) ) CATHERINE GAIL STIRLING ) Catherine Gail Stirling, ) self-represented Applicant ) ) ─ v. ─ ), 2013 ONSC 5216

CITATION : Stirling v. Blake, 2013 ONSC 5216 St. Catharines Court File No.:1068/00 Date: August 12, 2013 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: ) ) CATHERINE GAIL STIRLING ) Catherine Gail Stirling, ) self-represented Applicant ) ) ─ and ─ ) ) ROBERT BLAKE ) Robert Blake, ) self-represented Respondent ) ) Virginia Workman, ) Children’s Lawyer ) ) HEARD: June 26-28, 2013, ) at St. Catharines J.W. Quinn J.: ─ I Introduction [ 1 ] In the period 2001-2013, these parties (individually or together) appeared in Family Court 65 times. At the St.

Catharines Court House, they are more tenants than litigants. In the course of those appearances, they came before 11 different judges, generating orders galore. [ 2 ] Each of the parties has brought a motion asking that changes be made to court-ordered provisions concerning their children. The motions are of the type seen every day in our courts. They were heard as a trial with oral evidence. The complaints of the parties are as common as teeth. The end result of each motion would be self-evident to any rational, objective observer. [ 3 ] The applicant, Catherine Gail Stirling (“Ms.

Stirling”), has grown weary of her years in court. She now professes to have a life and is no longer desirous of litigating every child-related dispute. Ms. Stirling has taken a reasonable and sensible approach to the issues raised by the motions. Unfortunately, she is a prisoner of her past conduct and now has become a victim of the mistrust it engendered in the respondent, Robert Blake (“Mr. Blake”). [ 4 ] Mr. Blake has discovered the term “parental alienation.” It is his battle cry. But he is litigating the past and ignoring the present. Unlike Ms. Stirling, Mr. Blake seems to enjoy litigation.

He has developed a certain courtroom polish [1] and I expect we will see him again. [2] [ 5 ] In a trial involving self-represented litigants, my expectations are low: all I ask is that they be clothed. If they can fake civility

toward each other and pretend to be respectful of the court, that is a merciful bonus. Both of the parties easily achieved these modest goals. Nevertheless, it must be said that Mr. Blake was single-minded in his approach and barely tolerated my direction and advice. [3] [ 6 ] The central issues on the motions are these:

(1) Should the children, because of their ages and busy lives, now have a voice in the scheduling of the access being exercised by Mr. Blake?

(2) Does such an arrangement represent the preference of the children?

(3) Is it a free and voluntary preference?

(4) If so, should that preference constitute the material change in circumstances required by s. 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12?

(5) Is that preference determinative of the motions?

(6) To what extent is evidence, predating the order to be changed, relevant on these motions? II Background the parties and the children [ 7 ] Ms. Stirling is 49 years of age. Mr. Blake is 55. [ 8 ] The parties met in 1988. At the time, Mr. Blake had been divorced following a seven-year marriage that produced two children. Ms. Stirling was married, with no children, and experiencing marital difficulties. [ 9 ] Ms. Stirling separated from her husband in 1989 and she and Mr. Blake lived together. After three months, Mr. Blake realized that “it was not going to work out” and he “asked her to leave.” [ 10 ] Ms.

Stirling divorced her first husband and, in 1990, she married her second husband, a “significantly older . . . controlling” gentleman. They separated in 1997. [ 11 ] It was in the summer of 1998 that Ms. Stirling and Mr. Blake resumed their relationship. They negotiated the conception of a child – Kathryn Elizabeth Stirling (“Katie”) – but did not cohabit prior to her birth, on October 1, 1999. They did live together beginning in February of 2000, but separated in December of that year, prior to the birth of their second child, Emma Michelle Stirling (“Emma”), on May 7, 2001. [ 12 ] In April of 2003, Ms.

Stirling began dating then-40-year-old Michael Peterson. A few months later they lived common-law, becoming engaged to be married the following year. They separated at some point (I believe it was in December of 2005). The children and Mr. Peterson formed a close attachment that antagonized Mr. Blake. [ 13 ] At the time of trial in 2013, Ms. Stirling was living with a 55-year-old separated, nearly-divorced father of five children (with whom he does not have access). [ 14 ] The fact that Ms.

Stirling appears to be a serial spouse [4] is unsettling, but it is not terribly relevant to the motions. [5] the first application [ 15 ] Within days of their separation in December of 2000, Ms. Stirling commenced an application for custody of Katie and for child support. In his answer to the application, Mr. Blake agreed that Ms. Stirling could have custody and that he would pay table support in accordance with the Child Support Guidelines (Ontario) . The only complaint made by Mr. Blake was that he took issue with the length of time that Ms.

Stirling said they had lived together: he alleged a longer period. [6] His financial statement showed the first of many meager annual incomes earned from his self-employment as a painter: $16,800.00. He is a lifelong financial underachiever. [ 16 ] Mr. Blake did not raise issues of access exercised or access denied. the order of March 19, 2001 [ 17 ] In this first application, a final order was obtained on consent from Genesee J. on March 19, 2001. Ms. Stirling was given custody of Katie, Mr.

Blake was to have reasonable access upon reasonable notice and required to pay monthly child support of $127.00 (based on an annual income of $16,000.00). [ 18 ] It never would be this easy again. the second and third applications [ 19 ] With the birth of their second child, Emma, on May 7, 2001, Ms. Stirling commenced a second application, in October, seeking custody, child support and “a review” of the income allegedly earned by Mr. Blake (she contended that he received more than $16,000.00 annually). Mr. Blake delivered his answer to the application in November.

He agreed to the claim for custody and child support. His financial statement reflected a monthly income of $1,625.00. For some reason, this application did not proceed and a third one was started in January of 2002, claiming the same relief. Mr. Blake delivered his answer in March. This time, his answer was more expansive. It described the initial meeting of the parties, . . . [Ms. Stirling] and I met for the first time approximately 14 years ago [1988] at our place of employment, we started to see each other and she moved in with me.

After her living with me for a short period I asked her to leave as I was not ready for a relationship as of yet, after going through my divorce. She moved out and we didn’t have any contact for I would say 10 years. She re-entered my life in 1999 . . . their decision to have a child,

In the beginning of our relationship [Ms. Stirling] expressed her interest in having a child. We talked about this at great length and I was very clear to her the only way I would have children again was if I was going to be part of their lives . . . [Ms. Stirling] herself said over and over again that it was very important for the father to be a part of her child’s life, as she has not seen or heard from her father since she was a little girl . . . We seemed to be in sync, I was thrilled . . . and how the relationship quickly deteriorated: She became pregnant then everything changed.

She became very demanding, moody, irritable, all things due to a pregnancy I concluded . . . Katie was born, things were not too bad for awhile, they were actually going well and we decided to move in together. I, like her, lived in a two-bedroom apartment fully furnished . . . since I was a smoker and my things were older it was decided we would have a yard sale and get rid of my things . . . [Ms. Stirling] took the proceeds from the sale of my goods. [Ms. Stirling] moved in, life was terrible, she was very moody, demanding. We lived together for four months.

I came home from work one day, she informed me she was moving out . . . She left December 4, 2001 . . . [ 20 ] The answer filed by Mr. Blake contained the inaugural rendition of his I-am-self-employed-and-poor-and-will-always-be-poor plea: [7] I am self-employed and have always been bad with money, [Ms. Stirling] is very aware of this. I have no means to pay support as I am unable to properly take care of myself. [ 21 ] In the early legal proceedings, there was much toing and froing on financial issues.

This is not uncommon where the payor spouse is self-employed, as that fact frequently leads to suspicions regarding the accuracy of the income reported. the order of June 13, 2002 [ 22 ] In June of 2002, as part of her third application, Ms. Stirling moved for temporary custody of Emma, temporary child support and an increase in the child support ordered on March 19, 2001. Ms. Stirling sought financial disclosure from Mr. Blake in respect of various enumerated items. [ 23 ] On the issue of access, Ms. Stirling, in her supporting affidavit, stated: . . . [Mr. Blake] has made no attempt to visit the children . . .

