an update. At that time, I was advised that the father had in person parenting on January 4, 2024, for a few hours but no parenting time since that date. The mother produced a letter from Dr. Robb, the child’s psychiatrist, dated January 11th, 2024, setting out the child's mental health issues. The mother's position was that the parenting time set out in the Minutes of Settlement should not occur due to the severe mental health issues being experienced by the child. I granted the father leave to return to the urgent motion anytime after January 29, 2024.

23The parties appeared before Justice Carter on February 16, 2024, where the father brought a motion for the enforcement of the parenting time schedule in the final order, make up parenting time for days in which the child was withheld by the mother and the police enforcement clause. The court found that the mother continued to be a noncompliance of both orders being the final order, and the order dated January 3, 2024. Her position was that she had brought a Motion to Change, there was evidence from a psychiatrist that the child has anxiety with respect to visitation and that the father’s request should not be granted particularly since a case conference was scheduled for February 28th, 2024. The case conference never took place.

24Justice Carter found that the evidence from the psychiatrist was ambiguous and that he found that the mother was not entitled to ignore court orders as she pursues her Motion to Change and that existing orders must be complied with until they are changed. He granted the father leave to bring a motion for contempt on an expedited basis.

25On February 29, 2024, Justice Engelking dismissed an ex-parte motion brought by the mother seeking sole interim decision- making and primary residence of the child and a variation of the fathers parenting time. The endorsement indicates that the mother relied on her health of having to deal with the father for not providing him with notice based on her allegation that he exercises coercive control over her. Justice Engelking found that she was unable to determine whether the motion brought by the mother within two weeks of the motion being heard and determined by Justice Carter was urgent in the absence of proper notice to the father.

26The parties could not agree on the length of time required for the contested motions. The matter was referred to Justice Audet, LAJ Family, who ordered the parties to attend a case management conference to deal with the parameters of the father's contempt motion and to set a date. On March 5, 2024, Justice Audet was advised that the OCL confirmed on February 14, 2024, that it would conduct a clinical assessment, but she was of the view that the contempt motion should proceed pending the outcome of the investigation.

27Further, Justice Audet assumed case management on a go forward basis, ordered that all motions in this proceeding are to be heard by me and set the motions for April 12, 2024, as the date for the contempt motion and the mother's motion for a temporary change in the parenting schedule (not decision-making) and set the timelines for the exchange of pleadings. Finally, she ordered that either party may seek a case conference before her anytime after the above motions are heard.

Position of the Parties

28The father's position is that the mother has breached the final order and that there are insufficient reasons to vary the terms of the final order on a temporary basis. The father submits that from May 18, 2021, to November 10, 2023, the parties followed the terms of the parenting schedule. Further, the father alleged that the mother breached 22 additional paragraphs in the final order including taking the child to the Children’s Hospital of Eastern Ontario (“CHEO”) on November 10, 2023 without notifying him, retaining Dr. Robb on August 31, 2023 without his consent, withholding the child from attending school from November 7, 2023 to January 8, 2024, various breaches of the code of conduct set out in paragraph 38 of the final order, involving the child in the litigation, initiating communications with the child during the father’s parenting time, refusal to support or facilitate the child and receiving vaccinations, failing to provide a Notice of Assessment, reimbursing him for Section 7 expenses and failing to pursue the alternative dispute resolution procedure with the Parenting Coordinator.

29The mother argues that since the final order of May 18, 2021, the child’s physical, emotional, and psychological safety, security and overall well-being has dramatically declined. She alleges the father has inappropriately responded to the child’s medical and mental health needs resulting from the concussions in March and November 2023, which were the catalyst for the child’s resistance and later refusal to returning to the regular parenting schedule. She argues that the father’s use of the urgent motions has caused the child mental health and well-being issues and that the litany of court dates has been harmful to the child.

30The mother alleges that the child has untreated posttraumatic stress disorder from being forcibly removed by the previous Family Court order and because of the ongoing legal proceedings since November 2023.

Legislative and Jurisprudential Framework

Contempt of court

31Rule 1(8)(g) of the Family Law Rules O.Reg.114/99, as am. (“FLR”), provides that if a person fails to obey an order in a case or a related case, the court may deal with the failure by making an order that it considers necessary for a just determination of the matter, including, on motion, a contempt order.

