BARRIE COURT FILE NO.: FC-09-1143-01 DATE: 20240604
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Flor Escobar Moran, Applicant -and- Wesley Helmuth, Respondent
BEFORE: Madam Justice S.E. Healey
COUNSEL: Flor Escobar Moran, Self-Represented Brendan McDermott, Agent for the Respondent
HEARD: May 31, 2024
Endorsement
INTRODUCTION
1This endorsement deals with a long motion dated October 20, 2023 brought by the Respondent, Wesley Helmuth. It was initially scheduled to be heard during the November 2023 trial sittings, was not reached, and finally heard on May 31, 2024.
2The Respondent makes multiple requests for relief in the motion, which can be broadly categorized as: a request for a compliance order to address alleged breaches of parenting terms contained in orders dated February 26, 2020 and February 25, 2021, expanded parenting time, makeup parenting time, enforcement, therapy provisions, access to information regarding a child, Anna, termination of a restraining order, possession of Anna’s passport and costs.
3At the conclusion of the argument, I indicated that I was making immediate orders, with written reasons to be released later. Those orders are as follows:
This court orders on a final basis:
(a) The restraining orders dated January 25, 2019 and April 9, 2019 shall terminate immediately, and any other order that incorporates those restraining orders shall be changed to delete any requirement of a restraining order.
This court orders, on a temporary basis:
(b) This court declares that Flora Jane Helmuth born December 11, 2005 remains a child of the marriage within the definition of s. 2(2) of the Divorce Act.
(c) The Respondent, Wesley Helmuth, shall have direct access upon his request to the records pertaining to the children, Flora Jane Helmuth and Anna Marie Helmuth born October 18, 2007, without the necessity of a signed consent from the Applicant, Flor Escobar Moran, including but not limited to:
(i) Clinical notes and records from the children’s family physician and dentist, any walk-in clinics attended, and from any further doctor or other regulated health professional from whom the children have sought or will seek services;
(ii) The Ontario School Record and any other records maintained by the Simcoe Muskoka Catholic District School Board and/or St. Joseph’s Catholic High School;
(iii) Notes and records from psychologist Deborah Alton;
(iv) Notes and records from Sue Cook; and
(v) Any further therapeutic records relating to the children.
(d) The Applicant shall surrender each and every one of the children’s expired or renewed passports in her possession to the Respondent by no later than Monday, June 3, 2024.
(e) The Applicant shall immediately comply with paragraph 1 of the Order of February 26, 2020. Specifically, she shall ensure that the Respondent shall have access/parenting time with the children, both Flora and Anna, on Monday nights from 5 p.m. to 7 p.m. commencing Monday June 3, 2024.
(f) The Applicant shall meet the Respondent with the children at the Barrie Public Library. She shall not permit the children to remain in the vehicle. She shall walk with them to the front doors of the library and greet the Respondent in a friendly and civil manner and then immediately walk away after saying goodbye to the Respondent and the children, without engaging in any further discussion with the Respondent.
(g) The Respondent is at liberty to exercise his parenting time with the children at any location, including his home, in his sole discretion. The Respondent shall drive the children home at the end of the parenting time.
(h) For each time that either one of the children is unavailable for this parenting time, the Applicant shall be fined $100 per child, which fine shall be deducted from the child support payment. The only exception to this is for incapacitating illness, in which case the Applicant shall produce a doctor’s note on the day of the parenting time.
(i) The children and the Respondent shall reengage with Deborah Alton for therapeutic reintegration at the Respondent’s expense. The Applicant shall ensure that both children attend the appointments. The Respondent shall provide transportation to and from the appointments.
(j) This motion shall return before me on June 28, 2024 at 2:15p.m. for two hours by Zoom to determine whether any progress has been made with respect to compliance with court orders, to consider the implementation of the additional recommendations made by Deborah Alton at paragraph 3 of her recommendations, to order make up time, to consider, if necessary, a change in the residential arrangements, and to deal with the issue of costs.
(k) Each party may file an affidavit for the next appearance that shall not exceed eight pages in length, excluding exhibits and cost outline.
4These are the reasons for making such orders.
Procedural History
5The parties have been separated since January 19, 2011. They have two children, Flora, born December 11, 2005 (age 18) and Anna born October 18, 2007 (age 16). Since separation, the children have lived primarily with their mother. Remarkably, despite the passage of over a decade there has been no final parenting order made.