I prefer [Mr. Blake] not see the girls as he is inconsistent and has serious issues that can only harm his children . . .” The “serious issues” were not revealed. [ 24 ] In his responding affidavit, Mr. Blake agreed that Ms. Stirling could have temporary custody, but added, “even though I have not seen the girls for a while, I do not want to be disallowed from seeing them.” The affidavit does not explain why Mr. Blake had “not seen the girls for a while.” Many of the access problems experienced over the next 10 years can be traced back to this early-2000s absence of Mr.

Blake from the lives of his daughters. [ 25 ] On June 13, 2002, Scott J. made a temporary consent order varying the order of March 19, 2001 and awarding custody of the two children to Ms. Stirling. Leave was given to Ms. Stirling to file a motion for a change in the amount of child support prior to a case conference being held. the order of July 2, 2002 [ 26 ] The parties obtained a consent order from Steinberg J. requiring Mr. Blake to produce certain financial records.

Also, the amount of child support was increased to $176.00 monthly, based upon “a stated income of $1,000 per month.” the order of July 11, 2002 [ 27 ] A consent final order was made by McLaren J., granting custody of the children to Ms. Stirling and requiring Mr. Blake to provide financial disclosure. The issues of child support and access proceeded to a settlement conference. the order of September 13, 2002 [ 28 ] On September 13, 2002, the parties appeared before Mazza J. They were represented by duty counsel. On a motion by Ms.

Stirling, the orders of March 19, 2001, July 2, 2002 and July 11, 2002, were varied. Mr. Blake was ordered, on a final basis, to pay child support for Emma in the sum of $185.00 monthly, based upon an annual income of $12,300.00. He also was ordered to pay $50.00 per month toward child support arrears, found to be $635.00. (I expect that the figure of $185.00 was intended to be support for both children.) notice of appeal [ 29 ] In October of 2002, Mr. Blake filed a notice of appeal in respect of the child support ordered by Mazza J. on September 13, 2002.

Ultimately, the appeal was dismissed by the Divisional Court at Hamilton. the letter of July 11, 2003 from Mr. Blake [ 30 ] In a letter to Ms. Stirling, dated July, 11, 2003, Mr. Blake wrote about his desire to “re-enter” the lives of his children: . . . I am writing you this letter to make you aware that I feel it is time for me to re-enter Katie and Emma’s lives. I would like to know if

it’s possible for us to come to some agreement on how this could be done? Failing an agreement, I will seek court intervention. I will give you 10 days from the date of this letter to respond . . . [ 31 ] At this point, Katie was almost four years of age and Emma two. motion by Mr. Blake [ 32 ] Not having received a favourable reply from Ms. Stirling, Mr. Blake, in September of 2003, moved for specified access to the children and for the cessation of child support. the September 2003 affidavit from Mr. Blake [ 33 ] The September 2003 affidavit from Mr.

Blake, in support of his motion, explained, for the first time, why he had not been exercising access: 5. Over a period of time, [Ms. Stirling] made visits with the children uncomfortable and eventually intolerable. 6. As a result of differences between myself and [Ms. Stirling], it became impossible for me to develop a relationship with my children. The decision to discontinue a relationship with my children was an extremely difficult decision to make, but one I felt was, at the time, necessary. . . . . . . 8. Prior to discontinuing access with my children, I did have regular access visits with them. 9.

I feel [Ms. Stirling] has been allowed to manipulate the problems in our relationship to reflect on my relationship with my children. 10. My children, to this date, have been denied the right to know their father and I feel I am now in a position to begin regular access visits with them. . . . . . . 14. [Ms. Stirling] did, on every occasion, make access visits extremely stressful . . . . . . . . . 18. I verily believe that it was [Ms. Stirling]’s intention to have children with me, solely to satisfy her desire to be a mother. [Ms.

Stirling] has made every attempt to remove me from her life as well as my children’s lives. [ 34 ] The affidavit alleged that Ms. Stirling had tried to bargain away his access rights: 17. On or about December 2002 . . . [Ms. Stirling] contacted my sister, Lori Nicoletti, and asked that my sister advise me that she, [Ms. Stirling], would drop all issues with respect to support and arrears if I would sign off all rights to my children. [ 35 ] Mr. Blake stated that he “would accept sporadic access in order to reintegrate with” the children and he concluded his affidavit by stating: 22.

I am agreeable to having any said access visits supervised by an independent party . . . the November 2003 affidavit from Ms. Stirling [ 36 ] In her responding affidavit, sworn in November of 2003, Ms. Stirling deposed as to the early relationship with Mr. Blake and the decision to have a child: 2. . . . in the summer of 1998 . . . we maintained a friendship only. In the autumn of that year we tried dating sporadically. During that time we discussed the issue of children. [Mr.

Blake] told me that since his first two children were young when that marriage ended, he felt he might have his second chance at being a full-time father. 3. Around Christmas time of 1998 [Mr. Blake] and I committed to a relationship. We conceived our first child, [Katie], in January of 1999. However, we maintained separate residences . . . Our relationship was tumultuous during the pregnancy, due mainly but not wholly to financial issues. [ 37 ] The affidavit addressed pervasive financial problems, 8 . . . [Mr.

Blake] provided no financial help beyond the occasional bag of diapers. . . . . . . 10. [Katie] and I moved into [Mr. Blake]’s residence in February, 2000. We moved into his apartment as opposed to mine in part because he was the superintendent for his building. His rent was only $300.00 per month, as opposed to $610.00 per month for my own apartment. I gave my two months notice. . . . . . . 18. I returned to work October 01, 2000. We had daycare costs of $140.00/weekly. We never had any joint finances of any kind, but I

asked that he share these costs. I’ll never forget the stunned look on his face when I asked that he help with the daycare costs. I suggested we alternate weeks, and each pay every other week. I think he paid 2 weeks and then never paid again . . . the use of marijuana by Mr. Blake, 12. Prior to the move we discussed [Mr. Blake]’s use of marijuana. He told me that because he had been doing it for so long, he could not give it up. One of the many issues was, how could he afford it? Presumably, he wasn’t contributing to [Katie]’s care because he hadn’t the resources.

He said that he received the marijuana in exchange for making deliveries of it. I decided, and expressly told him, that no marijuana was to be in or near our home if [Katie] and I were to move in with him. He was never to use this (obviously) illegal drug around us. He agreed to this . . . and it provided details of incompatibility and of the separation: 15. [Mr. Blake] was never home. He always seemed to work, but never had any money. We didn’t have mutual friends. We didn’t go out with other couples . . . 16. [Mr. Blake] never got up with [Katie], never bathed her. Never fed her. I prepared her meals.

One day I had a migraine, and I begged him to get up with her. I explained exactly how she had her Pablum. When I got up I asked him if she ate. He said no. I saw the Pablum on the counter. I asked if he prepared it properly. He said no. I asked why. He never responded. This small incident was a typical example of our day-to-day life together. . . . . . . 21. [Katie] and I moved out December 04, 2000. I was about five months pregnant with Emma . . . [ 38 ] The affidavit spoke of access difficulties, in respect of Katie, after separation, 22. I called him several times to ask him to come see [Katie].

I had called him several times about the Christmas holidays, but he never responded to my telephone calls. He never came to the house to see her. On Christmas Eve of 2000, I got a phone call from him telling me that he was picking her up on Christmas morning. I told him no. I explained to him that because he hadn’t seen her for several weeks, and [Mr.

Blake]’s family were in essence strangers to her (they had seen her in the past, but, these visits were sporadic at best, and always at my insistence), I simply wasn’t comfortable just letting him take her away on Christmas Day. 23. [Katie] went through an adjustment period with [Mr. Blake] not there anymore. She became very clingy to me at that time. A transition period was needed in order for [Katie] to feel comfortable being without him, alone and away from home. I invited him to come Christmas morning and watch her open her presents. He didn’t want to do that.

We never heard from him again through the holidays. 24. Over the next several months I sent letters and pictures to [Mr. Blake]. I asked him to come and see [Katie]. I asked him to spend some time with [Katie]. He never responded . . . the birth of Emma, 25. I woke up on May 7 th in the beginning stages of labour with Emma. I called [Mr. Blake]. I left a message on his cellular phone that I was in labour and would like him to be there. I did not hear from him. I called again that afternoon leaving another message asking that he come to the hospital. Still no word from him.

