Court File and Parties
COURT FILE NO.: FC-15-1216 DATE: 20240903 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Michelle Williams Applicant – and – Sornia Archer Respondent
Counsel: Self Represented, for the Applicant Self Represented, for the Respondent Sandra Grant, for the Office of the Children’s Lawyer
HEARD: November 29, 30, December 1, 5, 6, 7, 2023; January 26, February 14, 16, 20, 21, 22, 23, May 21, 22, 23, 2024
Reasons for Ruling
P.W. NICHOLSON J.
Background
[1] Ms. Archer is the biological mother of the child, DAC, born in, 2010. She was the primary caregiver for the child from his date of birth until July 2010. Mr. Andrew Anthony Cole is the father of the child. Mr. Cole has not participated in these proceedings. He did not participate in the trial.
[2] Ms. Archer is also the biological mother of the child, LP, born in 2003.
[3] Ms. Williams and her husband, Mr. Waithe, assumed care of both children at some point after 2010. Mr. Waithe has not participated in these proceedings for many years. He did not attend the trial.
[4] At the time the child, D, was born, Ms. Archer was in an abusive relationship with an intimate partner, and she had to live in a women’s shelter. After D’s birth, Ms. Archer had no financial support from either of her children’s fathers. She was unable to work because she had just given birth.
[5] Ms. Archer’s abusive partner promised to pay her debts and provide her a stable future if she went to Australia with him. She was hesitant to travel with him. However, due to her financial position, she finally agreed to travel with him along with the two children. She did not have suitcases and requested that her partner provide her with suitcases. He did. Just before the travel, her partner told her that he had to deal with some emergency work in Canada and he would join her in Australia shortly. As soon as Ms. Archer landed in Australia, she was pulled over by immigration and was arrested for drug trafficking. There is some disagreement about how much cocaine was found in Ms. Archer’s suitcase. It was between 2 to 10 kilograms. By her own admission, she had foolishly agreed to take drugs to Australia for money. This was in July of 2010. She was convicted and sentenced to a prison term of 9 years, of which she served 4 years and 9 months.
[6] At the time of her arrest, the child, L, was 7 years old and the child, D, was 2 months old.
[7] In all court documents filed for this Motion to Change, Ms. Archer has alleged that an abusive partner coerced her to take the drugs with her to Australia. In previous court documents, Ms. Archer said that a friend in Canada offered her money if she would take drugs to Australia. During the trial, Ms. Archer has alleged that the Applicants, Ms. Williams and Mr. Waithe, were in some way involved in the drug transaction that resulted in her arrest in Australia. She did not provide any specific details about this in her testimony.
[8] Upon Ms. Archer’s arrest, the children were placed in foster care through the Department of Children Services in Australia. Ms. Archer visited with the children on average three times a week while they remained in Australia. After a few weeks of investigation, the children were brought back to Canada by child protection personnel and placed with the Toronto Children’s Aid Society on August 14, 2010. The children were then placed into the home of Ms. Archer’s friend Ms. Shundell Williams, the sister-in-law of Ms. Williams. At this time, Ms. Michelle Williams was in Australia. According to Ms. Williams, she went to Australia to see if she could assist Ms. Archer. According to Ms. Archer, Ms. Williams attempted to get access to the children in Australia but was denied because she would not submit to a police records check. Ms. Archer claims she had no idea why Ms. Williams came to Australia as she did not request the assistance of this person she claims she hardly knew.
[9] When Ms. Williams returned to Canada, she began to reside in the same home with her sister-in-law and the children. For the first two years after returning to Canada, the children resided with Ms. Shundell Williams. Ms. Shundell Williams facilitated regular telephone contact between the children and Ms. Archer, who remained incarcerated in Australia.
[10] Around 2013, Ms. Michelle Williams moved out of her sister-in-law's home and took the children with her, without the consent of Ms. Archer, according to Ms. Archer. She refused to facilitate contact between the children and the mother in Australia. Ms. Archer attempted to gain access to the children through a Hague Application through the Australian government Attorney General’s office. Ms. Williams, however, was only agreeable to sending pictures and letters and not facilitating telephone or video contact. The gatekeeping began.
[11] Ms. Archer maintains that she never consented to the children being in the care of Ms. Williams. She agreed for the children to temporarily reside with her sister-in-law, Shundell Williams, and her own mother. She said there was a further agreement (but offered no evidence to establish this fact) that upon her return to Canada, the children would be returned to her care.
[12] Ms. Archer also maintains that in response to news of her return to Canada in 2015, Ms. Williams sought the assistance of the Children’s Aid Society of Toronto in gaining a kinship placement of both children with her, but she was unsuccessful. Ms. Williams started a proceeding in family court seeking an order for custody of both children. Despite Ms. Williams having contact information for Ms. Archer in Australia, she never served Ms. Archer with her court application. Furthermore, Ms. Williams, according to Ms. Archer, used a letter with a fraudulent signature to suggest that Ms. Archer had agreed to give custody of her children to Ms. Williams. That letter was the subject of much attention during this trial.
[13] Upon her return to Canada, in 2015, Ms. Archer immediately commenced a family court application. Ms. Williams refused any contact between Ms. Archer and the children, alleging that the child, L, had been abused by Ms. Archer during the time that she was in Ms. Archer’s care. L was reported to be terrified of her mother and did not wish to see her.
