Court File and Parties

Court File No.: FC1201/22 Date: May 23, 2024 Superior Court of Justice – Ontario Family Court

Re: Matthew Warren Carey, Applicant And: Amanda Anne Carey, Respondent

Before: Tobin J.

Attendance: William R. Clayton, for the Applicant Danica Francis, for the Respondent Jim Pietrangelo, for the Children’s Lawyer

Heard: May 17, 2024

Endorsement

Overview

[1] Two children, now eight and five, are resisting contact with their father, the Applicant. He claims the mother is the reason for this resistance. She is not supportive of his relationship with the children.

[2] The mother, the Respondent, claims that there is good reason for the children’s resistance. The father’s behaviour towards the children, including assaulting the eight-year-old, explains the children’s refusal, or resistance, with contact.

[3] Before the Court is what the Children’s Lawyer’s counsel characterized as an extremely high conflict case.

The Motions

[4] The father brought a motion:

1. To change the existing parenting order so that he be granted sole decision-making responsibility and primary residence of the children;

2. That for a period of 120 days the children have no contact with the mother and thereafter she have parenting time; and

3. For a police enforcement order.

[5] The mother’s motion requests the suspension of the father’s parenting time or, in the alternative, that it be supervised.

[6] Both motions were before the Court on April 26, 2024. Following a contested adjournment request made by the mother, the motions were adjourned to May 17, 2024, for argument. The adjournment was made on terms including parenting time for the father.

[7] On that same day, the parties argued the father’s request for a contempt order against the mother. In my endorsement of May 1, 2024, the father’s request was dismissed: see Carey v. Carey, 2024 ONSC 2516.

[8] Both parties relied upon the evidence filed on the contempt motion with respect to the motions now before the Court, together with their updated affidavits subsequently filed.

[9] The following is a summary of the facts contained in the endorsement on the contempt motion at paras. 2 to 37. As stated above, these facts apply here as well:

[2] The parties are parents of two children, Jackson Warren Carey, born October 4, 2015, now eight years of age, and Connor Joshua Carey, born June 5, 2018, now five years of age.

[3] The parties separated on January 28, 2020.

Separation Agreement

[4] On June 16, 2021, the parties entered into a separation agreement. It provided, in part, that the parties have joint decision-making responsibility with respect to their children.

[5] As part of the joint decision-making responsibility consultation process, the parties agreed to consider the views and preferences of the children.

[6] If, after meaningful consultation, the parties were not able to agree on an important decision, the mother was to make the final decision. The mother’s decision, however, was subject to review by the court if the father believed the decision was not in the best interests of the children.

[7] The parties also agreed that the children’s primary residence would be with the mother. The father’s parenting time was defined in the separation agreement.

[8] In accordance with the terms of the separation agreement, the father had parenting time with the children until August 2022.

August 26, 2022 Incident

[9] On August 26, 2022, the father went to the mother’s house to pick up the children for his parenting time. The mother’s evidence was that the father was “intoxicated and caused a scene.” As a result, she would not allow the children to go with the father.

[10] The father denies this incident occurred as described by the mother. His evidence is that the mother “began to arbitrarily withhold the children and refused [him] any contact with them.”

[11] What the parties do agree upon is that the father did not have parenting time with the children for a number of months after that date. The mother’s evidence is that she did not hear from the father to resume his parenting time until he retained counsel.

A Court Case is Started by the Father

[12] On November 7, 2022, the father started an application, asking the court, in part, to reinstate his parenting time, provide him with makeup parenting time, and provide for scheduled telephone calls.

[13] On February 21, 2023, the matter was before the court and Justice Price made an order upon the following terms:

1. the parenting arrangements for the children were to be as set out in the separation agreement made by the parties except as varied by the court’s order;

2. the father was not to consume alcohol during his parenting time and for 12 hours prior thereto;

3. makeup parenting time was ordered;

4. the father was to have telephone contact with the children on the Saturdays, Sundays, and Tuesdays when they were not in his care. The telephone contact was to be for up to 15 minutes each day. The default time for the telephone calls was to be 6:30 p.m.

[14] This order was followed until March 25, 2023.