I again called that night to say that we had a girl, and that I named her Emma. I asked that he please come to the hospital to see her. I explained in the message that all friends and family had left, so we were alone. Still, he never came . . . the initial court application, 27. I pursued full custody and support for [Katie] starting in January 2001. Access was never an issue. He never expressed any interest in access during court proceedings. He did not oppose my request for full custody. [Mr. Blake] had in fact disputed paternity of Emma during these proceedings . . . the attempted reconciliation, 30.

In the late summer or early fall of 2001, [Mr. Blake] and I attempted the first stages of reconciliation, although we never resumed living together. This was the first time [Mr. Blake] saw the children since the winter of 2000 . . . 31. We had Christmas 2001 together at my home. [Mr. Blake] had no money for presents for anyone. There were no gifts from him to [Katie] or Emma . . . the lack of contact with Mr. Blake and his family, 32. . . . Things ended just after Christmas of that year (2001). [Mr. Blake] has had no contact whatsoever with the children since that time.

As of this date his family has never seen Emma; never acknowledged her birth. His parents or family have never shown an interest in [Katie] or attempted to see her or expressed any real interest in seeing her . . . 33. Christmas of 2001 was the last time I and the children had any contact with [Mr. Blake]. . . . . . . 36. [Mr. Blake] and I have not spoken outside court proceedings, and he had never asked to speak to or visit the children until this summer, when he sent me a letter threatening that if I did not allow him to re-enter the children’s lives, he would take the matter to

court. I responded with a letter making it obvious that it was unlikely this was in the best interests of the children. Subsequently, I was served with the Notice of Motion which brings us to this point . . . and the affidavit concluded with the request that Mr. Blake not be permitted to “re-enter” the lives of the children: 40. Both Emma and [Katie] are doing very well in daycare. They are growing up to be independent, loving, playful children. To introduce [Mr. Blake] into their lives now, at this stage, I believe would confuse and frighten them . . .

And I am confident that should he re-enter [Katie]’s life only to leave again, to never see her again, this would have a lasting and profoundly negative impact on her . . . the December 2003 affidavit from Mr. Blake [ 39 ] Mr. Blake served an affidavit in December of 2003, as a response to the affidavit from Ms. Stirling. He began by describing their decision to have a child and their incompatibility: 2. . . . she indicated her desire to have children . . . [Ms. Stirling] made and gave me the impression that having children with her would be a great experience for both of us. [Ms.

Stirling] did suggest marriage, but I stated, prior to [Katie]’s conception, that I would not marry her. The fact that I did not want to marry [Ms. Stirling] did not dissuade her from proceeding to get pregnant with our first child, [Katie]. During [Ms. Stirling]’s first pregnancy, I realized that we, once again, were not compatible. It was only because [Ms. Stirling] was pregnant with my child that I attempted to remain a part of her life. It was important to me to be there for our child. [ 40 ] Mr. Blake told of his efforts to be fatherly: 3. . . . I attempted to assist [Ms.

Stirling] in the daily care of [Katie], but [Ms. Stirling] would not allow me to be a father . . . [Ms. Stirling] was possessive of [Katie] and refused to let me develop a fatherly bond with her. [ 41 ] Bizarrely, the affidavit seems to blame Ms. Stirling for allowing herself to be impregnated by a financial failure: 5. [Ms. Stirling] took no extra precautions to prevent us from conceiving a second child even though she knew that my work was sporadic and my wages were low. [Ms.

Stirling], while living with me, was aware that I did not have a job that paid a weekly salary and yet she maintained our relationship and conceived two (2) children with me. [ 42 ] His affidavit denied the trafficking component of the marijuana allegation, 7. [Ms. Stirling] states that I receive marijuana in exchange for deliveries. I deny this statement as it is simply not true. I am not a dealer… and mentioned access problems: 12. [Ms. Stirling] states that my visits were sporadic and always at her insistence. I wish to add that I did want to spend time with [Katie], but because [Ms.

Stirling] insisted the visits take place in her presence, I felt that this was not in [Katie]’s best interests. [Ms. Stirling] and I, at this point, were not getting along and I believed that the stress between us would not be good for [Katie]. It is for this reason only that I stopped visitations with [Katie]. [ 43 ] On the issue of his failure to be present at the birth of Emma, the affidavit stated: 13. [Ms. Stirling] states that she attempted to contact me prior to the birth of our second daughter, Emma. I deny this statement as it is not true.

I did not receive any telephone messages on my cell phone, nor on my home phone. I did speak with [Ms. Stirling] when she called to tell me that she had Emma, but because of our strained relationship, I felt it would not be in anybody’s best interest for me to go to the hospital. [ 44 ] As for not seeking access in previous proceedings, Mr. Blake deposed: 14. I did not request access to my daughters in any of the previous Court hearings as I still believed [Ms.

Stirling] and I were not able to communicate in a manner that would allow us to agree on anything. [ 45 ] The affidavit ended with a request for the involvement of the Office of the Children’s Lawyer (“OCL”): 19. As it is impossible for [Ms. Stirling] and me to communicate in order to come to a resolution regarding access, I believe it would be in the best interest of my daughters to have the Office of the Children’s Lawyer appointed to provide input and/or representation in this case. the 2004 disclosure order [ 46 ] In January of 2004, Walters J. ordered Mr. Blake to provide Ms.

Stirling with copies of his income tax returns for 2001 and 2002 as well as a

summary of his income and expenses for 2003. Mr. Blake continued to lead Ms. Stirling on a merry chase for child support. the 2004 OCL order [ 47 ] In January of 2004, Scott J. made an order requesting the OCL “to provide such services as the Children’s Lawyer deems appropriate.” the 2004 report of the OCL [ 48 ] On March 4, 2004, the OCL consented to investigate and report pursuant to s. 112 of the Courts of Justice Act, R.S.O 1990, c. C.43 and, on June 10, 2004, a report was issued. The report began by describing the concern about access:

Ms. Stirling has expressed concern that Mr. Blake should not be provided access to their children. She indicated that Mr. Blake previously did not request the court to consider an access provision when she was granted full custody of the children. She indicated that Mr. Blake has not been consistent in maintaining access with their children and the children have since developed a positive relationship with her fiancé Mr. [Michael] Peterson. [ 49 ] The report dealt with the fact that Mr.

Blake had been absent from the lives of the children: She further expressed concern that their youngest daughter Emma does not know her father and refers to Mr. Peterson as her dad. Ms. Stirling believes that it would be detrimental to their children’s emotional well being to re-introduce Mr. Blake as their father. According to Mr. Blake, Ms. Stirling has denied him the opportunity to be actively involved in their children’s lives. He indicated that after the separation, Ms. Stirling refused to permit him to have individual time with his daughter [Katie] without being in Ms. Stirling’s presence. Mr.

Blake did not want to expose his children to their ongoing conflict and therefore he chose not to exercise access. Mr. Blake acknowledges that the last time he saw his children was in December 2001. [ 50 ] The parenting skills of Mr. Blake were covered, Ms. Stirling is concerned regarding the environment that Mr. Blake can provide for their children as he has limited parenting skills and has limited financial resources . . . She indicated that Mr. Blake never contributed financially to the cost of raising his children while they were together and remains inconsistent in paying child support. According to Mr.

Blake, he was actively involved in parenting his children from a previous union. He has knowledge of child development and is able to meet his children’s daily needs . . . Ms. Stirling admitted that Mr. Blake was ‘good with [Katie]’ . . . Mr. Blake is cognizant that he will need to re-develop a relationship with his children and is prepared to initially have his access supervised . . . as well as the paternity of Emma: Ms. Stirling indicated that Mr. Blake initially denied that he was Emma’s father. She is concerned that Mr. Blake would reject Emma during access visits. Mr.

Blake admitted that he initially did question Emma’s paternity as she did not resemble his other children. He realizes that this was inappropriate and does acknowledge that Emma is his daughter and that both children will be treated equally. He indicated that he did not attend at the hospital when Emma was born due to the strained relationship between him and Ms. Stirling. [ 51 ] Some of Mr. Blake’s foibles and eccentricities were noted: Ms. Stirling indicated that Mr. Blake is not a positive role model to his children.

