Pozniak-Waller v. Uddenberg, 2011 ONCJ 699

Brampton Registry No. 506/01 DATE: 2011·X·04 CITATION: Pozniak-Waller v. Uddenberg , 2011 ONCJ 699 ONTARIO COURT OF JUSTICE BETWEEN: CAROLINE POZNIAK-WALLER Applicant — AND — EDWARD UDDENBERG Respondent Before Justice June A. Maresca Heard on 15 July 2011 Reasons for Judgment released on 4 October 2011 JUSTICE J.A. MARESCA:— 1: HISTORY OF COURT PROCEEDINGS [ 1 ] This family has been before the Court for a very long time. The proceedings are centred around Connor Pozniak- Uddenberg, born June 11, 1998.

On June 8, 2010, the parties and then counsel for Connor entered into an agreement regarding custody, access and child support, which formed the basis of a final order. That order provided for joint custody of Connor to the parents, with a defined rotating residential

schedule of two weeks with one parent, followed by two weeks with the other parent. Child support was also addressed in that order, as was a process for dispute resolution. The order, based upon the consent of the parties, contained a provision that neither parent move to vary it until July, 2011. [ 2 ] This is a motion to change the June 8, 2010 order, brought by the Respondent, Mr. Uddenberg. The motion was brought on September 15, 2010, only three months after the June 8 order was made. The motion sought an order of sole custody to Mr. Uddenberg, and a termination of child support effective September 1, 2010.

An ex parte motion was filed on the same date by Mr. Uddenberg, requesting an immediate change in custody on the basis of urgency. Mr. Uddenberg made allegations that Connor had been sexually molested by Mr. Waller, Ms. Pozniak-Waller’s husband. That motion was dismissed by Justice Dunn on September 16, 2010, who ordered that all motions in the case were to be brought on notice. [ 3 ] On October 1, 2010, Mr. Uddenberg brought two additional motions, neither of which were served on Ms. Pozniak- Waller.

The first was a motion to amend the Motion to Change of September 15, 2010, and the second was a motion for a restraining order against Ms. Pozniak-Waller. Mr. Uddenberg was granted leave to amend his motion to change to add a claim for supervised access to Connor’s mother and step-father. The motion for a restraining order was dismissed. [ 4 ] Ms. Pozniak-Waller brought a motion on notice to Mr. Uddenberg to clarify the June 8, 2010 order, and to have the order issued and entered. The order was in fact issued and entered shortly thereafter, in its original form.

On November 15, 2010, she filed her response to the Motion to Change, seeking an order dismissing the Motion to change, and an order that she have sole custody of Connor, with supervised access to Mr. Uddenberg. [ 5 ] The Motion to Change and Cross Motion were before me on December 23, 2010. Mr. Uddenberg brought a therapist to court on that date, Mr. Woolley, who had counselled Mr. Uddenberg, Mrs. Uddenberg, and Connor. On that date, having read the materials filed by the parties, and the orders which had been made up to that point, I ordered that Mr.

Uddenberg comply with the June 8, 2010 order, and requested that the Office of the Children’s Lawyer re-appoint counsel for Connor. Mr. Uddenberg alleged that prior counsel for Connor was biased against him; in the event, new counsel, Mr. Demeda, was appointed to represent Connor. [ 6 ] The case was adjourned three more times in order to give Mr. Demeda and the clinical investigator assisting him sufficient time to complete their work. The matter came before me on June 21, 2011.

On that date, I ruled that the trial of an issue was not necessary, and fixed argument on the Motion to Change and Cross Motion for July 15, 2011. Leave was granted to all parties to file further materials. The motions were argued on July 15, 2011. An order of sole custody of Connor to his mother was made on a final basis, and an order for alternate weekend access between Connor and Mr. Uddenberg was made on a temporary basis. Brief oral reasons were given, and the parties were advised that written reasons would follow.

2: FINDINGS ON THE EVIDENCE [ 7 ] Pursuant to the June 8, 2010 order, Connor lived with each of his parents during the summer of 2010, on a two-week rotation. The conflict between the parents over that time period escalated, and after his two weeks with Connor ending on September 12, 2010, Mr. Uddenberg refused to return him to Ms. Pozniak-Waller. Mr. Uddenberg tried unsuccessfully to change Connor’s school with the Applicant’s consent. He failed to return Connor to his mother for nearly the entire fall of 2010, with the exception of two weeks in October.

During that time period, while living with his father, Connor missed at least 20 days of school. He filed the Motion to Change in September, and Connor’s mother filed her Response and claim for custody in November 2010. When the matter came before the Court on December 23, 2010, the Respondent was ordered to return Connor to his mother’s care, and the rotating two week

schedule recommenced. [ 8 ] Ms. Uddenberg, the wife of the Respondent, filed a privately laid criminal information against Mr. Waller in November of 2010, alleging criminal harassment. That charge was ultimately withdrawn. [ 9 ] Mr. Uddenberg alleged in his Motion to Change that Connor had been sexually assaulted by Mr. Waller, his step-father and husband of the Applicant. That allegation was reported to the Children’s Aid Society, and a joint investigation was conducted by that Agency and the police.