March 25, 2023 Incident

[15] On March 25, 2023, the father had the children in his care. He brought them to a hockey rink in London so that Jackson could participate in a hockey tournament. The mother also attended that day as the parties’ usual practice was for her to bring the children’s hockey equipment.

[16] The mother’s evidence is that on that day was that:

1. the father “appeared to be intoxicated, as he was stumbling, had red eyes, and was slurring his words;”

2. the father threw something at the mother;

3. another parent told the father that his behaviour was inappropriate; and

4. the father stormed out of the arena and the children stayed with the mother the rest of the weekend.

[17] The father’s evidence regarding this event is that the mother “purported to remove the children” from his care. In order to avoid a confrontation that would embarrass the children, he left the arena.

[18] Following that event, the father did not see the children for a number of months. The mother’s evidence is that the father did not attend to pick up the children during his three parenting time weekends in April 2023 nor the three parenting time weekends he had in May 2023.

[19] Also, during this period, the father did not have telephone contact with the children. The mother’s evidence is that the parties agreed the calls would occur at 6:30 p.m. The missed calls were due to the father calling late or requesting a different schedule.

Case Conference

[20] On May 24, 2023, a case conference was held before Justice Sah. An order giving effect to a Consent Endorsement Request signed and filed by the parties was granted by the court that day. Mr. Clayton advised that the formal order has yet not been taken out.

[21] The Consent Endorsement Request provided in part:

1. The children were to be picked up and dropped off at the mother’s residence, or the children’s school, if applicable, by third parties, namely Sarah Hardman (the father’s girlfriend) or Cathy Carey (the paternal grandmother), starting May 26, 2023 at 5:00 p.m.

2. Except as otherwise provided for in the Consent Endorsement Request, the order of Justice Price was to remain in full force and effect.

3. “Parties to remain in vehicle, and third parties to remain in vehicle or, if applicable, in the residence.”

4. Direct telephone calls prescribed in the order of Justice Price were to take place at 6:30 p.m. and were to be initiated by the mother.

May 26, 2023

[22] The next scheduled parenting time following the appearance before Justice Sah was to take place May 26, 2023 at 5:00 p.m.

[23] The children were not made available at that time.

[24] The mother explained that the children were not at her home at that time because they were with her due to an “urgent emergency” with a relative. The mother’s evidence is that she did not call the father because there was a non-communication order in place as a result of an outstanding criminal charge against him. The mother understood she was prohibited from communicating with the father. As well, the mother was not able to call the paternal grandmother as she (the paternal grandmother) had blocked the mother’s ability to do so. The mother offered makeup time to the father, but this was declined by him.

[25] On June 2, 2023, the father’s girlfriend attended to pick up the children. The children came out of the house ready to go to their father’s for parenting time. The weekend parenting time took place without incident.

[26] Subsequent to June 2, 2023, weekend parenting time continued without significant incident [1] until September 28, 2023.

[27] The case was before Justice Campbell on September 13, 2023 to address the father’s amended contempt motion dated June 5, 2023. The father did not pursue his contempt claim that day. Instead, parenting time issues were addressed. The court’s decision was released on October 5, 2023. The order made by Justice Campbell, released October 5, 2023, provided, in part,

1. for makeup parenting time and allowed the father to attend at parenting time pickup as long as he stayed in his vehicle.

2. the father was to give notice to the mother that he will exercise parenting time no less than 18 hours in advance.

3. also, it was ordered that the mother comply with the telephone contact order made by Justice Price on February 21, 2023.

September 25, 2023 Incident

[28] The father had parenting time with the children on the weekend of September 23–25, 2023.

[29] After Jackson returned home, he disclosed to the mother that the day before, his father “assaulted” [2] him.

[30] The mother reported this disclosure to the Children’s Aid Society and police.

[31] The children were not made available for parenting time with the father on the next scheduled visit as Jackson was interviewed by a police detective.

[32] On the next mid-week parenting time, being October 4, 2023, the children did not want to go with their paternal grandmother when she came to pick them up. Consequently, the maternal grandmother left without the children.