[14] On July 15, 2013, service of the application brought by the applicants on the respondents Ms. Archer, and Mr. Cole, the father of D, was dispensed with.
[15] A final order was made by Justice Spence of the Ontario Court of Justice in Toronto on February 21, 2014, granting custody of the child, DAC, to the applicants. The order was silent with regard to contact between the children and the respondent, Ms. Archer. As stated, the applicant, Mr. Waithe, has not participated in these proceedings for many years.
[16] The child, L, born June 16, 2003, is now 20 years old and is not the subject of this trial. Both parties testified that she has not been in the care of Ms. Williams for several years now and did reside with Ms. Archer for periods of time after these proceedings began. She did attend to observe some of the trial, at times becoming very emotional.
[17] On May 1, 2015, Ms. Archer brought this Motion to Change the final order of Justice Spence dated February 21, 2014. She requested an order that she have sole decision-making and primary residency of the child, DAC, born May 12, 2010.
Litigation History
[18] The Motion to Change was filed May 1, 2015, seeking variation of the final order of February 21, 2014.
[19] On June 17, 2015, this family file was transferred from the Ontario Court of Justice in Toronto to the Superior Court of Justice in Oshawa.
[20] On October 20, 2015, the parties attended a first appearance, and a case conference date was set for January 11, 2016.
[21] On January 11, 2016, the case conference was held and two proceedings were consolidated. The matter was adjourned to March 10, 2016, for a settlement conference.
[22] On March 10, 2016, no one attended and a new date was set by the Trial Coordinator.
[23] On June 13, 2016, the respondent mother’s motion seeking the appointment of the Office of the Childrens’ Lawyer (“OCL”), was granted.
[24] On September 28, 2017, Ms. Williams did not attend court as the court was advised she had been involved in a car accident. Her lawyer was removed as solicitor of record. The OCL had completed its report and filed it in the continuing record. Ms. Linda Bleau for the OCL decided not to make any recommendations. Ms. Archer filed a dispute of the report and requested the matter proceed to trial. The trial scheduling conference was set for January 3, 2018, and Ms. Williams was advised to retain counsel and provide an update to the court about the therapeutic therapy being received by the child, L.
[25] A trial settlement conference was set for March 13, 2018. The matter was scheduled to proceed to trial during the May 2018 sittings.
[26] On March 13, 2018, Ms. Williams failed to attend court, and no material was filed by her. Ms. Archer attended court with counsel and filed all material required for the conference. A trial scheduling endorsement was completed. Trial was fixed for the May 2018 trial sittings.
[27] On May 9, 2018, Ms. Williams requested that the trial be delayed. The case management judge indicated that further delay was unacceptable as the motion to change was issued in 2015. She stated in her endorsement, “the proceeding has been delayed a number of times at the request of the applicant. It is not in the best interest of the children involved in this case that the matter continue to be unresolved”. The request to adjourn was dismissed.
[28] On June 1, 2018, the trial did not proceed because of intervening events, namely the involvement of the Durham Children’s Aid Society. The trial was adjourned to the November 2018 sittings.
[29] On November 21, 2018, the matter was called for trial and the parties entered pretrial discussions. On November 22, 2018, temporary minutes of settlement were signed. Ms. Williams agreed to provide Ms. Archer with full medical disclosure for both children. A trial management conference was scheduled for April 15, 2019, and the matter was placed on the trial list for May 13, 2019, peremptory on Ms. Williams.
[30] On March 4, 2019, in response to a motion brought by Ms. Williams, the court requested that the OCL provide assistance through either a s. 112 or s. 89 assessment, to be expedited.
[31] On April 15, 2019, the respondents, Colin Parks, Andrew Cole, and the applicant, Sherlock Waithe, were all noted in default.
[32] On September 12, 2019, a trial scheduling conference was held and adjourned to December 18, 2019. The parties agreed at this time to a final sole custody order in favor of Ms. Williams regarding the child, L, and determined that the reunification therapy would only relate to the child, D.
[33] On December 18, 2019, a combined conference was held and no progress was made. The matter was targeted for the May 2020 trial sittings. The matter was adjourned for a further combined conference to March 13, 2020.
[34] On March 13, 2020, the matter was adjourned to April 17, 2020, on consent, for the parties to continue working with the counselor.
[35] The matter was back before the court on August 6, 2020, and the settlement conference was held. Settlement conference was adjourned to October 23, 2020.
[36] Perhaps further delays were caused by the pandemic, but the court scheduled an urgent settlement conference on May 10, 2021. The matter was placed on the May 2021 trial list. At this point, both parties had counsel and all materials were to be filed electronically and as hard copies. The trial was to proceed as a virtual event due to ongoing fears relating to the pandemic. The trial was not reached during the May 2021 sittings and was put over to the November sittings.
[37] On November 16, 2021, Ms. Williams filed a 14B motion asking to have the trial removed from the trial list because the OCL lawyer had changed. The court granted the request and Ms. Williams was to arrange for a mutually agreeable date for a trial management conference through the trial coordinator.
[38] One year later, on November 17, 2022, the parties attended for a trial management conference. The court determined on that date that the matter was not ready for trial. Ms. Archer did not have counsel because her Legal Aid certificate was canceled. The older child, L, was removed from the proceeding because she was over 19 and, at that time, living with Ms. Archer. The court noted on this date that previous orders had been made for reunification therapy but no therapy was started. The court indicated that the trial would proceed with or without counsel in the May 2023 sittings and was adjourned to a trial management conference on April 5, 2023.