She indicated that he does not believe in post secondary education and has permitted his son from a previous union to utilize his home to have parties where there was drugs and alcohol involved. Mr. Blake admitted that he does not believe in post secondary education and that he would be open with his children in discussing their options when making plans for their future. He believes that it is his responsibility to expose them to all the different scenarios in life. Mr. Blake stated that he does not condone alcohol and is uncertain whether his son had parties involving alcohol.

He did state that when his son was 16 he shared a joint with him. [ 52 ] Regarding Katie, the report said, Four-year-old [Katie] . . . is an articulate and friendly little girl. Her mother has indicated that [Katie] displays anxiety when her daily

schedule is disrupted. She has a tendency to pick at her face to cause abrasions . . . According to Ms. Stirling, [Katie] missed her father initially when they separated however now she has little recollection of Mr. Blake and refers to Mr. Peterson as her father. When [Katie] was spoken to, she did not acknowledge that she had another father other than Mr. Peterson and when she drew a picture of her family she drew her sister, mother, Mr. Peterson and herself . . . Janet Saunders of St.

Thomas day care, indicated that [Katie] is a compliant child with no outstanding problems being noted . . . and, in respect of Emma: Three-year-old Emma presents as a happy and energetic child. She appears to have a positive relationship with Mr. Peterson and when seen, she is frequently interacting with him in a positive and affectionate manner . . . Emma refers to Mr. Peterson as ‘daddy.’ According to Ms. Stirling, Emma does not have any memory of her birth father as she was approximately 8 months old when she last saw him. [Janet Saunders of St.

Thomas day care, indicated that] Emma is a strong willed child who can become defiant when she perceives that her needs are not being met. Emma requires additional staff assistance during her temper tantrums and at times has had to be removed from the program until she settles . . . [ 53 ] The report mentioned that Mr. Blake suffers from depression, a personality disorder and social phobias: [8] Dr. Taylor has been Mr. Blake’s family physician for approximately 31 years… Mr. Blake does suffer with depression. Psychiatrist Dr. Wright previously saw him and in the medical report received it indicates that Mr.

Blake has been diagnosed with a personality disorder. [9] Mr. Blake also suffers with ‘social phobias’ and anxiety. [ 54 ] The report ended by making these recommendations: 1. Mr. Blake should have supervised access at the Niagara Child and Youth Services for approximately two hours a week until he has re- established a relationship with his children . . . Once Mr. Blake has re-established his relationship with his children his access should be increased to unsupervised day access with eventual overnight access occurring.

2. A third party should facilitate Mr. Blake’s access with his children. 3. Mr. Blake agreed to refrain from the use of marijuana 24 hours prior to his access with his children. 4. Mr. Blake agreed to provide Ms. Stirling with a copy of his valid driver’s license and car insurance prior to transporting their children. the 2005 counselling order [ 55 ] In February of 2005, Walters J. made an order that Mr.

Blake was to “pay the initial $300.00 retainer necessary to engage the Niagara Child Development Centre [and] thereafter, if further counselling or supervision is required, the cost shall be shared equally between the parties.” the order of June 5, 2006 [ 56 ] Pursuant to minutes of settlement, a final order dated June 5, 2006 was obtained from Scott J. It varied the order of September 13, 2002 so as to provide that Mr. Blake pay monthly child support of $185.00 for both children based upon an annual income of $12,300.00. Ms. Stirling was given custody. An elaborate

schedule of access was specified, including telephone access, Christmas, New Years, March break, Father’s Day, Good Friday, Thanksgiving, the children’s birthdays and the following, at paragraph 4, 4(a) “each and every Wednesday, from after school or 3:15 p.m., whichever first occurs, until 7:00 p.m.”; . . . . . . 4(c) “. . . alternate [weekends] . . . from Saturday at 10:00 a.m. to Sunday at 7:00 p.m. . . .” and, at paragraph 5: 5(d) “. . . for the academic summer recess period, for one (1) week, in either July or August . . . [Mr. Blake] shall advise [Ms.

Stirling] of his choice of week . . . in writing, by March 1 in each year . . .” the two-year ceasefire [ 57 ] The order of June 5, 2006 had the air of a denouement for the parties (or at least it seemed like a workable truce). However, optimism is a wasted emotion in this case. [ 58 ] The ceasefire lasted two years (2006-2008). the 2008 motion by Ms. Stirling [ 59 ] In September of 2008, Ms. Stirling brought a motion to change the access provisions in the order of June 5, 2006, specifically asking that overnight access be suspended.

She also requested that the OCL investigate. [ 60 ] This motion produced a lengthy affidavit from each of the parties. [ 61 ] Ms. Stirling deposed: (I have added headings to promote interest) supervised access and difficulties with overnight access 2. . . . After a period of absence, [Mr. Blake] had supervised access visits with the children through the Niagara and Youth Services beginning September 2005 when Katie was 5 and Emma was 4. 3. In June 2006, the children began their overnight access with [Mr. Blake]. A communication book was to be used as part of our Final Minutes of Settlement. 4.

The girls had a very difficult time with the overnight stays. They were not allowed to call home to talk to me. A note written by [Mr. Blake] on 26/08/2006 asked that I not communicate with them on his access weekends . . . Only recently have the girls been allowed to call home. Katie preferred to Emma? 5. During the early stages of the overnight access . . . Emma said [to me], ‘You don’t love me as much as you love Katie’ . . . She said that her dad told her that I only wanted one baby, not two. I told her that this wasn’t true . . . [Mr.

Blake] stated that he did have a conversation with Emma with regards to this but that he didn’t say I didn’t want her. . . . . . . Mr. Blake insults mother of Ms. Stirling 8. . . . At the end of his access week in August 2006, [Mr. Blake] returned the girls to the Port Weller Soccer Playoffs. The girls came running up to my mother and myself and said that dad had called their grandmother a pig. My mother was very upset. My mother is very close to the girls. [Mr. Blake] did eventually apologize to the girls for calling their grandmother a name.

. . . . . . depression, personality disorder and social phobias of Mr. Blake 11. Dr. Taylor, Family Physician, indicates in the Report of the Children’s Lawyer dated March 4 th , 2004 that [Mr. Blake] suffers from depression, has been diagnosed with a personality disorder and suffers from social phobias and anxiety. Dr. Taylor also indicates that [Mr. Blake] does smoke marijuana. . . . . . . week-end access stress 13. During the summer of 2007, on an access weekend in the late spring, the girls would not leave the backyard. When [Mr. Blake] came to pick the girls up they told him that they did not want to go.

They were crying and when he told them they had to go the crying got worse, to the point that [Mr. Blake] became upset, yelled at me, and left. [Mr. Blake] came back to apologize to the girls and left. I called him the next day and asked if he would like to see them. He said ‘No.’ counselling 14. The girls became more and more stressed each time their weekend with their dad approached. During the school year of 2007, I signed them up for the school counselling once a week . . . They enjoyed their meetings with the counsellor. 15.

During that same summer, the girls and I attended a few counselling sessions with Gerry McCall, B.Th., M.A. through my employer benefits. I attended a few times by myself and once with the girls. However, the girls would not open up to the counsellor in a meaningful way, and so it was felt that counselling would not be productive. Ms. Stirling offers her house for access 16. During the March break in 2008, on the Wednesday, I allowed [Mr. Blake] to use my home to see the girls as he wasn’t able to get rides and had no place to take them. . . . . . . more counselling 19.

In light of everything that I had learned, I suggested to [Mr. Blake] that we temporarily suspend overnight access, and, I offered family counselling. [Mr. Blake] consented. 20. We attended one counselling session with Joan Worthington, MSA, RSW through my employer benefits on April 7 th , 2008. [Mr. Blake] accused me of being there under what he called ‘false pretenses,’ told the counsellor that I was lying, and putting on what he described as a show. . . . . . . access difficulties 23. Katie has made pictures to bring home for me, but, [Mr.

Blake] tells her that she isn’t allowed to bring them home, so, she sneaks them home. In April of this year [2008], the girls are still not allowed to call home. They are not allowed to sleep together, even though they prefer to when they are away from home. The girls have both told me that [Mr. Blake] continues to make negative comments about Michael [Peterson] and my mother. children spooked by Internet research 24. On Sunday, April 13 th , 2008 while tucking Emma into bed she said that they looked up ‘Bloody Mary’ on the internet. I was stunned, and I asked why.