32Rule 31(5) of the FLR provides that if the court finds a person in contempt of court, it may order that person:

(a) Be imprisoned for any period and on any conditions that are just. (b) Pay a fine in any amount that is appropriate. (c) Pay an amount to a party as a penalty. (d) Do anything else that the court decides is appropriate. (e) Not do what the court forbids. (f) Pay costs in the amount decided by the court; and (g) Obey any other order.

33In Hefkey v Hefkey 2016 ONCA 44, the Court of Appeal stated at paragraph 3:

[3] Moreover, in our view, the civil contempt remedy should not have been sought in the circumstances revealed by the record. The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed”: citations omitted.

34In Godard v Godard 2015 ONCA 568, the Court of Appeal stated the obligation on parents to ensure the children comply with parenting orders as follows:

[28] Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”.

35In Villeneuve v Wilson FC 16-197, Abrams J summarize the law on parents’ obligation to ensure children comply with parenting orders at paragraphs 26, 27, and 28 set out herein:

[26] A parent cannot hide behind the child’s purported wishes as a reason not to comply with a parenting order. A parent who does this abdicates his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences of breaching an order. Whether the parent or the child agrees or disagrees with that order, both must comply with it. It is the responsibility of the parent to show that she is the adult, she is the parent, and she will take appropriate steps to comply with an access schedule: King v. King, 2016 ONSC 3752, at para. 48.

[27] In Jackson v. Jackson (2016), Chappel J. explained that a parent’s positive obligations “goes beyond simply accommodating it [parenting time], making the child available for parenting time and encouraging the child to comply. Rather, the parent must require that parenting time occur and actively facilitate it”. Further, Chappel J. explained what actively promoting and facilitating means, as follows:

d) Actively promoting and facilitating compliance with a custody and access [order] requires the parent to "take concrete measures to apply normal parental authority to have the child comply..." (Godard, supra.; Wright v. Meyer, 2012 CarswellOnt 14827 (S.C.J.)). In determining whether appropriate measures were taken, the court should consider whether the custodial parent did the following:

i. Did they engage in a discussion with the child to determine why the child is refusing to go? ii. Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them? iii. Did they offer the child an incentive to comply with the order? iv. Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?

[28] What steps a parent must take to have the child attend access with the other parent depends on the circumstances and age of the child. Usually, passive “reasoning with the child” is insufficient and is in breach of the access order. There is a positive obligation to ensure that a child complies with the order. The parent is not entitled to leave access decisions to the child:

36In Carey v Laiken 2015 SCC 17, the court set out the three requirements of civil contempt being:

a) The order alleged to have been breached must state clearly and unequivocally which should and should not be done. b) The party alleged to have breached the order must have actual knowledge of it. c) The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do an act that the order compels.

37The decision to find a party in contempt of court is the last course of action that a court should take to enforce a court order. Parties must be given an opportunity to correct any alleged breaches of court orders.

Legal test for variation of a final parenting order on a temporary basis

38In F.K. v. A.K 2020 ONSC 3726, Pazaratz, J. set out the various factors to consider on an interim variation of a final parenting order at paragraph 52:

52. The added complication: the father seeks a temporary variation of a final parenting order. This requires that the court conduct an even more stringent analysis:

a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to. b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. M. (B.P.) v. M. (B.L.D.E.), [1992 CarswellOnt 295 (Ont. C.A.)], 1992) (Ont. S.C.J.); Oickle v. Beland, 2012 ONCJ 778 (Ont. C.J.). c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue. d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order — in the appropriate circumstances. Stokes v. Stokes, 2014 ONSC 1311 (Ont. S.C.J.); Huliyappa v. Menon, 2012 ONSC 5668 (Ont. S.C.J.); Clements v. Merriam, 2012 ONCJ 700 (Ont. C.J.). e. But the evidentiary basis to grant such a temporary variation must be compelling. f. The court must start with the aforementioned two-part material change in circumstances analysis. g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child's best interests. h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child's physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child. i. The court must be satisfied that the child's best interests require an immediate change — to reduce the detrimental impact of unacceptable negative dynamics or behaviours. j. The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child — and that the proposed temporary variation is urgently needed to shield the child from likely future harm. k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied — on a balance of probabilities — that a clear and compelling need to make an immediate change has been established. m. On a temporary motion, the status quo will have a strong gravitational pull — until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child's current exposure to harm.