[39] On April 5, 2023, the trial scheduling conference was held, and the trial scheduling conference form was completed. The matter was adjourned to May 11, 2023, to determine the trial date.
[40] On May 11, 2023, the parties entered a consent to deal with the child, D, who commenced therapy with Gary Brooks, and the matter was adjourned to a trial management conference to be held on September 25, 2023. During the course of the trial, I learned that the counselor, Gary Brooks, was selected by Ms. Williams and his fees were paid for by Ms. Archer. D attended a couple sessions but refused to cooperate with further counseling.
[41] On September 25, 2023, a trial scheduling conference was scheduled. However, no materials were filed by anyone. Only Ms. Archer appeared. She advised that Ms. Williams no longer had counsel. The matter was adjourned to October 27, 2023, for an in-person appearance to complete the trial scheduling endorsement. The matter was set to proceed to trial in November 2023.
[42] On October 27, 2023, Ms. Williams did not attend again. Ms. Archer and Ms. Grant, as agent for the OCL, attended. Ms. Grant advised the court that she has had great difficulty in meeting with her client, who resides with Ms. Williams.
[43] On November 20, 2023, Ms. Williams filed a 14B motion requesting the trial be adjourned. That 14B motion was dismissed.
[44] On November 29, 2023, the matter was called to trial and continued for partial days on November 30, December 1, 5, 6 and 7. It was adjourned to the February sittings and continued February 14, not February 15, (because Ms. Williams had to attend to an issue relating to her father’s estate in New York) February 16, February 20, February 21, February 22 and February 23. The trial was not completed and was adjourned to the May sittings commencing May 22, 2024.
[45] On February 23, 2024, I conducted an interview of the child on record with Ms. Grant present. After the interview, Ms. Williams returned the child to his home. When she returned to the court, Ms. Williams, Ms. Archer, and Ms. Grant used the balance of the day to discuss a possible resolution. They were unsuccessful.
[46] The trial continued on May 22, 2024, and was completed on May 23, 2024. Deadlines for written submissions were established. Ms. Archer’s submissions were due June 13, 2024, Ms. Williams June 28, 2024 and Ms. Grant’s July 12, 2024.
Issues
- Is it in the best interest of the child, DAC, to have any parenting time or contact with his birth mother, Ms. Archer?
- Should Ms. Archer pay child support to Ms. Williams?
The Law
[47] The best interests test The court must consider the provisions of s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) in assessing the best interests of a child.
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) the child is not habitually resident in Ontario, but the court is satisfied that,
(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. 2020, c. 25, Sched. 1, s. 6.
23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,
(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,
(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,
(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or
(iii) the child is removed from Ontario. 2020, c. 25, Sched. 1, s. 6.
[48] The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 28; Mattina v. Mattina, 2018 ONCA 641.
[49] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz.
[50] No one factor in the statutory definition of a child’s best interests is given statutory preeminence; Wilson v. Wilson, 2015 ONSC 479.
[51] A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them: Van Den Driessche v. Van Den Driessche, 2011 MBQB 134, 265 Man. R. (2d) 163; Wilson v. Wilson.
[52] In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children; Barnes v. Parks, [2001] O.J. No. 643, 141 O.A.C. 362.
[53] The court should consider the level of hostility and the extent to which that stability may undermine the child’s stability; Wilson v. Wilson.
[54] The court should consider how the person seeking access has used contact for a purpose collateral to the child’s best interests. See: Lusher v. Lusher (1988), 13 R.F.L. (3d) 201 (Ont. Prov. Ct – Family).
[55] Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child’s interests. See: Jama v. Mohamed, [2015] ONCJ 619; P.H. v. T.J., 2017 ONCJ 166; McBennett v. Danis, 2021 ONSC 3610, 57 R.F.L. (8th) 1; J.T. v. E.J., 2022 ONSC 4956, 79 R.F.L. (8th) 65; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057.
[56] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.
[57] The list of best interests considerations in the CLRA is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736.
[58] The list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, her needs, and the people around her. See: Phillips v. Phillips, 2021 ONSC 2480, 55 R.F.L. (8th) 442.
[59] The court is required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. None of the factors in the non-exhaustive list of factors in s. 16(3) is any more important than any other. Rather, the list is a guide for the court of a number of customary factors that the court should ordinarily consider when determining what is in the best interests of the child. Not all of the factors will apply in each case, and there may be other factors not in the list which may be relevant in other cases. See: Cote v. Parsons, 2021 ONSC 3719.
The Law – Child Support
[60] Obligation of parent to support child (Family Law Act, R.S.O. 1990, c. F.3)
31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who, (a) is a minor; (b) is enrolled in a full-time program of education; or (c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. 2017, c. 34, Sched. 15, s. 1.
Same
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2)
[61] In Ball v. Broger, 2010 ONCJ 557, 96 R.F.L. (6th) 229, Sherr J. wrote on the issue of impact on child support of VOLUNTARY WITHDRAWAL FROM PARENTAL CONTROL.
[62] A child is entitled to support, unless he or she voluntarily withdraws from parental authority. The defence of withdrawal from parental authority is limited to clear cases of free and voluntary withdrawal from reasonable parental control. See J.L.E. v. R.B.E., [1998] O.J. No. 492; and Re Haskell and Letourneau (1979), 25 O.R. (2d) 139, 100 D.L.R. (3d) 329.