6The procedural history of this matter is very long and there have been many parenting and other orders. Reference should be made to the affidavit of the Respondent sworn October 20, 2023, for a comprehensive review of the attendances and orders made. What is very clear from the record is that the Respondent has had to continuously persevere to have parenting time, or any contact with his daughters at all. There has been a gradual and steady erosion of his relationship with his daughters, which erosion, the evidence patently indicates, has been fostered and encouraged by the Applicant.
7To jump ahead to December 14, 2016, an order was made on consent that provided the Respondent with parenting time every other weekend and on Mondays, Wednesdays and Fridays from after school until 7:00 p.m. This was an expansion of parenting time from an earlier order.
8The Respondent’s evidence is that this arrangement went on largely without incident until January 2019. On January 25, 2019, the Applicant brought a motion without notice to suspend his parenting time and seeking a restraining order. Both were granted. That order was extended on March 14, 2019, but modified to allow contact between the Respondent and the children for the purpose of reunification therapy with Sue Cook. The restraining order was again extended on April 9, 2019 by McDermot, J., to remain in place until further order. The endorsements show that during and since that time, the focus of the court was on reconciliation counselling, and the basis for the restraining order was never meaningfully reviewed.
9The parties and the children attended reunification therapy with Sue Cook in 2019. The Applicant terminated Sue Cook’s services in 2019 because she believed her to be biased in favour of the Respondent. In her affidavit, the Applicant explains that in December 2019, Anna refused to continue counselling because she felt it was very traumatic, with the Respondent spending a lot of time associating blame and talking over her and yelling. Her evidence is that “this behaviour was confirmed by Ms. Cook”.
10To the contrary, Ms. Cook reported nothing of the sort to Deborah Alton, a registered psychotherapist who authored a report dated July 18, 2022. Sue Cook confirmed that the Applicant was the parent who terminated her services due to alleged bias.
11The parties also engaged the services of JMS Law in July 2020 and attended the Cooperative Parenting Program. The Applicant described this service as unhelpful, with no progress made; the Respondent’s evidence is that after the program ended the Applicant did not cooperate or collaborate on issues about the children as they had been taught.
12Then the parties, by court order, engaged in a family intervention process (reunification) with Deborah Alton, between February and November 2021. The Respondent’s affidavit states that a total of 37 appointments were held involving various family members alone or in combination. Deborah Alton produced a detailed report with recommendations in July 2022, which is detailed below (the “Alton report”). The Respondent’s evidence is that once Ms. Alton’s involvement ended, the Applicant resumed a combative and non-conciliatory approach and did not pursue any of the recommendations.
13The Respondent has not had meaningful parenting time with Anna since the summer of 2022. He has not had contact with Flora since the family therapy ended in November 2021.
14The Applicant blames the Respondent’s behaviour for their daughters’ unwillingness to spend time with him throughout the years, citing an over-bearing, controlling, punitive parenting style and “abuse”. She believes, and submitted to the court, that his ongoing legal efforts to see and have a relationship with his daughters was done “out of revenge”. The Applicant has also taken the step of alleging that he had sexually assaulted the children, which prompted CAS involvement many years ago.
15The Respondent blames the Applicant for placing the children directly in the middle of the conflict since its inception, addressing adult issues in front of the children, having an uncontrollable temper directed at him in their presence, asking Flora to help draft material for court, speaking to and about the Respondent in derogatory terms in their presence, allowing the children to choose whether or not to attend during his parenting time and failing to impose reasonable parental limits and expectations on the children - in effect, doing all possible to undermine his involvement in their lives.
16The evidence on this motion supports the Respondent’s version of events quite definitively.
17While there is an OCL report from 2012 that recommended full custody to the Applicant and supervised parenting for the Respondent, with him to undergo a complete psychological assessment - a report to which Mr. Helmut filed an objection - there is little support for these recommendations in the evidence on this motion. Mr. Helmut did carry through and underwent a full psychological assessment by Dr. Carol McMaster. Her report concludes that she found no psychopathology that would interfere with Mr. Helmut’s ability to parent.
18Throughout the years, Mr. Helmut has taken various steps in addition to those referenced in these reasons to attempt to defuse the conflict and learn better coparenting strategies. These are: marriage and individual counselling; Considering the Children workshop; Triple P Parenting; a family mediation course in 2020 and the parenting coordination courses offered through AFCC in 2020.