In a letter to the Applicant dated December 10, 2010, the Society said: “..The investigation concluded that the allegations regarding any sexual abuse were not verified……Your family’s case was transferred to ongoing services as concerns regarding custody and access disputes were verified.” [ 10 ] Mr. Uddenberg advised the Court, on the December 23, 2010 appearance date, that his son revealed to him that he had not told the Children’s Aid Society all of the information regarding the abuse as he was afraid of going into foster care.

On the basis of that information, the Court requested that the Society investigate, given the additional information. [ 11 ] The Court received a letter from the Society dated January 20, 2011, which was highly troubling. The letter indicated that a number of investigations of sexual abuse allegations regarding Connor had been made previously, all by the father against the mother’s husband. The first allegation, made in January 2009, resulted in a joint investigation by the Society and the special victims unit of the Peel Regional Police.

That investigation resulted in no charges being laid, and a finding by the society that the allegations had not been verified. In May 2009, a second allegation was made by Mr. Uddenberg, also involving alleged sexual abuse of Connor by his step- father. Again the Society investigated, and the allegation was not verified. In September of 2010, a third allegation was made by Mr. Uddenberg, which was again found to be without merit. The Society was of the opinion in January 2011, that any further investigations would be detrimental to Connor, unless new allegations were made.

Despite being made aware of these concerns, Mr. Uddenberg again made an allegation of sexual abuse of Connor by Mr. Waller in February 2011, which was investigated and found to be of no merit. [ 12 ] In August of 2010, Mr. Uddenberg took Connor to see a counsellor, ostensibly because Connor was anxious about his relationship with his mother. The counsellor, Mr. Woolley, saw Connor 10 times between August and November 2010. He provided an undated letter to the Court, which was filed by the Respondent on November 25, 2010. The letter stated that Connor was unwavering in his desire to live entirely with his father.

It is significant that Mr. Wolley first met with Mr. Uddenberg and his wife, and then met with Connor with Mr. Uddenberg and/or his wife present , on seven out of the 10 sessions he had with him. Mr. Wolley attended at Court on December 23, 2010, and spoke with the Court. It was clear from that discussion that he considered himself an advocate for both the Uddenbergs and Connor. He did not involve the applicant or her husband in the counselling. . In my view, Mr. Wolley’s views and his expression of Connor’s views should be given little weight. [ 13 ] Mr. Demeda was appointed to represent Connor.

He was assisted by a clinical investigator from the Office of the Children’s Lawyer, Ms. Verano. Her affidavit was filed with the Court on June 16, 2011. It is important to note that Connor had been represented by counsel in the previous proceedings, and that Mr. Uddenberg requested that different counsel be appointed to represent Connor in this motion, as he felt that the previous OCL counsel was working with the Applicant and was biased against him. [ 14 ] Mr. Demeda and Ms.

Verano took the position that while Connor articulated that he wished to reside with his father, they observed him to be much more comfortable and at ease at his mother’s home than at his father’s. They believed that Connor’s expressed views were not independent, and did not represent his true feelings. In addition, Ms. Verano’s affidavit contained the following paragraph: 105. “In addition, I am concerned that if Connor is placed in the Uddenbergs’ care, Connor’s relationship with his mother and her family will deteriorate further as it is clear that they do not believe Connor is safe in Ms.

Pozniak-Waller’s care.” 3: THE LAW [ 15 ] A court may only change a final order with respect to custody and/or access if there has been a material change in circumstances since the making of the original order which impact upon the best interests of the child. While the hostility between the parents in this case has not changed, the recent actions of Mr. Uddenberg have made a continued joint custody order unworkable.

While I do not believe that he would intentionally harm Connor, he has lost sight of Connor’s best interests, and his conduct has put this child squarely in the middle of the conflict between the parents. In the name of protecting Connor, Mr. Uddenberg has put him at risk emotionally and psychologically. [ 16 ] In order to assist Connor, Mr. Uddenberg must recognize the importance of supporting Connor’s relationship with both his mother and his step-father. To do otherwise will be to inflict harm on Connor, and his campaign against Connor’s mother and step- father will ultimately ensure that Mr.

Uddenberg has less contact with his son, rather than more.

[ 17 ] This case was heard on the basis of the affidavits filed by the parties in support of the Motion to Change and the Cross Motion, and submissions. In my view, the trial of an issue was not required; indeed, to conduct a trial in these circumstances would be to prolong the dispute for Connor, and would escalate the tension between his parents. It was clear from the materials filed that Mr. Uddenberg had made several complaints of sexual assault of Connor by Mr. Waller, all of which were found to have no merit. In addition, the affidavit filed by Ms.

Verano contained her view that Connor’s place with his father would risk the destruction of his relationship with his mother and her family. As noted above, a continued shared parenting regime is no longer feasible. The only remaining alternative is to place Connor in the custody of his mother, with access to his father. That order was made on July 15, 2011, and the details relating to that decision are embodied in that endorsement. 4 October 2011 Justice June A. Maresca