[63] Once it has been established that a child has withdrawn from parental control, the onus shifts to the child to establish that the withdrawal was not voluntary; that he or she had little choice in the matter. See Belanger v. Belanger and Capin, 17 R.F.L. (6th) 235, [2005] O.J. No. 3033,; and Fitzpatrick v. Karlein, [1994] O.J. No. 1573.
[64] Courts have noted that family dynamics are complex and have often been cautious in finding that a child has voluntarily withdrawn from parental control. See Jamieson v. Bolton and Bolton, [1994] O.J. No. 3228, which sets out at paragraph 19 a line of cases taking this approach. In paragraphs 11 and 12 of Fitzpatrick v. Karlein, the court wrote:
[11] There is a risk inherent in the question whether a youth’s withdrawal from parental control is voluntary or involuntary. The risk is that the family will be dissected and that family dysfunction and parent-and-child pathology will be dragged out, counterproductively, so that a court can indulge in a highly subjective evaluation of whose behaviour (the parent’s or the youth’s) was the most unreasonable.
[12] This distraction from the business of sorting out financial obligations is a digression into conduct that the legislature has, at times, tried to separate from support obligations. To minimize that distraction, we should recognize “normal” difficulties between parent and youth, especially if they are struggling with a reconstituted family. We should look to see whether a child has withdrawn from the control of a relevant parent and, if so, whether this was the youth’s free choice. Unless the youth was evicted by a custodial parent (not a free choice) or was subjected to unbearable conditions when viewed objectively (also not a free choice), the more subtle and subjective questions about parent-and-youth relationships should be left for a question more pressing than who, as between the youth and the parent and the state is going to pay the youth’s bills. In other words, routine comparisons of fault as between parent and child should be discouraged and only obvious cases should prevail.
[65] Courts have noted that the exception is even narrower when the child suffers from emotional difficulties. See Jamieson v. Bolton and Bolton at paragraph 35, citing L.G. v. F.G. and V.G., 20 R.F.L. (3d) 157, [1989] O.J. No. 818.
[66] This does not mean that parents are not entitled to exercise reasonable controls over a child who chooses to remain at home. See Distefano v. Haroutunian and Haroutunian, 41 R.F.L. (2d) 201,[1984] O.J. No. 2312,; and Figueiredo v. Figueiredo, 33 R.F.L. (3d) 72, [1991] O.J. No. 953.
[67] The court in Jamieson v. Bolton and Bolton, at paragraph 36, set out that courts should examine a young person’s behaviour after leaving home when assessing whether the young person left home involuntarily or whether she was just seeking independence. Did the young person move to a life of independence or did she move into another parent-child relationship? Upon leaving home, did she abandon school? Has the young person experienced conflict in relation with other adults or other persons in authority? Or on the other hand, has the young person appeared to comply with reasonable expectations? How has the young person ordered their life after the separation?
The Child’s Views and Preferences
[68] Sandra Grant, as agent for the OCL, summarized the child’s views as follows:
(i) DAC’s view and preference as expressed through his OCL legal counsel, is that he remains living primarily in the care of Michelle Williams with no contact with his biological mother, Ms. Sornia Archer.
(ii) DAC’s view and preference has been consistent and strong for several years.
[69] Because the views and preferences of this child have influenced my decision significantly, I believe it is appropriate to provide more detail regarding the involvement of the OCL and the child's communication regarding his views and preferences. Ms. Grant provided the following details:
The OCL initially became involved with this family pursuant to the June 13, 2016, Order of the Honourable Justice Hughes wherein a s. 112 Courts of Justice Act assessment/report was sought (Ex. 3). Ms. Linda Bleau conducted the assessment. No observational visit between Ms. Archer and her biological children, L or DAC, was conducted by the Clinician (Ex. 3 – pg.9). It was noted by Ms. Bleau that, “[DAC] did not appear to know Ms. Archer nor to acknowledge that Ms. Williams is not his biological mother” (Exhibit 3 – pg. 11). Further, the topic of Ms. Williams and Mr. Waithe not being DAC’s biological parents was not raised by the Clinician during the “interview with DA for fear of further trauma” (Ex. 3 – pg.12). The date of Ms. Bleau’s s. 112 Report is May 17, 2017. The s. 112 Report was not disputed.
Ms. Bleau became reinvolved in this matter as a Clinical Investigator for the OCL when Mr. Kenneth McPherson was OCL legal counsel assigned to the file. They met DAC in person in August 2020. Although the independence of DAC’s views and preference could be questioned as the child reportedly stated, “Mom [Ms. Williams] told me that she [Ms. Archer] is not good and I’m not supposed to visit her because she didn’t feed me and she wasn’t a good mom”. He advised that he never talked to his sister, L, about Ms. Archer, only to Ms. Williams and all information comes from Ms. Williams (Ex. 23 – para. 9). (These statements were denied by Ms. Williams at trial.)
More importantly, the second and third substantive meetings which were conducted virtually, were the first intimations by DAC to the OCL of his desire to not have any contact with Ms. Archer or to speak to the OCL. During the second meeting held on September 11, 2020, DAC is reported as saying to the OCL that, “I don’t really like talking to you guys because I don’t want to talk to my mom yet because I’m not really comfortable” (Ex. 23 – para 13). DAC stated that thinking about the situation with Ms. Archer or speaking to the OCL “makes it hard to sleep” (Ex. 23 – para. 14). During the third meeting on September 17, 2020, DAC stated, “I should not have to talk to you [the OCL]. You are not listening. I told you guys everything. I don’t want to talk to my mom. I’m not ready to see her. Just tell the judge what I’m saying. I’m happy where I am” (Ex. 23 – para. 16).