39In S.K. v J.K, 2022 ONSC 1203, the Divisional Court expanded on the considerations set out by Pazaratz, J. in F.K v A.K. at para. 40:

40. I have already said that the imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle and consistent with authority. Before embarking on an inquiry into the best interests of the child, the court must first be satisfied that circumstances exist of so compelling and exceptional a nature that they require an immediate change. I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child's physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.

Factual Findings

40The father seeks a finding that the mother is in contempt of court and the resumption of the alternating week about schedule while the mother alleges that there has been a material change in circumstance requiring a suspension of the final order and the creation of a new parenting plan.

41Unfortunately for this child, because of the high conflict between the parents, he has suffered mental health challenges. The child's pediatrician, Dr. Gillies, recommended the child be referred to the CHEO Mental Health Outpatient Clinic for diagnostic clarification and treatment recommendations. The child had an intake appointment at that clinic on August 9, 2023, and he was referred to Dr. Robb, a child and adolescent psychiatrist. The appointment was for August 31, 2023.

42In her report dated March 15, 2024, Dr. Robb indicated that she initially met the child on August 31, 2023. The father had not consented to the appointment but after determining the child was very clear that he wanted the appointment that he wanted help for himself, the appointment proceeded. The report indicates the child identified that he wanted help with managing his emotions and that anxiety has also been a long-standing problem. The child told the doctor that in the fall, he was doing reasonably well, alternating weeks between parents’ home and attending school. He was not on any medication. In early November, he sustained a concussion after which he did not want to go to his father’s, resulting in a downward spiral in which the child refuses to go with his father. Dr. Robb has not met the father and has met the mother on August 31, 2023, and in February 2024.

43The father states in his affidavit that the mother used a self-help remedy to engage Dr. Robb as the child's ongoing therapist, avoiding engagement with him and the Parenting Coordinator to obtain joint direction and actively blocked him from communicating with Dr. Robb. The father does not provide any reason why he did not want Dr. Robb to become involved and does not deny the recommendations of Dr. Gillies.

44On November 5, 2023, the child suffered a head injury while in the care of the mother. The mother took the child to a nurse practitioner at the Wabano Medical Clinic who diagnosed the child with a mild head concussion and recommended that the child be limited to 20 minutes of tech and reading, then having a break with such structure to apply over the next 5 to 7 days based on symptoms. Further, the child was to possibly attend school on November 6, 2023, with the parent to reassess tomorrow for symptoms and to monitor the child for symptoms of headache, nausea, vision changes and return to clinic if concerns.

45On November 7, the mother withheld the child from school. He returned on November 9 but was unable to complete the entire day because of suffering from concussion symptoms. The mother messaged the father on the evening of November 9 that she was going to take the child to the clinic the following day.

46Rather than take the child back to the Wabano Medical Clinic for a reassessment, the mother took the child to CHEO. According to the notes of the social worker at CHEO at 2 PM, the mother presented to the mental health outpatient services alongside her child seeking support for child protection concerns and intimate partner violence. The notes indicate that the mother advised the social worker that she and the child had experienced chronic trauma as it relates to intimate partner violence as well as systematic racism, a lack of trauma-informed care and gender discrimination within the healthcare, child protection and judicial systems. The mother was tearful as she pleaded with the worker to not inflict further harm onto, she and the child.

47At 3 PM, the social worker’s notes indicate that the mother stated she felt an imminent threat to her and the child’s emotional and physical well-being by not being available for the transfer of the child to the father’s care. The mother explained that the past week had been particularly challenging as the child sustained a concussion and that the parents could not agree on the type of medical care that the child required resulting in added tension between them. The mother explained that the child had valid minimal contact with his mother while with his father and this is especially troubling to the mother given the child’s concussion symptoms. Further, the mother explained that, apparently, the child did not wish to visit with his father describing him as unpredictable.