Flora Remains a “Child of the Marriage”
19This motion seeks relief only in relation to the minor child, Anna. However, I have made orders that involve Flora also.
20The reason for this is that after reviewing the Alton report, it is apparent to me that Flora has had significant difficulties coping with just about everything. At the time of her involvement with Deborah Alton, Flora was 15 years old. Her mother had given her permission to not go back into the classroom by the end of grade 8, as school was a struggle for her due to shyness and anxiety. Her teachers saw her as bright but withdrawn. The clinician went to some lengths to involve the school psychologist to assist Flora, who stated that she wanted to go to school, the psychologist even walking through Flora’s new high school with her. But a few days later Flora’s anxiety got the better of her and her mother again allowed her to remain at home. Up until this past year, Flora’s academic experience has been to meet with a teacher once a week to obtain and hand in her assignments. She has been totally deprived of the normal social experiences of a teenager, or any enrichment from extra-curricular involvement in activities with peers.
21Although the Applicant assured the court during the motion that Flora has now graduated from high school, the Respondent provided evidence that as of March 2023, Flora had only 22 of the 30 credits needed for her diploma.
22On making inquiries with the Applicant during the motion, this court learned that Flora does not hold a job and has no specific plan for her future.
23At 15, Flora reported to Deborah Alton that she rarely leaves the house and has no friends other than sometimes having contact with a daughter of one of her mother’s friends. Dr. Boer, the school psychologist, reported to Ms. Alton that she had made a referral for Flora to attend the day program at Royal Victoria Hospital for internalizing disorders, but Flora did not attend as she was not committed and was fearful of school buses.
24The Alton report contains the following comments:
Without a further court order requiring an increase in normal parenting time, together with ongoing multi-faceted family therapy with trained reunifications specialists, the children remain empowered to reject their father and his authority as a parent - there is no counter-balancing or corrective influence from their mother and no evidence she has sufficient insight about her role at this time. In addition each of the children seem to have challenges with anxiety, to varying degrees, and it is evident that Flora Jane is unwittingly being supported to rely upon avoidance as her coping strategy. Unfortunately, continued avoidance of anxiety- provoking circumstances reinforces a child’s avoidance/rejection. The avoidance becomes the problem , not the solution to manage anxiety. It is evident that Flora Jane’s world is growing smaller and smaller as a result of her reliance on avoidance, to avoid all situations that may have uncomfortable elements (including, but not limited to, time with her father), such elements negating all of the opportunities for joy and accomplishment that come from braving forward. This avoidance pattern is likely to continue without coparental commitment to support her to acquire appropriate interpersonal problem-solving skills and healthy strategies to manage anxious feelings, and we are concerned about the long-term emotional effects on Flora Jane, and how Anna may be affected.
25The Respondent continues to pay child support for Flora and has not brought a motion to terminate such support. The Applicant confirmed upon questioning from the court that Flora remains entirely dependent upon her parents to cover her living expenses.
26I have no evidence that the situation outlined in the Alton report has dramatically changed for Flora. Accordingly, I believe that she meets the definition of a child of the marriage under s. 2(2) of the Divorce Act. Even though Flora is 18 years old, she remains under the charge of her mother and unable to withdraw by reason of her stunted emotional and psychological development, lack of employment and lack of academic progress. She remains dependent on her parents for her financial sustenance. The evidence also indicates that she has never developed the capacity to make reasoned decisions for herself where her father is concerned and has been unable to do so throughout her formative years because of the influence of her mother.
27As a demonstration of her altered thought process, when Flora was asked by Deborah Alton to explain how her father was “abusive”, she explained that when she and Anna did not listen to his rules, he told them to go to their room and they would lose privileges. She recalled the last time at her father’s home when Anna was not listening to her father and he told her to go to her room; when she refused, he pulled Anna into her room. As explained below, this led to the children sneaking away from their father’s home and returning to their mother’s, a move that the Applicant made no efforts to correct and instead led to her moving for an ex parte restraining order.
28Sue Cook discussed this incident with Deborah Alton and described the children’s distorted thinking:
Father went to pick them up from school, which they interpreted as dad threatening them; Father wanted them to do dishes, which they again interpreted as dad threatening them; justifying sneaking out of the house and not returning because they viewed dad as too strict.