Since the 2020 interviews of DAC by the OCL, his views and preferences have been strong and consistent.
Another Clinical Investigator, Ms. Nicole Perryman, was assigned to this matter on April 5, 2021. DAC’s views and preferences as noted in Ms. Perryman’s affidavit dated November 28, 2023 (Exhibit 2) are as follows:
(a) D seeks to remain living in the primary care of Michelle, Ms. Williams.
(b) D seeks no access, parenting time or contact with Sornia, Ms. Archer (biological mother).
(c) D seeks no access or contact with LP (biological sister).
(d) D does not want to meet with a counsellor or therapist.
(e) D does not want to participate in Reintegration Therapy regarding his relationship with Sornia, Ms. Archer.
(f) D does not want to participate in the legal proceedings or speak about these issues any further with the OCL representatives. (Ex. 2 – para 3).
In November 2023, DAC made it abundantly clear to the OCL representatives that he did not want to be questioned any further regarding Ms. Archer and that he did not want to have any further contact with the lawyer appointed through the Office of the Children’s Lawyer.
At the commencement of the trial in November 2023, and throughout the court’s interview process in February 2024, DAC’s views and preferences did not change. There is no evidentiary basis to suggest that his view and preference changed at any point after February 2024. DAC seeks to remain in the care of Ms. Williams and to have no contact or parenting time with his biological mother, Ms. Archer (Ex. 2 – para. 8(f)(g)).
DAC sent several emails to OCL legal counsel in November 2023 which were very concerning as veiled threats of self-harm were contained within said emails. DAC’s November 2, 2023 email to OCL legal counsel, Ms. Grant, stated:
I will not be coming to see you Michelle you or the other person are not going to force me You are the problem not the judge You [are] not protecting me, I don’t want you Go away I am only going to talk to you by zoom If anything happens to me is because of you Mentally I am unable to deal with this I don’t want you I need someone else leave me alone D” [Emphasis added]
D’s November 17, 2023 email to Ms. Grant stated:
Hi guys you are not looking out for my interest or my mental health This has to stop or [there] will be no D to fight over Stop ’ ] I can't sleep no more Leave me alone D [Emphasis added]
Considering the veiled threat of self-harm made by DAC in conjunction with the OCL’s concern that continued contact with the OCL may in fact be causing emotional harm to this child, on November 17, 2023, Ms. Grant confirmed that the OCL would tell the judge of his views and preferences to remain living with Ms. Williams and to have no contact with Ms. Archer. It was confirmed that the OCL had heard his desire to have no further contact with the OCL and that the OCL representatives would not contact him further, although he was free to contact the OCL if he so desired. Although Ms. Archer, in the trial, is requesting that the court make an order that the OCL, DAC, and Ms. Archer meet, the OCL is requesting that the court not make such an order especially in light of DAC’s views and preferences.
DAC is over 14 years old and his views and preferences should be given a significant amount of weight and consideration by this court when the final resolution of the matter is determined. Beyond the first two months of his life, DAC has had no physical relationship with his biological mother. The lack of contact by DAC to Ms. Archer in his infancy and young childhood was not due to any fault of DAC. DAC is seeking that he not be ripped away from the only family that he has known since his infancy, namely being in the care of Ms. Williams.
Although the court may be concerned that Ms. Williams expressed during the trial that she did not believe it would be in DAC’s best interest to have any contact with Ms. Archer, Ms. Williams did testify that she has provided DAC with Ms. Archer’s email address and that he can contact his biological mother whenever he feels ready to do so.
During the course of the trial, there was much evidence provided by both Ms. Archer and Ms. Williams regarding the circumstances of how DAC came to be in Ms. Williams’ care and the possible irregularities in the granting of the February 21, 2014 court order.
DAC does not want to be forced to have a relationship with his biological mother. If and when such a relationship is to occur, he would like for any such relationship to be when he deems himself to be ready. DAC does not want to be forced by anyone, including a judge, to have contact with Ms. Archer. DAC confirmed his views and preferences during the trial when the Honourable Justice Nicholson met with this youth (and OCL lawyer) pursuant to s. 64(1) of the CLRA.
DAC is seeking that this court, especially in light of the fact that he is now 14 years old, respect his views and preferences and not order contact/parenting time between himself and Ms. Archer. Further, DAC is seeking to remain in the care of Ms. Michelle Williams.
[70] Contrary to any submissions or argument made by Ms. Williams, I find that Sandra Grant conducted herself in a professional manner at all times and fulfilled her duty representing the child through the OCL with the utmost integrity and diligence. She is commended for her commitment to this long trial and doing her best to put forward the position of the child. She was of great assistance to the court at various times, assisting with locating documents, filing materials and conducting cross examination to supplement the work of the two self-represented parties.
Judicial Interview with the Child
[71] On February 23, 2024, I had an opportunity to interview the child at the courthouse in the presence of his lawyer and the court reporter. As noted above by Ms. Grant, the child was very hesitant to speak with me and initially resisted coming on the day that I requested. He indicated that he preferred to come in the following day. I accommodated his request. I commended Ms. Williams for accomplishing the task of bringing him to the court for the interview.