[33] The next weekend of parenting time was scheduled for October 6, 2023. The paternal grandmother attended the mother’s home to pick up the children. Both children went to the paternal grandmother’s vehicle and told her they would not go with her. The mother, who heard and saw this exchange through her Ring doorbell, came outside to try to convince the children to go. She spent two hours trying to do this. The children refused. The paternal grandmother drove away.

[34] Despite attempting to have the children in his care, they have not gone for parenting time since the weekend of September 23, 2023.

[35] The paternal grandmother attended at the mother’s home to pick up the children for the father’s parenting time on each scheduled occasion. The children have not made the transition from the mother’s care to his [3].

[36] The parties agree that no charges were brought against the father arising from Jackson’s disclosure and the CAS closed its file.

[37] In addition to not seeing the children, the father has not received a telephone call from them despite the existing court orders providing for this to occur.

[10] As stated above, the father was to have parenting time with the children during the period of the adjournment. There were to be two periods of parenting time to take place at a McDonald’s restaurant. The Children’s Lawyer suggested the younger child was amenable to this plan.

May 3, 2024 Parenting Time

[11] The first visit was scheduled to take place on May 3, 2024. It did not go well.

[12] The mother and her partner arrived with the children. The children refused to leave their vehicle. The respondent and the paternal grandmother recorded the events of that day. [4] The older child refused to get out of the vehicle. He was observed to have “his head between his knees and he positioned himself behind the boot well behind his mother’s seat. [The younger child] shifted to that side of the vehicle.” [5] Neither child would acknowledge the father. The mother described the children as yelling, screaming, and crying that they did not want to go inside the restaurant.

[13] The mother’s evidence is that for 20 minutes she encouraged the children to go into the restaurant and that she did not “interfere with the father trying to exercise his parental authority to get the children out of the car…”

[14] The father’s evidence is that the mother did nothing to curb the children’s behaviour.

[15] Eventually, the parties left. There was no visit.

May 11, 2024 Parenting Time

[16] The next parenting time period was scheduled for May 11, 2024. The mother asked, and the father—to his credit—agreed, to change the date to May 10, 2024. This allowed the older child to go to a playoff hockey game. This visit went a little better than the previous one. When the mother and the children arrived at the restaurant, the children would not leave their vehicle. When the mother got out of the car to open the children’s door, the older child tried to stop her.

[17] There were a number of the father’s extended family members present that day. All were calm. The children refused the father’s request to go inside the restaurant. However, the children did agree to the father bringing them food from the restaurant to their vehicle. The father spoke appropriately with the children. Knowing the older child was going to a playoff game, the father gave him money to spend at the game for souvenirs. He also gave a gift to the younger child. He told the children he loved them, a number of times. They said it back. At the father’s request, they kissed him and shook his hand; reluctantly, according to the mother.

Telephone Parenting Time

[18] The father and children were also to continue to have telephone calls three times per week pursuant to a prior order. The telephone calls have been made by the mother, but according to her, have not been positive.

[19] The father did not provide evidence with respect to the second visit nor the telephone calls as he was required to file his materials before these events occurred.

Position of the Parties

The Father

[20] The father argues:

1. The mother’s behaviour in not supporting the father’s relationship with the children is so egregious that a change in decision-making responsibility and primary residence must be ordered now;

2. The circumstances of this case are so compelling that the Court must intervene now. The father should not have to wait for a trial which may not occur until April 2025;

3. The children’s resistance amounts to a material change in circumstance since the Order of Justice Campbell made on October 5, 2023;

4. The best interests of the children require the change, especially because of the mother’s inability to support the father’s relationship with the children. In effect, he argues the mother is effectively leaving it up to the eight and five-year-old children to decide whether to go for parenting time and this is unacceptable; and

5. Finally, the jurisdiction to make the order requested is found in the Divorce Act, RSC 1985, c 3 (2nd Supp), s. 16 and Family Law Rules, O Reg 114/99, r. 1(8).