29Flora also listed things that her father used to “push her too hard to do”: learning etiquette such as no elbows on the table, doing chores, having manners, and not being late when expected somewhere. By contrast, she talked about how her mother allowed her to do what she liked, and that there were generally no consequences given by her mother for bad behaviour.
30In summary, it is for all the wrong reasons that Flora has been empowered to reject her father. It is obvious to any reasonable person that Flora desperately needed and still needs a more normalized existence, if it is not too late, including a healthy relationship with her father. The court will use its jurisdiction over Flora as a child of the marriage to attempt, in her best interests, to assist her to break down the barrier created by her mother’s relentless campaign to isolate her from her father.
Restraining Order
31I have reviewed the affidavit of the Applicant filed in support of the restraining order.
32The Respondent’s affidavit sworn October 20, 2023 in support of the motion before the court goes into detail about the events that immediately preceded the Applicant obtaining this order. As discussed above, his evidence is that the children were at his home and balked at having disciplinary measures invoked (losing privileges and being grounded to their rooms) when they refused to do the dishes. The children decided to sneak away and go to their mother’s, and she willingly facilitated that decision. When he went over to her home, Ms. Escobar Moran refused to engage in any meaningful discussion about the dynamics or the children’s behaviour. The next day was also his court-ordered parenting time, but according to the Applicant, he should have understood that the children had decided that they did not want to return to his house. When he went to pick up the children after school on Monday in the usual course, they were not there and the school refused to say whether they had attended that day. The Applicant did not answer his calls. He went to her house to see if the children were there. He waited and saw them return in a taxi, having evidently gone shopping. Similar events happened on the Wednesday, his next scheduled parenting time. The children were not at school. He went to the Applicant’s house. She did not answer his calls.
33In her affidavit in support of the restraining order, the Applicant characterized this as surreptitious, threatening and controlling behaviour (my words, not hers). She told the court that the Respondent had shown strange behaviours – on January 14, which was the Monday, “he went to school office and behave aggressive and later he waited for me by my place and he smiled to me”. And on January 16, which was the Wednesday, he was “hiding” and followed her and one of “her” daughters in the dark.
34When she recounted these events to Deborah Alton years later, many more details were given. According to the report, the Applicant was aware that the children were disciplined for not doing the dishes, and that even though she explained to the Respondent that the children did not want to go with him after that, he came to pick them up at the school nonetheless. He was allegedly yelling at the principal and threatening him. She conveyed to Deborah Alton that the principal asked her if the Respondent had a gun, as he seemed dangerous, and that the principal was insistent that she obtain a restraining order because “you have to do it, we don’t know what this person is going to do and do not want him coming here to the school anymore”.
35None of these details are contained in her affidavit in support of her motion for a restraining order. Nor is there independent affidavit evidence to verify these events from any school personnel.
36When a story changes over time and more detail is added, especially in circumstances where the speaker may have reason to believe that she might obtain sympathy from the listener, one can find one of the hallmarks of fabrication.
37The other evidence in the Applicant’s affidavit filed for the restraining order is likewise unreliable. She stated that she feared for her life and her children’s safety, citing charges of assault in 2007 and harassment in 2012. The Respondent explained these charges arose from manufactured complaints made by the Applicant, neither of which resulted in convictions. She cited a CAS concern about inappropriate discipline; there has never been a protection proceeding. She claimed that he was waiting outside of her work on various dates, including on January 14 and 16, 2019; he said that he does not even know where she is employed. He explained that he smiled at her in relief that day once he saw that their daughters were okay.
38When Deborah Alton interviewed the children, they gave no indications of physical harm from their father. They said their mother had told them that they did not have to return to his home if they were afraid of him. When asked if he ever hit her, Flora replied “not really but my mom told me dad didn’t treat her well and she is afraid of him”.
39The Applicant submits in her affidavit and argument that there were changes to the restraining order for therapy and for the children to have parenting time “which is all that is really needed for the Respondent to have parenting time”.
40This restraining order has been in place for almost five years. It should have been terminated years ago, especially when there has been clear evidence that the Applicant has used it in her favour as a justification for lack of contact between the children and their father. Sue Cook indicated that Flora was aware of the restraining order and questioned her ability to be alone with their father in a room as a result.