[72] The views and preferences as outlined above by the OCL were consistently expressed during the interview.
[73] In a nutshell, I find that the child is comfortable in his cozy little world and has been poisoned against his birth mother. There is no doubt in my mind that Ms. Williams has influenced him. He was eager to blurt out his preference to remain living with Ms. Williams and have no contact with his birth mother. He wanted to bring the interview to a close as soon as he had expressed his views. He was not interested in any form of small talk or in allowing me to get to know him better. He came across as being very strong willed, and I don't believe anyone, including me, could make him do anything that he did not want to do. For example, he has no interest in attending school in person, preferring to continue with the online option for school that started during the pandemic.
[74] Contrary to the evidence of Ms. Williams, he confirms that he regularly sees Mr. Waithe and did not have to travel to the States to do so.
The Best Interests of the Child
i) Application of the law to the facts of this case:
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
[75] I find that this is not a case where the physical safety, security or well-being of D is at issue. The best interest focus in this case is all about D’s emotional and psychological well-being. Neither Ms. Williams nor Ms. Archer present any risk to D’s physical well-being. In fact, neither of their plans is better than the other at meeting D’s emotional and psychological well-being. D’s emotional and psychological well-being is entirely wrapped up in his views and preferences as will be explained below.
ii) Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
[76] The evidence did not reveal that D has any mental health diagnosis. He has no “special needs,” as colloquially understood. He does, however, have a history of exposure to trauma and a very unique need for stability. As a six-month-old child, he was taken by Ms. Archer to Australia where he was removed from his mother by child protection services as a result of Ms. Archer’s arrest for drug trafficking. He was placed in foster care in Australia, visited with his mother for a few months in prison. He was then transported by strangers back to Canada and placed in foster care. He was then moved through several homes of relatives of Ms. Williams, and eventually into Ms. Williams’ care. In Ms. Williams’ home, he was exposed to a chaotic lifestyle of watching his sister and other family members battle with issues of abuse and mental health struggles, including being present when armed police raided his home five years ago in response to an allegation made by Ms. Archer that D’s sister, L, was being sexually assaulted by Ms. Williams’ husband, Mr. Waithe. The involvement or lack of involvement by Mr. Waithe in D’s life has also been destabilizing. According to Ms. Williams, Mr. Waithe does not live with them in the family home, but they are not separated. He lives in the United States according to Ms. Williams. He lives close to home, according to D.
[77] In a 2020 affidavit of Linda Bleau on behalf of the OCL, Ms. Bleau reported that, in response to a question as to what he knew about his birth mom, D stated, “Mom (Ms. Williams) said I am not to visit her…She didn't use to feed me and she is not a good mom.”
[78] I have no professional assessment to rely upon to help me understand D’s emotional and psychological needs. However, I am guided by common sense and reason. The child has been traumatized and his views and preferences are ingrained. He desperately needs order, control and stability.
[79] He has found stability in an artificial family. Ms. Williams manipulated D, Ms. Archer and the judicial process to create a false sense of security for D. But this is the only security he knows. He rejects any effort to disrupt that security, including a relationship with his birth mother.
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
[80] The child’s relationship with Ms. Archer is non-existent. I have no professional assessment to rely upon to help me understand the exact nature of the relationship between the child and Ms. Williams. If there was an assessment, I suspect it would conclude that D has an insecure attachment with Ms. Williams. This is pure speculation on my part, and I will not rely on such unreliable conclusions for my decision.
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
[81] Based on the litigation history and the evidence submitted during this trial, I find that Ms. Williams has intentionally delayed this matter being resolved and has denied contact between Ms. Archer and D throughout. She has led D to believe that Ms. Archer is a bad person with whom he should have no relationship. At times, she has agreed to participate in attempts at reunification only to later sabotage them by refusing to deliver the child to sessions or otherwise refusing to participate, often hiding behind the excuse that she could not force D to attend.
[82] She has systematically and successfully alienated the child from his mother. He unequivocally wishes to have nothing to do with his birth mother.
[83] Ms. Williams stated repeatedly in her closing submissions that Ms. Archer is a narcissist who is using her two children for her own ends and allowed her daughter, L, to be sexually assaulted seven times. The evidence at trial did not support any such conclusion. Such statements do, however, lead me to believe that Ms. Williams will most likely continue to pursue the same plan she has for 14 years: doing everything in her power to prevent Ms. Archer from having any relationship whatsoever with D.
[84] In her submissions Ms. Archer states:
Respondent emphasized that this case is not solely about a mother seeking the return of her child, it is fundamentally about ensuring the safety and well-being of her son D. His safety is my utmost priority and regrettably, he is currently at risk in his current living situation. Immediate and urgent intervention action is necessary to protect him from current harm and long-term trauma and provide him with a secure environment where he can thrive. The focus of this case must be D's safety above all else, as his Well-being is at Jeopardy.
[85] While Ms. Archer’s intentions may be laudable, she does not include in her submissions any plan to continue to foster a relationship between D and Ms. Williams. Such a position is short-sighted and fails to address the reality of D’s attachment to Ms. Williams.
(d) the history of care of the child;
[86] The child has been in the exclusive care of Ms. Williams for most of his life. Ms. Archer had care of D for only the first six months of the child’s life. Ms. Archer has had no contact with the child since he was six months old.