Katie asked her father about Bloody Mary and he told them to research it. They said they saw pictures with knifes stuck into people. They were very scared and Katie got up a couple of times during the night. Emma came and slept with me that night. 25. The next day, I was trying to get the girls to bed. It was after 9:00 p.m., and Emma came downstairs because she said she was scared. She was hearing noises. I asked her why she was scared all of a sudden; we have been in the house for almost 3 years with no problems. She said because it’s what she saw yesterday.

Katie came into the bathroom that evening as well, saying she was scared and couldn’t sleep. She thought she saw a ghost. . . . . . . Katie tells Mr. Blake she does not love him 27. On February 23, 2008, [Mr. Blake] came to pick the girls up . . . Katie told [Mr. Blake] that when she said she loved him that she didn’t really mean it and that she didn’t really love him. I was shocked. [Mr. Blake] began yelling at me and then left the house. I called him on Sunday and asked if he wanted to see the girls as it was his access weekend and also his birthday. He informed me that he didn’t. Mr.

Blake asked to help with dance expenses

28. On Saturday, August 16 th , I registered the girls for dance lessons again. I was overwhelmed with the cost, and called [Mr. Blake] with regards to support. I explained how much dance was (Katie is in her 5 th year of dance) and reminded him that he was behind in support. I also reminded him that if he was going to be late with support on a given month, to let me know and not put me in the position of having to ask. I had asked this of him numerous times before.

I also asked that he stop buying the girls stuffed animals and to buy things they need for school, dance, or clothing. [10] Emma’s birth 29 . . . on Tuesday, August 19 th . . . the girls stated that their dad told them I would not let him come to the hospital when I had Emma. I explained that I called him several times throughout that day and that they could ask Auntie Sharron (Sharron Ruck, family friend) who was with me during the births of both the girls. week-end access with no overnights tried 30. [Mr.

Blake] over the next several months exercised his access on his weeks on Saturday after dance, returned them home by 7:00 p.m. the same day, and, picked them up the next day between 10:00 – 11:00 a.m., and returned them home by 7:00 p.m. that night. . . . . . . still more counselling 38. I am now pursuing counselling for the girls and myself once again. 39. [Mr.

Blake]’s inappropriate choices in discussions, the environment at times in his home (the T.V. shows, the internet access), his anger issues about Michael [Peterson], his complete anger towards me have resulted in the children becoming upset, angry and scared about their visits with him. suspension of overnight access sought 40. Therefore I am requesting temporary suspension of all overnight access only. For weekend access to continue as in the previous months: pick up after dance on Saturday, return at 7:00 p.m. on Saturday; pick up on Sunday at 11:00 a.m. and return by 7:00 p.m. the same evening.

I am asking that [Mr. Blake] seek anger management counselling. I am also asking that he provide proof of a ‘current’ valid driver’s license and insurance if he is driving the girls, as I have asked in the past and he has failed to provide it. He admitted to driving with the girls in the car in December 2007 with no car insurance which he was charged with. [ 62 ] In his responding affidavit, Mr. Blake stated: (again, headings have been added) early difficulties with access 4. On or about December 2000, [Ms. Stirling] and I separated. As a result of this separation, [Ms.

Stirling] made it extremely difficult for me to see Katie and Emma. 5. On or about July 2003, I began requesting access visits with the children, which [Ms. Stirling] refused stating that she felt the children were not ready. supervised access 6. As a result of [Ms. Stirling]’s refusal to allow me access to the children, I agreed to attend supervised access at the NCYS. The supervised access continued for approximately nine (9) months. 7. During the supervised access at the NCYS, my relationship with Katie and Emma had grown into a wonderful relationship. telephone calls from Ms. Stirling during access 8.

When overnight access finally began with Katie and Emma, [Ms. Stirling] would call numerous times. After these phone calls, both Katie and Emma would appear to be upset and it would take me awhile to calm them down. As a result of this, I was reluctant to let Katie and Emma phone home and I felt that I was spending more time trying to calm them down rather than spending quality time forming a bond with them. I believed the phone calls with [Ms. Stirling] were very disruptive and were interfering with our access. . . . . . . 10. I do recall unplugging the phone on one occasion . . . Mr.

Blake calls Katie cold-hearted 12. On or about July 2006, I made a remark to Katie that she was cold hearted, but this was in response to some behaviour that she had exhibited towards her sister. derogatory comment about Ms. Stirling’s mother 13. On or about August 2006, I was having a discussion with Katie and Emma which escalated into a disagreement about family. As a result of a comment Katie made, I made a derogatory comment about [Ms. Stirling]’s mother. As soon as I realized what I had said, I immediately apologized to the girls and told them I was sorry for what I had said.

That day on the soccer field, [Ms. Stirling]’s mother threatened me with harm for saying this about her.

. . . . . . driving without a licence admitted 15. Due to the fact that my driver’s license was suspended for three and a half years by the Family Responsibility Office, I could no longer afford car insurance as it went from $500 per year to close to $10,000.00 per year. In or about 2007, I was charged with driving with no insurance and as a result, I have not driven to any access visits . . . In a desperate move to keep my visits with Katie and Emma, my judgment in regards to my car was clouded. This happened once and will never happen again. Emma calls Michael Peterson “daddy” 16.

On or about March 2008, Katie and Emma had called home and left a message for [Ms. Stirling]. When [Ms. Stirling] returned the call, I was sitting in the room while Katie and Emma were talking to [Ms. Stirling] and at some point I hear Emma ask her mother if daddy was there and she got very excited and wanted to talk to him. At this point, I got upset. [11] I calmly took a cigarette, went outside and kicked a chair that was close to the door when I turned around, I saw that Emma had followed me out to the top of the stairs.

I immediately realized she had seen me and I hugged her and told her I was sorry. 17. . . . The situation with [Ms. Stirling]’s ex-fiancé [Michael Peterson] has caused me great concern and stress as I feel that it’s extremely confusing to Katie and Emma to have a dad and a daddy . . . Up until I was actively involved in Katie and Emma’s lives, [Ms. Stirling] told them that her ex-fiancé was their father. [Ms. Stirling]’s ex-fiancé continues to have access to Katie and Emma on school nights . . . counselling 18. As a result of the problems between [Ms.

Stirling] and myself and for the best interest of the children, I agreed to attend counselling sessions . . . I asked the counsellor almost immediately if we would be dealing with the issue of Katie and Emma believing someone else is their father. When the counsellor responded that this was not an issue and that was not what we were here for, I suggested that I didn’t feel we could get anywhere with these sessions. . . . . . . more Michael Peterson complaints 29. I do not initiate inappropriate discussions with Katie and Emma. If they ask questions, I answer them as best I can.

I do get upset when they tell me that [Ms. Stirling] has told them they do not have to listen to me. I do not agree with the relationship Michael Peterson, [Ms. Stirling]’s ex-fiancé has with Katie and Emma and it is for this reason that I get angry during access visits and telephone conversations. I strongly believe that he has no right to pick them up every week as if he was their father. This man moved out of [Ms. Stirling]’s house in December 2005 and I thought he was gone . . . wants OCL to investigate 30.

I strongly encourage counselling sessions for Katie and Emma, but feel that they would be better benefited by counselling sessions without [Ms. Stirling] present . . . I too believe it to be in the best interests of the children to have the Office of the Children’s Lawyer assess the situation. 31. I do not believe that my overnight access should be suspended until an assessment by the Office of the Children’s Lawyer has been completed. 32. . . . I believe that if my overnight access is suspended, our relationship will suffer. status quo requested to continue 33.

I request my visits stay as per the Order of Her Honourable Madam Justice Scott dated June 5, 2006 . . . [Ms. Stirling], without consulting with me, enrolled Katie in three (3) dance classes a week and this has caused me to lose four (4) hours of my Saturday access as the girls have dance class until 1:30 p.m. anger management counselling not needed 34. I do not feel I need anger management. The only times I have ever shown anger in the presence of my children is when they seem to be confused as to whom their father is. children have been turned against him 35. . . . I believe [Ms.