41A restraining order is initially made, as it likely was in this instance, to provide a layer of protection out of caution before the person who is restrained can respond with their own version of events. In the usual course, a restraining order is not intended to last long term. A restraining order should only remain in force where there is a clear and pressing need to ensure the safety of a party or child. It is a quasi-criminal order that seriously infringes on a person’s liberty, creating the ever-present threat that they may inadvertently breach the order, or that the opposing party may falsely accuse them of doing so. It sends a message of wrong-doing and danger, which can become a powerful weapon in the hands of a parent intent on instilling such a feeling in the children of the parent who has been restrained.
42The evidence on this motion satisfies me that there was never a need for the restraining order. Not only did the Applicant not provide full disclosure to the court about the events surrounding January 14 and 16 and, in doing so, created a very misleading picture about the Respondent’s actions in that time period, her allegations of past abuse or violence are not supported by the evidence.
Breaches and Compliance Order
43The Respondent alleges that the Applicant has not complied with paragraphs 1, 2 and 5 of the Order of Jain, J. dated February 26, 2020. Those provisions are as follows:
- The Respondent Father, Wesley Helmuth, shall have access/parenting time with the children Flora (14) and An[n]a Marie (12) on Monday nights from 5 p.m. to 7 p.m.
- Such access shall commence on Monday March 3, 2020 and continue each Monday until further court order or consent of the parties.
- Neither party shall speak negatively about the other in front of the children or use their time with the children to speak about adult issues or this legal matter.
44The Respondent also alleges that the Applicant has not complied with paragraphs 2 and 7 of the Order of February 25, 2021. Those provisions are as follows:
- Ms. Escobar shall follow the recommendations of Ms. Alton regarding the attendance of Flora Helmuth born December 11 2005 and/or Anna Helmuth born October 18 2007 (hereinafter referred to collectively as “the children” or individually as “Flora” and/or “Anna”) at counselling.
- Ms. Escobar shall comply with the existing order of Justice Jain dated February 26, 2020 with respect to An[n]a, with the variation that if the McDonalds is closed then Mr. Helmuth’s parenting time shall occur at the Meridian in downtown Barrie, unless the parties agree in advance and in writing to another venue.
45The Respondent had been deprived of 50 parenting sessions at the time that his affidavit was filed, and his agent, Mr. McDermott, advised that this number has increased to something in the neighbourhood of 65. At paragraphs 122 to 125 of his affidavit, the Respondent has outlined the ongoing and flagrant breaches of the parenting terms of the orders ever since they were made. There is ample evidence in the material filed for this motion that this has occurred because the Applicant has taken the view that the children are old enough to make their own decisions about whether to spent time with their father, and this has been a perspective that she has held and actively supported for some time. To the extent that she feels bound by the Orders, she interprets her obligation as simply to appear at the appointed time, only with Anna, and then to leave once Anna refuses to engage.
46At the time of the Alton report, the Applicant stated that she would support the children’s decision to have contact with the Respondent “if they desired”, but she did not want to push them to see their father as she worried about the negative repercussions this would have on them and on her own relationship with them. The report states:
… in her view, the children's resistance to seeing their father include but are not limited to Mr. Helmuth’s inability to take responsibility, his limited knowledge of what to do with teenagers, and making the children walk when they are tired or cold. She also shared that further manifestations of what she described as abuse include showing up at the school and their home unannounced, not allowing the children to watch certain television shows, and demanding them to do chores with unreasonable consequences and expectations...
47Flora also reported that her mother had told her there was no point in her spending time with her father because “my father will never change”. Not surprisingly, Flora parroted to Deborah Alton that “my father will never change”.
48Deborah Alton commented on Flora’s rejection as follows: “Her perspective included examples that indicate the extent to which Ms. Escobar is reinforcing the children’s resistance and refusal to see their father by providing rationalizations that are harmful to the children”.
49The Alton report also outlines the meagreness of the Applicant’s efforts during unification therapy. During a meeting with Sue Cook, it was agreed by the parents that the Respondent would take the children to a movie. The Applicant never showed up with the children. With Deborah Alton, the team coordinated two family activities, one being a barbeque. Although encouraged to join, the Applicant preferred to sit in her car. It was only when the team explained the importance of her participation that she opted to join in.
50In her affidavit filed for this motion, the Applicant has stated the following in relation to Anna:
The Respondent claims that multiple Court Orders state that it is my obligation to deliver, or cause the Child to be delivered into and remain in his care. This is not at all true. Both the 2020 Order and 2021 Order state that I must ensure that the Child is at the location agreed upon for the Respondent’s parenting time.