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
[87] As stated in much detail above, D’s view and preference as expressed through his OCL legal counsel, is that he remains living primarily in the care of Ms. Williams, with no contact with his biological mother, Ms. Archer.
[88] D’s view and preference has been consistent and strong for several years.
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
[89] Neither party presented any evidence to address this point. Both Ms. Williams and Ms. Archer are of the same racial background as D.
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
[90] I have concerns about Ms. William’s abilities to meet D’s needs. Although he is alive, proving that Ms. Williams has fed and physically nurtured D, I have little evidence to support a finding that she has adequately met his educational, emotional or psychological needs. She has allowed him to choose to continue his education online, long after COVID-19 restrictions were lifted. She has intentionally interfered with his relationship with his birth mother. He has become suicidal over these proceedings and I am not convinced Ms. Williams has obtained the support the child requires to address his mental health needs. She sabotaged all attempts at reconciliation therapy.
[91] Although Ms. Archer is willing to meet D’s needs, there is no evidence before me about her ability to do so.
[92] I find that D would benefit tremendously from a healthy relationship with his birth mother, Ms. Archer. Ms. Archer has, without dispute, made a serious error in her life by becoming involved in criminal activity. However, she has paid her debt to society and her misconduct should not have resulted in the termination of her relationship with her only son. Ms. Williams has imposed a much greater punishment on Ms. Archer than anything the state could.
[93] The difficulty, however, is that D had never known his mother and does not want to get to know her. I agree with the OCL’s assessment regarding D’s wishes:
DAC’s emotional well-being has been negatively impacted by the litigation which has been ongoing for over ½ of his life. DAC has clearly indicated that he seeks the current litigation to be concluded. DAC self identifies that the current litigation has negatively impacted his mental health, ability to focus and his ability to sleep. Further, the evidence adduced in this trial illustrates that DAC has engaged in suicidal ideation and/or threats of self-harm. DAC has been taken to the Hospital for Sick Children by Ms. Williams on several occasions regarding concerns including deliberate self-harm, suicidal ideation, anxiety, situational crisis, sleep disturbances, and depression on the part of DAC (Ex. 21).
DAC considers this litigation to be the root of his mental health problems. From DAC’s perspective, to support his sense of well-being, he should remain living with Ms. Williams and not be required to have any contact with Ms. Archer. DAC seeks that when and if he has contact with Ms. Archer, it should be at a point in his life where he feels mentally ready. In fact, in response to the judge’s request that he attend at the courthouse to speak with him, DAC advised that he would not be attending on the day the court requested his attendance, “cause I am clearing my head, mentally preparing myself. I will be there tomorrow, don’t want to be ambush by that other person or L so tell [the judge] to be honest with what he said in his letter” (Ex. 28). DAC has been able to communicate to the court his specific desires regarding this matter (Judge’s Interview with child – Feb. 2024).
[94] To force D to have contact with Ms. Archer in the face of his clearly expressed emotional turmoil about his relationship with her and this court case, would be contrary to his views, his preferences, and his best interests.
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
[95] The evidence is clear that neither of the parties is able or willing to communicate or cooperate with the other on any topic and especially not on matters that affect D.
[96] Ms. Archer’s submissions included the following statement:
The Respondent has an unwavering dedication to being patient and understanding of DAC and his needs. The Respondent will listen attentively, respond with empathy and approach every situation with patience and care. DAC’s well-being and happiness are of the utmost priority and the respondent is fully committed to providing him with the love, support and guidance he needs to thrive rightfully.
[97] If Ms. Archer is truly committed to this position, she will understand that D cannot today be ripped away from the only mother he knows and wants to know.
[98] Ms. Williams submissions included this convoluted statement, consistent with much of her trial testimony:
Mrs Archer and D 1. Mrs. Archer fantasy claim for D as a parent to unachievable, Sornia proof with L as a parent speaks for itself D is 14 years old Present Linda Bleau report he was 7 years old (baby d) D that came to court in this case is also, a different D today D has enlisted his support team in helping him understand his rights in this custody case Linda Bleau report and Nicole Perryman report has one similarity Views and Preference of D have not change What change for D he very aware of this court proceeding, and he is working on his rights if this court fail him. Mrs Archer Stated in Orders Sought, dragging D to court in front of your honour, basically forcing him against his wishes 2. Trying to used Law enforcement, CAS etc. to take his rights 20 / 21 ( Notes. Mrs. Archer had a 11yr turn 12yrs son in law from a group home living in her house, Sornia never call law enforcement or CAS on him). The police was looking for them, the police went to Mrs. Archer home and sornia told L and him to stay quiet until they left Mrs. Archer is a narcissist is willing to put her 5ft 6in son in danger knowing he will resist, and thing can go wrong Currently, in Toronto the crime rate for boys 14yr to 15yr is very bad, many shooting are happen within boy of this age group The Narcissist Mrs. Archer is willing to put him at risk for her selfish gain, knowing D will not co-operate and disgusting it as me MS Williams being defiant.
[99] Based on this assessment of the child’s best interest, I reluctantly conclude that D will have no contact or parenting time with Ms. Archer.
Child Support
[100] Ms. Williams spent very little time in this trial on her claim for child support. I am not sure that she has ever properly amended her application to plead child support. She included one line in her written submissions on the topic. However, I believe it is necessary to deem pleadings amended to allow that claim for child support so that the court can rule on the issue.