48The mother requested the social worker to make a police report regarding intimate partner violence. The mother reported feelings of terror and deep mistrust with regards to having to engage with these services, however, was able to reflect that each person who operates within the systems is an individual and therefore, was open to this contact, hoping that this time would be different from past experiences which she describes as having been traumatic for both her and the child.

49The worker’s notes indicate that the CHEO security was informed that the father would not be told that the child was on site and that the mother’s vehicle would be moved out of the visitor’s lot. The notes indicate that the plan was delicately explained to the child by the social worker with the child expressing hesitancy with regards to meeting the police and the Society.

50The notes further disclose that a report was made to the Ottawa Police Service who attended and interviewed the child, who expressed that he did not wish to be brought to his father’s care that evening and that what could be done to keep him and his mother from being harmed by the father. Thereafter, the mother left with the child.

51The father attended at the hospital and was escorted off site by security.

52The police did not open an investigation. Based on the statements made by the mother on November 10, 2023, the Society opened an investigation. On November 23, 2023, the father received an email from a child protection worker advising that the Society would be closing its investigation as the outstanding concerns relating to parenting time should remain to be addressed through the family court order or through parenting coordination.

53The social worker met with the child and the mother on November 17, November 29, and December 12, 2023. The child advised the social worker that he did not go to school because he was fearful of being apprehended and that he felt it would be helpful for him to have the OCL appointed.

54On December 22nd, 2023, the parenting coordinator filed a report where she indicated the following:

a) There is all my level of conflict between these two parents. b) The child is being exposed to the conflict and is being significantly impacted. c) The parenting coordinator had three meetings on July 8th, 2022, September 12, and September 15, 2022. 3 arbitration awards were issued between November and December 2022. d) The mother requested to terminate the parenting coordination process in January 2023. However, the Parenting Coordination’s contract requires that both parties request to terminate failing which neither parent can usually terminate the contract. e) Between November 2nd, 2022, and November 24th, 2023, there have been 8 arbitration awards. f) After November 10, 2023, the father contacted the Parenting Coordinator to advise that the mother had not returned the child and requested the enforcement of the final order. On November 15, 2023, the Parenting Coordinator sent correspondence to the mother seeking confirmation that the child remained in her care contrary to the existing order, why she had determined that the child should remain in her care and if the mother intended to return the child to the regular parenting schedule. There was no response. g) The Parenting Coordinator received correspondence from a child protection worker that the Society’s outstanding concerns related to parenting time should remain to be addressed through family court or parenting coordination. Consequently, the Society closed the current investigation. h) The Parenting Coordinator made an award confirming that until such time as either parent returns this matter to the court and obtains an order amending the existing parenting schedule, and in the absence of evidence that the trial’s best interests are the to the contrary, the parenting coordinator must enforce the order. Further, the award confirmed that either parent should wish to vary the existing parenting schedule, they are at liberty to bring this issue before the court, however, pending a further order of the court, or clear direction from the Society in writing to the contrary provided to both parents, the parenting schedule set out in paragraph 10 and 11 of the final order shall be followed.

55By letter dated January 11, 2024, Dr. Marjorie Robb indicated that she had been in the child’s treating psychiatrist since early fall 2023 and then when she saw him in late October, he had developed a high level of anxiety related to his current situation especially his visitation worries. The doctor stated in her letter that the child, “now he has trouble sleeping, nightmares, weight loss due to difficulty eating, and panic attacks as well as worrying a great deal”.

56By email dated February 22, 2024, Ms. Anne-Marie Chabot, a child protection worker with the Society, sent an email to the father where she indicated that the file may close due to the mother and child’s clear refusal or disinterest to engage in monthly visits for the purposes of addressing child protection concerns, offering support, assistance to access services, etc. The worker indicated that, ‘to be briefed and honest, the mother, Ms. Coates and J., have not been met because they do not seem interested in receiving ongoing support.”