The Child’s struggles with access and outright refusal to interact with the Respondent will most likely not be improved by increasing parenting time as the Respondent has proposed. However, I believe the Respondent’s parenting time may benefit if it were to take place in the Supervised Access Program of Kinark Child and Family Services at 34 Simcoe S. #301, Barrie, ON. The ability to interact with each other in a safe, neutral and child-focused setting may improve parenting time and the relationship between the Respondent and the Child.
51On the evidence, I have no difficulty finding that the Applicant has not complied with paragraphs 1 and 2 of the February 26, 2020 Order and paragraph 7 of the February 25, 2021 Order. Courts have been clear that a parent must not simply leave the decision to interact with the other parent in the child’s discretion, as it is an abdication of parental responsibility and a breach of that party’s positive obligations under a court order: Jackson v. Jackson, 2016 ONSC 3466, at para. 63; Godard v Godard, 2015 ONCA 568, at para. 28; Perna v. Foss, 2015 ONSC 5636, at para 20; Smart v Belland, 2012 ONSC 1124, at para. 10. While I recognize that it may be significantly more difficult to persuade teenagers of Anna and Flora’s ages to attend parenting time, in this case there is no evidence of active encouragement or withholding of privileges. There is only evidence of her active encouragement of estrangement from Mr. Helmuth.
52In terms of paragraph 5 of the February 26, 2020 Order, the prohibition against speaking negatively or involving the children in this legal matter, this is addressed at paragraph 120 of the Respondent’s affidavit. Examples of the Applicant’s non-compliance are: asking Flora to fill out and provide her father with a travel consent; Flora being aware of the restraining order and other information as noticed by Deborah Alton and her team; Flora assisting her mother to prepare court documents; and on June 19, 2023, saying in front of Anna “I have a restraining order” when he was attempting to speak with Anna during his scheduled parenting time.
53Again, the evidence satisfies me that the Applicant has not complied with paragraph 5 of the February 26, 2020 Order, as it is part of her modus operandi to use the children to triangulate them in the conflict.
54The Applicant has also not complied with paragraph 2 of the February 25, 2021 Order, to follow the recommendations of Ms. Alton for the children at counselling. Deborah Alton made six recommendations in her report. They are:
- It is imperative that both Mr. Helmuth and Ms. Escobar agree that re-establishing contact between Flora Jane and her father is in Flora Jane’s best interest irrespective of the differing perspectives on the strained father-daughter relationship. Given the current court order, this will require a change to the order or cooperation from Ms. Escobar to exert her parental authority and apply moral persuasion to expect Flora Jane to have a relationship with her father.
- It is further recommended that Mr. Helmuth engage in his parenting time in a normalized setting as the arrangement of meeting Anna in the community gives a distorted message that undermines his parental authority and the child’s perceived sense of safety. This will also require Ms. Escobar to accept the appropriateness of Mr. Helmuth’s parenting skills and work together to align their messaging and expectations of the children.
- A continuation of ongoing out-patient multi-faceted family therapy to further the work on establishing healthy relationships between Flora Jane, Anna and Mr. Helmuth and Ms. Escobar. Such a commitment to multi-faceted family therapy ought to be court-ordered, with the following details necessary to support the therapeutic work: a. a requirement for therapeutic updates to the court at an interval set by the court; b. an essential component, that the court order include a step-up schedule with specific dates/intervals for adding time in pursuit of the agreed upon schedule. an elaborated protocol for Coparent Communication to be adhered to by each parent. This includes use of Our Family Wizard (OFW) as the coparent communication platform, with consent provided by each parent to allow the lead therapist access to the OFW account to monitor communication when needed; rules of engagement; and, expectations for information-sharing.
- It is also recommended that Ms. Escobar works with a resist-refuse dynamics therapist to help her understand how compromised Flora Jane is currently and how delicate her role is in confidently pushing her towards safe and developmentally appropriate activities and relationships.
- The parents develop a more comprehensive Parenting Plan to promote neutral and functional coparenting, and which includes guidelines and principles pertaining to parenting within a conflictual post-separation relationship. In particular, the agreement should include clauses providing parameters for co-parent communication and rules of engagement (per #3.c., above),and family conflict resolution mechanisms to facilitate a healthy and functional parent-parent relationship, and positive parent-child relationships. Once these additions are finalized, it is recommended that it be made into an order to assist with enforceability and accountability.