[101] I find that the circumstances of the last 14 years make an order for child support illogical. I find that Ms. Williams is responsible for intentionally sabotaging the relationship between the child and Ms. Archer. She has succeeded in convincing the child that he should have no relationship with Ms. Archer, his birth mother. I have honoured the child’s strongly held views to have no contact with his birth mother.
[102] Although child support is the right of the child, I struggle to find any justification for making an order for support against a parent who has been systematically shut out of the life of her child by the current caregiver for the past 14 years and who is currently being completely rejected by the child. Notwithstanding Ms. Archer’s efforts to pursue a relationship through the court for the past 9 years, the child wishes to have no relationship with Ms. Archer whatsoever.
[103] I believe D has formulated a clear and unequivocal desire to withdraw from any form of a relationship with Ms. Archer. He has no relationship with his birth father. If the child is old enough to decide to withdraw from his mother for parenting time and contact purposes, it would seem logical that he is old enough to withdraw from parental control for child support purposes.
[104] However, the exception to the obligation of a parent to pay child support for a child who has withdrawn from parental control only applies to a child who is 16 years of age or older as outlined in s. 31 of the Family Law Act. The legislation does not extend any discretion to the court on this point. Therefore, it is necessary for me to rule on the issue of child support.
[105] Ms. Archer submitted evidence of her income. Her 2023 income was $46,800. The amount of child support she should pay to Ms. Williams for one child, according to the Child Support Guidelines, is $434. I find that she shall pay $434 per month commencing August 1, 2021 and continuing until the month D becomes 16 years of age, on May 12, 2026.
[106] The child support will be reviewed upon D becoming 16 years old. This amounts to 57 months in total. The total amount of child support owed by Ms. Archer is therefore $24,738.00. This amount shall be set off against the costs order I am making against Ms. Williams below.
[107] This child support order shall fulfill Ms. Archer’s obligations until D’s 16th birthday. Child support may be reviewed upon D becoming 16 years old. If D has established a meaningful relationship with Ms. Archer by the age of 16, child support shall be payable. If D has not established a meaningful relationship with Ms. Archer by the age of 16, he will be deemed to have withdrawn from parental control and Ms. Archer will have no obligation to pay child support for D. “Meaningful relationship” in this context shall be defined as D having exercised, for a period of at least 6 continuous months prior to his 16th birthday, parenting time with Ms. Archer for a minimum of 48 continuous hours per week.
Costs
The Law
[108] An award of costs is subject to the factors listed in Rule 24(11) and the directions set out under Rule 24(4) (unreasonable conduct). The costs must be proportional to the amount in issue and the outcome. In setting the amount of costs, the Court shall consider the importance, complexity, or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour in the case; the lawyer’s rates; the time properly spent on the case; expenses properly paid or payable; and any other relevant matter. See: Family Law Rules, O. Reg. 114/99, Rules 24(4), 24(11), 24(12); Balfour v. Balfour, 2019 ONSC 2892 at para 26.
[109] In determining whether a party has behaved reasonably or unreasonably, the Court shall examine (a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle, and (b) the reasonableness of any offer the party made. See Family Law Rules, Rule 24(5).
[110] In 2018, the Ontario Court of Appeal dealt with costs in Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, and Mattina v. Mattina. The Court of Appeal in Beaver v. Hill states at para. 12: “…proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.” In addition to success, the factors in subrules 24(4), 24(5), 24(6), 24(8) and 24(12) must all be considered. See Family Law Rules, Rules 24(4), (5), (6), (8), (12).
[111] Cost rules are designed (a) to indemnify successful litigants for the cost of litigation; (b) to encourage settlements, (c) to discourage and sanction inappropriate behaviour by litigants, and (d) to ensure that the primary objective of the rules is met – namely, that cases are dealt with justly. See: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40 at para. 8. In Stow v. Davidson, 2018 ONSC 3274, Summers J. considered the fact that the successful party had served a reasonable offer, even though it fell short of invoking Rule 18(14) consequences. The Court ordered costs payable to him.
[112] A trial judge is in a much better position to assess who should receive costs for the time spent gathering and presenting evidence on the ultimate merits of the application to change child support on a motion for a temporary order to suspend the enforcement of the separation agreement. Although this evidence had relevance to the temporary motion (to conduct a preliminary assessment of the strength of the parties’ claims), the court should not award any party significant costs for this work. At this stage, when, at trial, it could turn out that the other party's version of events is accepted. See: Sivasubramaniam v. Chandrasekarum, 2017 ONCJ 23, 94 R.F.L. (7th) 254.
Costs Decision
[113] Both parties were self-represented throughout the trial. Each party had representation at various points in the past 9 years that this matter has been before the Court.
[114] I have already made findings regarding the conduct of Ms. Williams. I find that her conduct was unconscionable. She intentionally sabotaged the relationship between the child and Ms. Archer. She acted unreasonably throughout these proceedings and throughout this trial. Her conduct has resulted in significant delay throughout these proceedings and is worthy of being sanctioned. She may have been successful in obtaining the order that the child will have no contact or parenting time with his birth mother, but she is also to blame for the destruction of that relationship. She will pay costs to Ms. Archer in the amount of $25,000. These costs will be set off against Ms. Archer’s support order, leaving costs of $262 to be paid to Ms. Archer within the next 30 days.
Justice P. W. Nicholson
Date released: September 3, 2024