Stirling] has somehow turned Katie and Emma against me. She has convinced them they have two (2) fathers . . . The person who she has convinced Katie and Emma is their father was only a part of their lives for two years.

I have been unable to form a father/daughter relationship with Katie and Emma because of what their mother has told them about me and she has done everything she can so that no bond between myself and Katie and Emma can be created. the 2008 referral to OCL [ 63 ] On October 3, 2008, Hambly J. made an order referring this matter “to the Children’s Lawyer to provide such services, under s. 89(3.1) and s. 112 of the Courts of Justice Act , as she deems appropriate for the minor children . . .”

the order of October 16, 2008 [ 64 ] Scott J. made a temporary order pursuant to which, at paragraph 2 (

i) and (ii), Mr. Blake was given access “on the first alternating weekend Saturday and Sunday from 2:00 p.m. until 7:00 p.m.” and “on the following alternating weekend from Saturday at 10:00 a.m. until Sunday at 7:00 p.m.” [12] (Consequently, overnight access continued.) Also, it was ordered that Ms. Stirling not telephone the children when Mr. Blake was exercising his weekend access. the 2009 report of the OCL [ 65 ] In February of 2009, the OCL released a report pursuant to the above order of Hambly J.

The report, prepared by a clinical investigator, was based upon interviews with the parties, one family member, a friend, the children and five other individuals (including two family doctors). It included these passages: Mr. Blake’s current access was Saturday from 2:00 p.m. until 7:00 p.m., on Sunday from 10:00 a.m. until 7:00 p.m. and Wednesday from after school until 7:00 p.m. Mr. Blake was seeking overnight access every other weekend from Friday after school until Sunday at 7:00 p.m. and Wednesday from after school until 7:00 p.m.

Their oldest child, [Katie], wanted to visit her dad but did not want to have overnight access and Ms. Stirling did not support it. Ms. Stirling was in a relationship and [Katie] and Emma referred to their step-dad as ‘daddy’ and Mr. Blake as ‘dad.’ Mr. Blake believed that Ms. Stirling had convinced the children that their step-dad was their father and said she appeared to be more supportive of this relationship than his with the children. Ms. Stirling stated that she wanted the children to have a relationship with Mr.

Blake but did not want to force [Katie] to spend overnights until she was willing to. [Katie] and Emma said they were aware that their mother’s partner was their step-dad and that Mr. Blake was their biological dad. Both children expressed a desire to have daytime access with their father; however, [Katie] was adamant that she did not want to spend the night at his home. Due to [Katie]’s refusal to spend the night, Emma followed along, and she too, refused to spend the night . The children were observed at a home observation visit with Mr.

Blake and both appeared to have a close and loving relationship with their dad. They presented as happy, cheerful, and loving towards their dad. During a home observation visit with Ms. Stirling the children were also noted to have a close and loving relationship with their mom. It appears that the children may be confused by the conflict between their parents and torn between their loyalties to each parent. (Emphasis added) Mr. Blake admitted that he has been using marijuana for many years but does not believe that he has an addiction problem.

He stated that his marijuana use does not interfere with his access to the children and he does not use prior to, or during access. Mr. Blake may benefit from addiction counselling to help him learn the long-term effects of marijuana use. Ms. Stirling and Mr. Blake presented as loving parents but appeared to have difficulty putting their differences aside. The strength in both parents is that they recognize that [Katie] and Emma love the other parent.

Both parents appeared to support a relationship with the other parent and are encouraged to role model positive co-parenting to ensure the emotional wellbeing of their children. [ 66 ] The report offered the following recommendations: 1. Sole custody of the children . . . to Ms. Stirling . . . 2. Access to the children, for Mr. Blake . . . as follows: (

a) Alternate Saturdays from 9:00 a.m. to Sunday at noon. (

b) Wednesdays from after school until 7:30 p.m. [ 67 ] Accordingly, the report approved of overnight access for Mr. Blake despite the views of the children (who were then nine and seven years of age, respectively). The balance of the recommendations were: 3. Mr. Blake to transport the children to any extra-curricular activities they are involved in during his access time. 4. Any other access as agreed between the parents. 5. The children to have regularly scheduled phone access to the other parent during access. 6.

Parents to refrain from any negative talk of the other parent, or any extended family members, with, or in the presence, of the children. 7. Mr. Blake to attend individual counselling which includes addiction counselling. 8. Ms. Stirling to attend individual counselling to help her cope with the children’s access with their father. 9. [Katie] and Emma to attend counselling to help cope with the separation from their dad. the order of May 6, 2009 [ 68 ] On May 6, 2009, a final order was made on consent (“the 2009 order”).

The 2009 order is confusing because it begins with these words: “THIS COURT ORDERS on a final basis that paragraph one of the order of Justice Mazza, dated September 13, 2002 and varied by order of Justice Scott, dated June 5, 2006, is further varied as follows . . .” The 2009 order goes on to address various provisions for access. The problem here is that paragraph one of the order of Mazza J. deals with child support and not access. In fact, the order of Mazza J. does not mention access.

[ 69 ] In any event, the 2009 order, which incorporated the recommendations contained in the 2009 OCL report, says this about access: ▪ “Access to the children . . . by [Mr. Blake] shall be on alternate weekends from Saturday at 9:00 a.m. until Sunday at noon . . . and each Wednesday from after school until 7:30 p.m.” (para. 1); ▪ “Any other access as agreed between the parties” (para. 3); ▪ “The children are to have regularly scheduled phone access to the other party during access” (para. 4); Consequently, pursuant to paragraph 1, Mr. Blake was to have overnight access.

It is paragraphs 1, 3 and 4 of the 2009 order that are the subject of the motion to change by Ms. Stirling who wishes all three replaced by an order for access as agreed, and arranged, between the children and Mr. Blake. [ 70 ] The 2009 order further provided that Mr. Blake was to “attend counselling including addiction counselling and shall provide [Ms. Stirling] proof of his attendance and/or registration within 90 days of today’s date” and that Ms. Stirling was to “attend counselling to help cope with the children’s access . . .” [ 71 ] The 2009 order also stated that Ms.

Stirling was “to arrange for the children to attend counselling to help cope with the separation . . .” the 2009 refraining order [ 72 ] On July 23, 2009, I made a refraining order, on consent, requiring Mr. Blake to pay ongoing monthly child support of $185.00 and to make payments of $15.00 each month on account of arrears. the three-year ceasefire [ 73 ] Between 2009 and 2012, the parties enjoyed their second ceasefire. Remember what I said about optimism? the letter of January 11, 2012 from Ms. Stirling [ 74 ] On January 11, 2012, Ms. Stirling wrote to Mr. Blake suggesting that, henceforth, the children and he

schedule access directly with each other: . . . as the girls are getting older and busier we are asking that we have a more flexible visitation arrangement which may or may not include overnight stays. The girls are very involved in extra activities such as dance, hockey, after school activities, social activities and even babysitting. It only seems logical that you and the girls

schedule your own times, whether it’s dinner, special events, sleepovers, at times that work for all three of you . . . the letter of January 30, 2012 from Mr. Blake [ 75 ] In a letter dated January 30, 2012, Mr. Blake replied to Ms. Stirling: . . . In regards to your request for a more flexible visitation agreement, I flatly refuse that. You have spent 10 years doing everything you can to alienate me from my girls including supplanting fathers in my girls lives to more confuse who I am to them . . .

You have made it impossible for me to form any kind of meaningful, lasting relationship with my girls by continually talking negatively about me. I would also ask you to stop yelling and belittling me in front of the girls or discussing anything between us with them . . . [ 76 ] These letters set the stage for the two motions now before the court. the Stirling motion to change [ 77 ] On February 15, 2012, Ms. Stirling commenced her motion to change. She sought a variation to the access provisions of the 2009 order. Rather than Mr.

Blake having access to the children on alternate weekends and on Wednesday after school, she asked “for reasonable access with reasonable notice as arranged” by the children and Mr. Blake. She explained, in her supporting affidavit (much as she had expressed in her letter of January 11, 2012), that “the children are becoming older and very involved in extracurricular and social activities. The children are enrolled in the French Immersion Program and have a heavier school load that requires extra studying and commitment.” She stated, “I request a more flexible access

schedule as agreed by [the children and Mr. Blake] . . .” The affidavit alleged that the children “do not want to stay overnight” with Mr. Blake and “after several years are still not comfortable staying overnight.” [ 78 ] The supporting affidavit of Ms. Stirling contains numerous complaints about Mr. Blake. However, when this matter reached trial, those complaints were jettisoned. The position of Ms. Stirling was streamlined to be that the age of the children and their wish to have a say in the type, frequency and flexibility of access exercised by Mr.