- It is strongly recommended that the contents of this report NOT be shared with the children by either parent, which could potentially adversely affect any future reintegration and would most likely further lend to further alignment with mother and rejection of father.
55This last recommendation was made in bold writing in the Alton report.
56The Applicant’s feelings about further therapy are:
…I believe that I gave these services my best efforts and we did so for approximately a year without any progress. I continued to encourage the Child with the “narratives” that the centre recommended but she was upset by this and it seemed to be affecting our relationship. I agreed to participate in the process and did so for a time period far in excess of the Order. At this time I do not know what progress can be made that could not be made in the year we participated.
57Needless to say, the Applicant is not motivated to undertake any of the recommendations made in the Alton report, nor has she provided any evidence of having done so.
58While the recommendations in the Alton report are obviously more far-reaching, at a minimum both children need to have professional assistance if there is going to be any repairing of their relationship with their father. The Applicant has not been ordered to engage herself, as there is little point.
Anna
59While the Alton report focused primarily on Flora at the time, there is also concerning evidence about Anna in the evidence filed for this motion.
60Her mother’s affidavit states “…She is doing exceptionally well in school and would not form any thoughts, opinions or decisions without her own reasonable judgment”.
61The Respondent has provided contrary evidence about her academic progress. At the end of the February 2023 semester, Anna had missed approximately one-third of all classes for each of the four subjects she was studying. She has had to retake her English and Career Studies credits. This aligns with the Applicant’s lack of enforcement of school attendance, as discussed in the Alton report.
62The Alton report, which made observations of Anna when she was approximately 14 years old, confirmed her father’s description of her as being shy and quiet to the point of sometimes presenting as mute, and that verbal communication “evidently brought a level of discomfort and apparent anxiety for her”.
63Other than her own now-ingrained resistance and her mother’s agenda, there is no evidence that maintaining contact with her father would be detrimental to Anna. To the contrary, the Respondent appears to have nothing but his daughter’s best interests motivating this continued litigation.
Voice of the Child Report
64The Applicant requested that an order be made requiring that the parties obtain a Voice of the Child Report. There was no motion before the court for this relief, and even if there was, it would not be granted at this time.
65The evidence of the children’s preferences is well known. A report that lays that out would be redundant and not insightful. The Alton report, however, is helpful as not only does it set out their preferences, but it explains why the situation has developed of one parent being favoured over the other.
Fine
66My order attempts to incentivize the Applicant to no longer allow the children to dictate whether they will attend parenting time with their father by imposing a fine of $100 per child for each time the children do not attend. It is intended to motivate her to clearly communicate to the children that she expects them to spend time with their father.
67Such fines will be deducted, if necessary, directly from the child support for the month of June and ongoing, if necessary. Such a sanction will have considerable significance for the Applicant, who is of modest means.
68Rule 1(8) of the Family Law Rules, O. Reg. 114/99, gives the court broad authority to make “any order that it considers necessary for a just determination of the matter” where a party fails to obey an order.
69As I have found, the Applicant has not complied with several provisions of two orders. There is no reason why sanctions should not be imposed. Ontario courts have refused to exercise the discretion to not impose sanctions in cases in which the non-compliant party has shown chronic, deliberate willful, or intentional non-compliance with court orders, has no credible explanation for the non-compliance, or has the ability to otherwise comply: Oliver v. Oliver, 2020 ONSC 2321, at para. 40. This describes a category of litigants into which the Applicant squarely falls.
Passports
70I have ordered that the children’s passports, both expired and renewed, be deposited with the Respondent at the next parenting session. The reason for this is that throughout the evidence there is the underlying issue that the Applicant has indicated that she and the children will return to live in Peru when they are old enough to decide to do so.
71At this point there is a real concern in the court’s mind that the Respondent’s relationship with his daughters will be permanently frustrated by the Applicant encouraging and facilitating such a decision.
Access to Information
72There is no reason for the Respondent to not have direct and unfettered access to information about the children’s academic and health situations, subject to the provisions of other legislation such as the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.
73The court orders that an order shall issue in the terms of the endorsement dated May 31, 2024, without the necessity of approval as to form and content by the Applicant.
Healey, J.
Released: June 4, 2024