The Mother

[21] The mother agrees that the children’s refusal to go with the father for parenting time constitutes a material change in circumstances. She requests the Court consider the evidence and the relief sought from the children’s perspective. The mother argues that because the trauma experienced by the children in relation to parenting time is so great, it should be suspended or supervised. She claims that she has been supportive of the father’s relationship with the children. She has enrolled the children in counselling. The mother also asks that the Court consider this case in the context of past family violence. She attributes the children’s behaviour to the father’s conduct towards them.

The Children’s Lawyer

[22] Based on his investigation to date, the Children’s Lawyer does not support the request made by either party. Counsel stated that the children have experienced trauma and that is the basis of their behaviour. The Children’s Lawyer did not make submissions on the source of that trauma. He did not have the consent of all the parties to give evidence from counsel table. [6]

[23] Children’s counsel argued that the relief sought by both parties was drastic in the circumstances. Instead, he submitted that clinical intervention should be attempted.

Discussion

[24] The father relies on two recent decisions where, on an interim basis, decision-making responsibility and primary residence were changed from the aligned parent to the rejected parent: G.R.G. v. S.G., 2023 ONSC 6162, and Y.H.P. v. J.N., 2023 ONSC 5766.

[25] It is clear that in circumstances that are “so compelling, of such an exceptional nature, and the alienation of [the child] against the father is so severe, that not making the temporary order requested would cause [the child] emotional harm”: Y.H.P., para. 7.

[26] In Y.H.P., the mother (aligned parent) alleged that the child, who was 12 years old, was sexually abused by the father (rejected parent). None of the many investigations verified this allegation. When the child’s therapist supported in-person parenting time with the father, the mother terminated the child’s therapy. Despite a consent order, the mother claimed the child did not want to see the father. At parenting time exchanges, the child refused to get out of the car. The mother sabotaged the work of the reintegration therapist. In Y.H.P., the Court was satisfied on the record before it that the child was being alienated against the father.

[27] In this case where there is conflicting and untested affidavit evidence, I am not able to find or infer, as requested by Mr. Clayton, even on the balance of probabilities, that the mother is the cause of the children’s resistance. There is evidence of the mother about the father’s behaviour that, if accepted, would give rise to justifiable estrangement on the part of the children. This, of course, is vehemently denied by the father.

[28] I do agree with the father that it does not appear that the mother is sufficiently exercising her parental responsibility to have her eight-year-old and five-year-old children attend for parenting time. However, if the evidence of the children’s trauma being caused by the father is accepted, then forcing the children without prior counselling or coping skills could be psychologically harmful to them.

[29] In Y.H.P., the Court noted that ongoing judicial oversight is critical when a reversal order is made. The order in that case was very detailed in setting out what next steps were to take place. These included allowing the father to retain a clinician to obtain help for the children as he decided was needed, including reintegration therapy. An aftercare professional was appointed to conduct aftercare services for the child and parties.

[30] In the case before this Court, these steps were not addressed as part of the father’s plan. There is no evidence about what potential effect a 120-day blackout period would have on the children or the resources to be put in place to help them with the change in parenting plan.

[31] One aspect of the order made in Y.H.P. was the appointment of a case management judge. In the case before the Court, I have now been appointed as case management judge and will hear and determine any motions and will hold case conferences as deemed appropriate.

[32] As case manager, I will place this case on the September 2024 trial list to have it dealt with as an urgent matter.

[33] In the second case, G.R.G., the mother alleged the father was abusive. She breached many court orders. After an order was made, she would make further allegations to police and the Children’s Aid Society. None of these allegations were verified. There were 20 orders by five different judges. As was the case in Y.H.P., the Court found there to be such compelling circumstances that the parenting plan had to be reversed because the risk of the child remaining in the mother’s care outweighed the unknowns associated with the father’s request.

[34] On the record before the Court in this case and for the reasons I have set out above, I am not able to conclude that removing the children from the mother at this time outweighs the unknowns if the father’s request is granted. I accept the submissions of the Children’s Lawyer in this regard.

[35] In the case before me, the Children’s Lawyer is involved and a clinical assist is very likely to be assigned shortly. Evidence from this source will be of great assistance to the parties and the Court going forward.

[36] Also in this case, a Trial Court will be in a much better position than I am on this motion to make the factual determinations to support, or not, the father’s request. In particular, the Court will be better able to determine whether the mother is willing to support, in a meaningful fashion, the father’s relationship with the children.