57In the father’s affidavit dated March 11, 2024, he stated that he had parenting time with the child from November 10, 2023 and March 10, 2023, on December 21, 2023 from 3-6 PM which apparently ended at 4:15 PM due to the apparent interference of third party, January 4, 2024 from 2-4 PM as per the Minutes of Settlement, January 20, 2024 from 1-4:30 PM at Camp Fortune, February 7, 2024 from 6-7:30 PM for dinner and February 22, 2024 from 6-7:30 PM at the Flying Squirrel.

Analysis

58The mother vehemently denies that she is withholding the child from the father but that she has tried to actively negotiate with the father to get him to spend time with the child, but the father has been inflexible, high-handed, rigid, and obstructive.

59In her affidavit dated March 19, 2024, the mother indicates that that the child did not want to return to the father’s home on November 10, 2023, because he had sustained a concussion and was in pain and in emotional distress and that his situation was worse by arguments with his father in the preceding week.

60She alleges that the father’s urgent motion brought since November 15, 2023, have caused the child’s mental health and well-being to deteriorate substantially in the litany of court dates has been harmful to the child.

61However, in the social worker’s notes at CHEO, the mother presented herself and the child as victims requiring protection from the father. The notes did not even mention the child’s concussions in March and November 2023. The focus of the contact was based on the allegation by the mother that she was a victim of domestic violence and intimate partner violence. I find that the mother did not go to the hospital to address the concussion issue but rather to make allegations seeking the involvement of the Society and the Ottawa Police Service.

62I find that the mother has produced no evidence that the child’s mental health was negatively affected while in the care of the father. On the contrary, the report of Dr. Robb dated January 11, 2024, and paragraph six of her letter dated March 15, 2024, confirmed that the child was doing well in the father’s care.

63The mother relies heavily on the report of Dr. Robb dated March 15, 2024. However, I find that there are significant difficulties in Dr. Robb’s report as follows:

a) Dr. Robb did not meet with the father but met with the mother on two separate occasions. I find that many significant pieces of evidence were not brought to Dr. Robb’s attention. b) Dr. Robb indicates that she was surprised that family therapy had not occurred when in fact, it had occurred in the Fall 2020 on October 29, 2020, with Ms. Cuhaci. c) Dr. Robb indicated the child had not had a formal psychoeducational testing, but one had been completed and finalized on June 30, 2023. d) Dr. Robb was apparently not aware that the child had sessions with a psychotherapist specializing in play therapy in 2017 for three sessions. e) Dr. Robb was not aware that while the child did not have counselling at the Youth Services Bureau, but he did call the Youth Services Bureau up to June 30, 2020, but none since that date. f) Dr. Robb concludes that the father has made it difficult for the child to see mental health providers without any input from the father. The father states that they were seeking a replacement to a worker, Ms. Tully, but that the mother refused to consent to intake. g) Dr. Robb finds that the father would visit with the child sometimes, but she was apparently unaware that Justice MacKinnon placed the child in the father's care on June 30, 2020, and that the child was in the father’s care on a full-time basis until May 2021 when the parties agreed to a week about schedule. h) Dr. Robb was not provided with a copy of the section 30 parenting assessment prior to her opining on the mother’s parenting ability. i) Dr. Robb’s report does not refer to the decision of the Society to close their file or the letter from Ms. Chabot.

64Firstly, Dr. Robb is a psychiatrist dealing with a patient. I find that the narrative part of her report is based on significantly incomplete information. However, in her role as a child psychiatrist, I find that this child is having mental health issues because of stress created by parental conflict. Unfortunately, this has been going on since 2020.

65I find that the father took proper care of the child after he sustained a concussion while in the father’s care while skating. Within three days of the child’s return to his care, the concussion symptoms had dissipated and only presented while he was at school. On March 9, 2023, the father took the child to 360 Concussion Care where he was seen by a doctor who confirmed that the child was concussed and recovering. While recovering in the father’s care, the mother insisted on calling the child. The parties could not agree, and the mother took the issue to the Parenting Coordinator who granted her calls every second day from March 14, 2023, to March 24, 2023.

66I agree with the father that many of the mother’s claim of coercive control are based on her self-reported information. At this juncture, the court cannot confirm the accuracy of the statements. Many of the statements made by individuals who support the mother’s claim and do so solely on the information provided by the mother. The court must be cautious when such evidence is presented to improperly rely on such evidence.