Blake mandated a change in the 2009 order. the Blake motion to change [ 79 ] Mr. Blake responded with his own motion. Not content to simply oppose the relief sought by Ms. Stirling, he asked for custody. [13] In his material, Mr. Blake did not identify the order he wished changed (the 2009 order is silent as to custody). Presumably, it would be the order of June 5, 2006 which, I think, is the last order to have addressed custody. [ 80 ] Mr. Blake alleged in his material that: “[Ms. Stirling] is determined to cut [me] out of the children’s lives and [she] has actively

engaged in a campaign of parental alienation”; “[Ms. Stirling] has, on many occasions, attempted to embarrass [me] in the presence of the children in an attempt to interfere with [my access]”; “[Ms. Stirling] has, from the outset of this court case, attempted to remove [me] from the children’s lives by continually introducing new men into their lives, one of such men, the children even called ‘dad,’ . . . [and] continually contacting the children when they are with [me] . . .” [ 81 ] The affidavit described an incident on February 25, 2012, when, he alleges, Ms.

Stirling refused him access and he contacted police who attended at her residence. [14] [ 82 ] In his material, Mr. Blake also asked for an order appointing the OCL to conduct an investigation, provide a report and make recommendations to the court. [ 83 ] Mr.

Blake alleged that his case is one “of severe parental alienation.” He complained, in his affidavit, that “in the past two investigations [by the OCL] the social workers assigned to the case did not take notice of the case law I provided to them.” He requested “a lawyer be assigned . . . so that perhaps this time the case law will be read.” Attached to his affidavit was a copy of a decision in a case dealing with parental alienation. yet another referral to the OCL [ 84 ] On May 3, 2012, Whitten J. made another order referring this matter “to the Children’s Lawyer to provide such services, under s. 89(3.1) and s. 112 of the Courts of Justice Act , as she deems appropriate for the minor children . . .” III.

Evidence [ 85 ] The evidence on the motions came from four witnesses. Cynthia Katz [ 86 ] The first witness to testify was Cynthia Katz. She is in private practice as a custody and access evaluator. She also is a clinician with the OCL. Her curriculum vitae reveals much experience in the areas of separation, divorce, family conflict and custody and access issues. She was assigned by the OCL to assist Ms. Workman, the Children’s Lawyer. [ 87 ] Ms. Katz was questioned in-chief by Ms. Workman and cross-examined by the parties. [ 88 ] The main purpose for the testimony of Ms.

Katz was to bring before the court evidence of the views and preferences of the children, to the extent they can reasonably be ascertained. She testified in a straightforward manner. I was impressed with her thoroughness and her fair-minded perspective. [ 89 ] Ms. Katz interviewed the children, in the absence of their parents, on three occasions and gave this evidence: (

a) The children are successful in school. (

b) Their preference is to arrange access directly with Mr. Blake. (

c) Katie described the Wednesday access as “a bit boring.” (

d) The children do not want overnight access. They discontinued the overnight week-end access in February of 2013 (five months before trial). (

e) Katie would “be happy to go to” her father’s apartment in Grimsby for “a few hours” and watch television and do her homework during the day, but then return to her mother’s house in St. Catharines. However, Mr. Blake said “No” to the idea because of the gas expense and the amount of time it would take. (

f) Emma and Katie told Ms. Katz that Mr. Blake’s apartment is “not clean” and “smells of cigarette smoke.” (

g) When asked by Ms. Katz whether they would think differently if Mr. Blake were to clean the apartment and not smoke, the children did not believe he could sustain the effort, as he has tried to do so, unsuccessfully, in the past. (

h) Ms. Katz asked Emma if she would like to bring a friend with her on the Grimsby access. She stated that she would be embarrassed (because of the state of the apartment). (

i) Ms. Katz got the sense that Ms. Stirling was encouraging the children to contact Mr. Blake to arrange access. (

j) The children told Ms. Katz that their mother was “fine” with whatever access they arranged with their father. (

k) Emma has been a child of conflict all of her life and Katie, nearly so. Katie told Ms. Katz that her father “gets angry easily.” When her parents argue on the telephone, she can hear her father “yelling at the other end.” (

l) Ms. Katz is familiar with the notion of “parental alienation” and defined it as the systematic maligning of one parent by the other such that the relationship of the former with his or her children is, over time, damaged, if not destroyed. She did not detect any hint of parental alienation; no sign of pressure on the children not to see their father; no indication of the children parroting negative views of Mr. Blake as expressed by Ms. Stirling (for example, no disparaging comments arising from Mr. Blake’s repeated reluctance to pay child support). [ 90 ] Ms.

Katz found the children to be consistent in their preference for: (1) some limited access, as arranged by them with their father; (2) no overnight access; and, (3) flexibility with the scheduling of access.

Ms. Stirling [ 91 ] Ms. Stirling, 49 years of age, has been employed for 20 years as a caseworker with the Ontario Disability Support Program. As I have mentioned, currently, she is living common law with a 55-year-old separated male. [ 92 ] Ms. Stirling testified that she has not done anything to discourage the children seeing their father. (I assume that she means, in recent years.) In fact, she has encouraged access, having suggested that the girls take their father to the Mandarin Restaurant on Father’s Day. [ 93 ] She described the child-support payments of Mr.

Blake as sporadic and his driver’s licence was suspended at some point for non- payment. (The issue of child support was only touched upon briefly by Ms. Stirling, as it is not germane to the motions now before the court. Child support was a source of great friction in the early years. However, Ms. Stirling seems to have resigned herself to the permanent receipt of inadequate and infrequent child support, recognizing that Mr. Blake is fiscally inept.) [ 94 ] Ms. Stirling gave evidence that both of the children are enrolled in French Immersion.

Katie is heavily involved with dance (it occupies three nights of her time each week, plus there are workshops and recitals). Emma plays organized hockey and recently was named athlete of the year at her school. [ 95 ] For the girls, “friends, movies and the Mall are big activities.” [ 96 ] She said that the children complain that their father takes them to movies that are “too young” for them. [ 97 ] Ms. Stirling stated that, for Katie and Emma, the current access problems are “simply a flexibility issue and the state of [Mr. Blake’s] apartment.” [ 98 ] Her testimony was brief, focused and believable. [ 99 ] Ms.

Stirling did not call any witnesses. Lori Nicoletti [ 100 ] The first witness to testify for Mr. Blake was Lori Nicoletti, his 49-year-old sister. I am uncertain what Mr. Blake intended to accomplish through her evidence, as she shed little light on the issues raised by the motions (which is unfortunate, because she struck me as a sincere person). [ 101 ] Ms. Nicoletti sees her brother once or twice each week and she talks with him on the telephone “every night.” Consequently, I was surprised how little she added to the case. [ 102 ] She testified that she was aware Mr.

Blake had been treated for depression and that recently he informed her he had been diagnosed with a personality disorder (a diagnosis with which she disagreed). Mr. Blake did not share this last piece of news with her until it had been raised in the legal proceedings (which I found strange, when one considers their daily contact and purported closeness). Also, she agreed that her brother uses marijuana daily (a fact he does not dispute). [ 103 ] She also confirmed that, in December of 2002, Ms. Stirling had told her that she (Ms. Stirling) would “drop” all support claims if Mr.

Blake would give up his rights to the children. (I accept this evidence as accurate. It is inherently probable, when one considers the climate and circumstances of that era.) Diane Bain [ 104 ] Diane Bain is the landlady of Mr. Blake. He lives in the apartment one floor below her Grimsby office. Mr. Blake called her as witness to establish the cleanliness of his apartment. She has an agreement to enter the apartment whenever she wishes, as the breaker panel for the entire building is located there.