[37] For these same reasons, I do not find that it is in the children’s best interests to suspend parenting time or require it be supervised, as requested by the mother.

[38] There was a modest advance in the children’s willingness to engage with the father on May 10, 2024. The opportunity to allow this to continue and possibly expand, with the assistance of clinical intervention, is more in keeping with the children’s best interests than is an order for no, or suspended, parenting time.

[39] The facts of this case, at this time, make it difficult to determine what schedule of parenting time for the father will be in the best interests of the children pending trial. Any parenting time plan must be flexible so as to respond to the children’s emotional and psychological needs. Clinical intervention is expected to be attempted.

[40] The mother must demonstrate her support of the children’s relationship with the father by attempting through different methods to have them attend for parenting time. For example, if the children found comfort in having members of the father’s family present for his parenting time, then this should be arranged through counsel.

[41] It is important that there be legal and clinical collaboration to ensure the flexibility necessary at this time to find the least traumatic reintegration plan for the children.

[42] As case management judge, I will schedule regular and as-needed attendance to monitor the steps that are being taken. If the evidence going forward discloses a clearer picture of the source of the children’s resistance, a further request to vary the parenting plan may be made.

[43] For these reasons, I find that it is in the best interests of the children that the existing parenting orders continue, varied only to provide that the parties attempt to have parenting time continue as currently ordered.

[44] The parties should continue to try and build on the modest success that occurred on May 10, 2024. This will require communication between the parties, either directly or through counsel. In this regard, the parties are to remember that the Talking Parents communications they exchange may be seen by others, including the Court. The communications that have been put before the Court to date reflect very poorly on both parties.

[45] I realize that in a high conflict case, it is usually best to provide a detailed multi-directional order. On the conflicting evidence before me, I am not able to do that at this time. That is why I am leaving it to counsel and the parties to try different models to engage the children with their father. As there will be judicial oversight by me on a regular basis, modifications to this order can be made in an expedited manner.

A Caution for the Mother

[46] It is of concern to me that the mother has not been able, or possibly willing—the Trial Judge will be better able to determine this—to foster that relationship which is so crucial to the long-term best interests of the children. Her failure or inability to do so may well leave the Trial Judge (or this Court) with no choice but to conclude that the father’s plan is in the children’s long-term best interests, so that they may have a relationship with both parents.

Order

[47] For these reasons, an order shall issue as follows:

1. The Applicant’s motion to vary the interim orders regarding parenting time on an interim basis is dismissed.
2. The Respondent’s motion to vary the interim orders regarding parenting time on an interim basis is dismissed.
3. The existing parenting time orders, namely those of Justice Price dated February 21, 2023, Justice Sah dated May 24, 2023 and Justice Campbell dated October 5, 2023, shall be varied only to the extent that the parenting time as ordered shall be attempted and be subject to the effect such attempts have on the children’s emotional or psychological state.
4. It is expected that a clinical intervention be attempted.
5. This case is adjourned to a conference before me on June 10, 2024 at 9:00 a.m. (one hour) in person.
6. This case is to be added to the September 2024 trial sitting of the Court, to be dealt with as an urgent matter.

[48] If the parties wish to make submissions regarding costs, they are to be limited to three pages double-spaced, 12-point font, together with a Bill of Costs and any Offers to Settle. The Applicant is to provide his submissions within seven days of the release of this endorsement and the Respondent within seven days after being served with the Applicant’s submissions.

[49] If submissions are not filed in accordance with this timeline, the issue shall be deemed settled and no order shall issue.

“Justice B. Tobin” Justice B. Tobin Date: May 23, 2024

[1] The parties disagreed on the summer parenting time schedule. [2] This was the word used in the mother’s affidavit of November 30, 2023. [3] This was the father’s evidence as contained in his affidavit sworn December 4, 2023, at paragraph 21. [4] The videos were not put in evidence. [5] See affidavit of Applicant sworn May 18, 2024, para. 9. [6] See: Strobridge v. Strobridge, 1994 ONCA 875, at para. 35.