67I find that the mother knowingly refused to return the child on November 10, 2023, that she was aware of the terms of the final order and that she intended to not comply. This situation has occurred because the mother decided to ignore the court order and to create a new status quo while she was proceeding on a Motion to Change the final order. The court cannot condone this type of action unless there is evidence that convinces the court, on the balance of probabilities, that there has been a material and compelling change in circumstances that requires judicial intervention to vary the final order on a temporary basis.

68The burden of proof is on the mother to show that there has been a material change in circumstance which according to the jurisprudence requires something that is material and compelling that existed as of November 10, 2023.

69It is trite law that a party cannot change a parenting regime then argue that a new status quo is in place. The status quo is the parenting regime prior to the unilateral lack of a parent. In this case, the status quo is based on the final order that the child was alternating residences on a week about basis.

70The father’s position is that the mother should be fined, incarcerated, and that the child should be placed in his care for make-up parenting time equivalent to the time the child has been in the care of the mother.

71The mother’s position is that the final order must be varied on a temporary basis based on the best interests of the child. The mother makes very serious allegations against the father as follows:

a) Alleges that the child developed posttraumatic stress disorder because of being removed from the mother’s care by order of Justice MacKinnon. b) That Dr. Robb made seven disclosures which the Society has not followed. c) That the father has prevented the child from having psychiatric care since June 2020. d) That the father has exercised coercive control and caused harm to the mother. e) That she and the child are victims of long-term violence. f) That in January 2023, Dr. Gillies recommended a psychiatric assessment which the father refused. g) That the Society has refused to investigate multiple allegations of abuse suffered by the child by third parties like teachers

72This is not the first time that the mother has interfered with the father’s parenting time. By temporary order of Justice MacKinnon dated June 29, 2020, the child was placed in the father’s sole custody with limited contact to the mother. In her endorsement, Justice MacKinnon found that the mother had an extremely negative view of the father, that she has poor insight into her involvement suffered by the child, and she has been overly dramatic in presenting her evidence. On the issue of alienation by the mother, Justice MacKinnon found:

[159] I have considered the proposals of both parents in light of my findings of fact and the statutory principles and factors pertaining to Jaeden’s best interests. The risk to the mother’s plan is that she and Jaeden will continue the current path with the result that Jaeden will not have a relationship with his father, and that he will continue to be an anxious child with some important unhealthy aspects in his attachment to his mother. The risk to the father’s plan is that Jaeden might attempt to harm himself or his father. There is also a risk that he will become more anxious about his mother’s wellbeing. And there is the risk that the slow reopening of services due to COVID-19 will delay their access to the help needed for a successful outcome.

73By temporary order dated August 12, 2020, Justice MacKinnon indicated that the child was removed from the mother’s care with the help of the Society over a period of three hours, and initially, the child was very clear of his negative views of the father but within three days, he was doing much better and more comfortable and by the time the parties appeared before her in August 2020, he was doing quite well. He was not showing any aggression, suicidal ideation, or aggression against his father.

74A custody and access assessment dated December 18, 2020, provided conclusions which included the following:

a) J.’s family has been marked by conflict and turmoil since before J. was born. b) The mother’s family of origin is marked by trauma, separations and, going back in the generations, substance abuse, mental health struggles, and violence, transgenerational trauma, including her own nuclear family of origin, has undoubtedly affected Ms. Coates and much of this traumatic layering seems still unresolved and is affecting her deeply. c) Ms. Coates is very intelligent and has put herself through school and university and become a professional lawyer and university professor known for her focus on justice and human rights. d) Mr. Stakenvicius is intelligent but struggles with shyness and anxiety and had difficulties interpreting social cues and understanding social situations. e) An alliance was formed between J. and his mother as victims of abuse and that this became a dominant theme and source of struggle within the union. Ms. Coates viewed herself as rescuing her son from a dangerous or destructive situation with his father. f) J. was much influenced by his alliance with his mother, started rejecting his father very early in his life and challenging him in ways that brought J. himself much distress. g) Ms. Coates view of Mr. Stakenvicius is extreme as she views him as someone who is criminally and highly abusive towards her and J. Mr. Stakenvicius’ s view of Ms. Coates is more moderate but that he does not trust her. h) J. cannot cope with the psychological pressure he has been under. The goal in terms of reconciliation is to alleviate pressure on him. Although both parents of psychological difficulties, Ms. Coates’s small adjustment and major lack of emotional control is the greater issue. She loves her son but has been unable to protect him from her deep sense of persecution and bitterness that permeates her life and dominates her reasoning. i) Mr. Stakenvicius is an anxious man, worn down in his marriage and struggling to rise to the parenting challenging with his son. He feels very badly treated and there is a depressive bitterness in him that was apparent on the psychological testing.

75The assessor recommended the father be granted sole custody of the child. Despite the conclusions of the assessment, the father agreed to an alternating week about joint custody parenting plan.

76I find that upon reading the mother’s Motion to Change, her two affidavits, the various exhibits attached thereto and in her submissions before me, she has suffered significant trauma which appears unresolved. She has equated the father as the source of her trauma and cannot envisage the child living with the father based on her allegations.

77In Dr. Robb’s report dated March 15, 2024, she specifically indicates that the child told her that he had no issues in the Fall 2023, that he was participating in the week about schedule, that he was not on medication, and he raised no issues regarding his father.

78However, by March 2024, the child was exhibiting all sorts of issues such as having difficulty sleeping, difficulty eating and being on medication. Further, the mother states that since November 2023, the child has developed an anxiety disorder that was confirmed by Dr. Robb to have not existed prior to this litigation. I find that since the child has been in the mother’s exclusive care, the child’s situation has worsened.

79The mother filed her Motion to Change on November 3, 2023, two days before the child suffered a concussion and seven days before the exchange date. I find that the mother was anticipating not returning the child and had commenced proceedings before any of the alleged intervening acts that required her to not return the child.

80It is the law that the court is to take into consideration the views and preferences of a child in making any decision regarding his care. A child has a right to be heard. However, the court must be cautious to take into consideration the views and preferences of a child when there is evidence of parental interference. There is a sound principle as to why this is appropriate. The court must be cautious to avoid a parent involving a child in the litigation which is contrary to a child’s best interests. In this case, I find that the mother has involved the child in the litigation resulting in him being afraid to attend school because he would be apparently, apprehended. There is no evidence the child was ever apprehended by anyone.

81Further, the mother took the child to an interview with her own lawyer. Parents are required to insulate children from litigation especially in circumstances where the views and preferences of the child is a very relevant factor.

82I am concerned that the mother has met with Dr. Robb, the social worker, and various third parties to provide them with the narrative regarding the father’s misconduct and coercive control. The problem is none of these parties have had any input from the father. As such, any of their comments must be cautiously considered because it is based on only one party’s story and of a child who is been in the exclusive care of one parent contrary to a court order.

83The mother did not have the right to unilaterally change the court order. She should have brought a motion for an emergency hearing. I find that on November 10, 2023, she attempted to enlist the aid of the Society and the Ottawa Police Service to prevent the implementation of the final order.

84There is no evidence that Dr. Robb’s disclosures were not followed by the Society. The evidence is that the Society opened an investigation on November 10 and closed it on November 23, 2023. Further, the Society has disengaged with the mother and the child because of their lack of interest in interacting with the Society, which is highly unusual if someone believes the child is a victim of conduct rising to the level requiring a finding in need of protection.

85The issue of the mother alleging the father has been guilty of coercive control has existed since the parties separated.

86There is no evidence that the Society refused to investigate multiple allegations of abuse made against the father by third parties like teachers. At this point, there is no investigation by the Society or by the Ottawa Police Service.

87By letter dated March 13, 2024, from Anne-Marie Chabot, the child protection worker involved with the family, wrote to advise that the family file was closed as the mother and child had recently voiced that they want nothing to do with the Society and have refused to follow up contacts. The letter includes the following paragraphs:

.. The concern that the child is being exposed to emotional harm is verified against Ms. Coates and deemed inconclusive with respect to Mr. Stakenvicius. Ms. Coates accuses Mr. Stakenvicius of using the family court system to continue to coerce and control her. However, Ms. Coates is the parent who is been using several systems to interfere with the father’s parenting time with his son. She has withheld most contact between Mr. Stakenvicius and the child since November 2023 forcing him to resort to the court to reinstate his parental rights.

The ongoing conflict between the parents has had a negative impact on Jaden’s mental health which is reportedly declining. It is reported that he is not sleeping and was recently prescribed sleep medication by a psychiatrist. There is a worry that Ms. Coates may be exposing J. to too much information.

The Society worries that if the parents continued to disagree with her parenting agreement and engage in conflict with each other over this issue, that J. may continue to receive information about the matters, which puts pressure on him to be protective of his mother, which in turn may result in J. feeling anxious, worried, stressed and fearful about his living arrangements and it may negatively impact his relationships with his parents, specifically with his father at this time.

88It is not in the best interests of any child to allow one parent to unilaterally change a parenting regime, make disclosures to third parties like the social worker at the hospital to attempt to create a narrative to isolate the other parent and remove him from the child’s life. The court must be cautious of evidence provided by an individual who is embarked on that course of conduct.

89The court must also protect victims of intimate partner violence from the aggressor and children caught in such a dysfunctional relationship. The court must look for evidence to support allegations made by both parties relying on independent third-party evidence. At this juncture, there has been no cross-examination on any of the affidavits and no viva voce evidence is to be received on an urgent motion. A trial will be the best opportunity for the court to receive the evidence of the parties, allow for cross-examination and receive evidence from third parties such as child protection workers, medical professionals, and other witnesses.

90As the OCL has been appointed and will be conducting a clinical assessment, it is imperative that both parties are on an equal footing. I do not find it is in the best interests of the child that the mother’s unilateral variation of the final order represents the status quo as of November 10, 2023. The mother’s position creates a false appearance as to the status quo. The father never consented to any change and the mother did not see fit to apply to court on emergency basis.

91As of the date of this endorsement, the child has been in the care of the mother for over five months with the father having limited parenting time. This situation cannot continue.

92I find that by the mother’s unilateral action, she is compromised her child’s own mental health by now placing him in a very difficult situation where he is being told that his father is a risk to him. I do not find that any such evidence existed as of November 10, 2023.

93I am cognizant of the statements contained by Dr. Robb regarding the child’s mental health. As the child will now have a OCL clinical assessment, he will have the opportunity to have his views and preferences advanced before the court. However, as much as the child has a right to have a say in his future care, the mother’s actions have impaired the child’s relationship with his father.

Disposition

94I find that the elements of contempt of court have been met. Such a finding is to be made sparingly an as a last resort. Currently, I believe that there are other avenues to ensure compliance with the court order other than a finding that the mother is in contempt of court.

95Based on the reasons set out in this endorsement, I do not find that on November 10, 2023, there existed a material and compelling reason to vary, on a temporary basis, the final order dated May 18, 2021, of Justice Audet. I find the mother has not met her burden of proof. However, the focus is the best interest of the child. I do not believe it is in his best interest two immediately return to the week about schedule in an abrupt manner.

96I order that J. have a gradual reintroduction of the alternating week about schedule. I order that the father have parenting time with the child on Saturday April 27, 2024, from 1:00 PM to 5:00 PM and on Sunday April 28, 2024, from 1:00 PM to 5:00 PM. Further, the father will have parenting time with his child on May 1, 2024, from after school to 8:00 PM. The parties are at liberty to vary the dates and times set out in this paragraph.

97I order that commencing Friday May 3rd, 2024, the alternating week about schedule will commence with the father having the child on Friday May 3rd to May 10th, 2024, with the parties to alternate every week thereafter.

98However, if the mother does not comply with the terms of this order, the parties are to return to me at the date arranged through the Trial Coordinator on an urgent basis. At that time, the court will consider further options that are in the child's best interest.

Costs

99I order the father provide his cost submissions no longer than two pages plus a detailed bill of costs and any offers to settle by May 10, 2024. I order that the mother shall provide her cost submissions no longer than two pages plus a detailed bill of costs and any offers to settle by May 17, 2024.