She has been in the apartment “six times in the last six months” and, when asked whether she had ever “seen the unit filthy,” she answered, “No.” [15] [ 105 ] Ms. Bain was eager to help Mr. Blake in his case. However, this litigation involves more than a dirty bathtub. Mr. Blake [ 106 ] Mr. Blake is a 55-year-old, self-employed painter, sometimes likeable, frequently articulate and always passionate. He has been married, divorced and is a grandfather and, like so many of the poor souls who amble into Family Court, he has not learned from his mistakes. He is too busy perfecting them. Mr.

Blake dances to the tune of a different drummer. [16] Apart from being financially irresponsible, I found him to be a decent man and a truthful witness (but with the truth occasionally defined by his view of reality). [ 107 ] Mr. Blake commenced his testimony with a detailed review of the relationship that he had with Ms. Stirling in the period 1999- 2001. It is obvious that he is fixated on the early years of his separation. He described Ms. Stirling as controlling and manipulative and I think that, in the beginning, this assessment was accurate; but, I find, now much less so. [ 108 ] My sense is that Ms.

Stirling was very difficult in the first few years after the separation and that ill will flowed like free wine. Some blame for that must fall to Mr. Blake who has a contemptible record for paying child support (having lost his driver’s licence for non-payment and even shamelessly being in arrears as of the date of trial). [ 109 ] He admitted in his evidence that “on two or three occasions” he lost his temper in front of the children (once kicking a piece of furniture). He apologized to them at the time and seems to think his temper is a stale issue to be forgotten.

[110] After making a point of defending the cleanliness of his apartment, he freely admitted that his premises “have clutter.” As he put it,the clutter consists of the evidence of “all of the past activities” of his children. Apparently, over the years, whatever the children havedone in his apartment, he has left in place as some sort of shrine.[17] [111] Mr. Blake holds strong views on many topics. He is evangelical about marijuana and will debate anyone (including judges) on itsmerits over, for example, alcohol.

He has little affection for the French language, labelling it useful “only in government offices.” Ratherthan be supportive of the efforts of his daughters with French Immersion, he insensitively complained to them about having the language“rammed down their throats.” Yet, one of his strongly held views is beyond reproach: the importance of reading books. On most of hisaccess visits he purchases a book for each of his daughters.[18] [112] There also is a stubbornness to Mr. Blake. When, in February of this year, the children ceased week-end overnight access, Mr.Blake did not

schedule or seek week-end daytime access (which would have been agreeable to his daughters). It was all or nothing forhim.[19] [113] Once, he dropped by, unannounced, at the residence of Ms. Stirling and her common law spouse and took offence at being asked,“Why are you here?” [114] Mr. Blake does not have a good memory. For example, he cannot recall the arrangements that were made for access this pastChristmas and he is unable to remember the graduation of one of his daughters two years ago.[20] IV Discussion material change in circumstances required [115] Ms.

Stirling moves to vary the access provisions of the 2009 order. In his motion, Mr. Blake seeks a variation of the custodyprovisions of an earlier order.

Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) requires a material change incircumstances before a custody or an access order may be changed: 29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unlessthere has been a material change in circumstances that affects or is likely to affect the best interests of the child. [116] The “change in circumstances” needed to satisfy s. 29, firstly, must be “material.” A “material” change means a “significant” or an“important” change.

Secondly, it is not any material change that concerns the court. It is only a material change that affects, or is likely toaffect, the best interests of the child or children. [117] Because s. 29 speaks of a “change,” it is implied that something must have occurred since the prior order to trigger the operation ofthe section. Most often, that “something” is an event or a series of events; rarely, it can be the recent discovery of evidence in respect ofsomething predating the prior order. In the former, the prior order is taken to be correct and reasonable; in the latter, it is called intoquestion.

The distinction between this last scenario and an appeal is too tortured to articulate and will be ignored here rather thanexplained. In Family Law, all rules bow (or at least bend) to the best interests of children.[21] has there been a material change in circumstances? [118] When the 2009 order was made, Katie was almost 10 years of age and Emma one day short of her eighth birthday. Today, Katie is13½ and Emma 12. In access cases, the passage of time alone can amount to a material change in circumstances.

Here, that fact, coupledwith credible evidence that the children desire a voice (and more flexibility) in their access with Mr. Blake, clearly supply the materialchange in circumstances required by s. 29. is evidence pre-dating the prior order admissible on a change motion? [119] Once a material change in circumstances has been established, evidence pre-dating the prior order is admissible if it is relevant tothe best interests of the children: see Segal v. Segal (2002), (ON CA), 26 R.F.L. (5th) 433 (Ont. C.A.), at para. 3.

Inother words, upon proof of a material change in circumstances, the court must not restrict its function merely to considering a variationreflecting the material change. [120] If there is no evidence predating the prior order that is helpful, the court will consider the best-interests issue in the context of thechanged circumstances. In other words, what order will be in the best interests of the children in those circumstances? [121] When the court gets to best-interests considerations, this brings into play s. 24 of the CLRA.

section 24 of the CLRA [122] After the material-change-in-circumstances threshold has been met, the court proceeds to a fresh inquiry into the best interests ofthe children, having regard to the matters set out in s. 24 of the CLRA: 24(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the bestinterests of the child, in accordance with subsections (2), (3) and (4).

(2) The court shall consider all the child’s needs and circumstances, including, (

a) the love, affection and emotional ties between the child and,

(

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (

b) the child’s views and preferences, if they can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (

e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (

f) the permanence and stability of the family unit with which it is proposed that the child will live; (

g) the ability of each person applying for custody of or access to the child to act as a parent; and (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. indiscriminate re-litigating to be avoided [ 123 ] On a change motion, care must be taken not to embark on an indiscriminate re-litigating of the grievances of the parties predating the order in respect of which the change is sought. As a practical matter, in most cases evidence predating the order will only be helpful to the court where it is connected to the material change in circumstances.

However, the fact that the court is always vigilant of the best interests of children means that all evidence pertaining to those interests must be considered. evidence predating prior order not helpful at bar [ 124 ] Mr. Blake yearned to tell his story from beginning to end. However, his “beginning” was 1988. I discouraged testimony from Mr. Blake relating to events predating the 2009 order (I do not recall that I forbade such testimony; but I informed Mr. Blake that it was not helpful to me in my task).

I did so because I was prepared to accept his position that there was, at some time prior to the 2009 order, evidence of parental alienation. [22] Indeed, I was willing to accept, as probably true, every allegation that Mr. Blake made against Ms. Stirling. Resorting to the vernacular, Ms. Stirling knew how to push his buttons (and Mr. Blake has many buttons from which to choose). [ 125 ] I mention now (what may only have been deduced to this point) that the entirety of the Background, in

Part II of these Reasons, was culled from the court file. It is not evidence in the trial of the motions, except as to orders made and proceedings brought. Allowing Mr. Blake to reiterate the events of the past 13 years or so may have assuaged his psyche, but it would not have assisted the court in deciding whether the views and preferences of the children had been narrated accurately and whether they should be determinative of the motions.

In the circumstances of this case, there is nothing predating the 2009 order that is relevant to my function of ascertaining what is in the best interests of the children today. [ 126 ] Why did I go to the trouble of devoting so much time to “evidence” that did not assist me with the final disposition of the motions? Putting aside, for the purposes of this discussion, whether I have a personality disorder, I want Mr.

Blake to know that I am aware of his position and his historical complaints and that I am prepared to accept them as accurate, but, in the end, they cannot off-set the current views and preferences of his daughters (who, hardened by years of dysfunction, are, in some ways, mature beyond what the calendar would indicate). [23] what statutory considerations have I applied in the s. 24 inquiry? [ 127 ] The predominant statutory consideration in this case is s. 24(2)(b) – “the child’s views and preferences,” because those views and preferences are ascertainable.

None of the other considerations in s. 24(2) was sufficiently strong in favour of Mr. Blake to outweigh s. 24(2)(b). In other words, placing the most favourable light possible on Mr. Blake, the scales are tipped against him because of the views and preferences of the children. Consequently, I will address the other considerations in s. 24(2) only briefly: ▪ “the love, affection and emotional ties between” the children and their parents (s. 24(2)(a)) – those ties exist with Mr. Blake, but they are stronger between Ms.

Stirling and the children; ▪ “the length of time the [children have] lived in a stable home environment” (s. 24(2)(c)) – the children have lived with Ms. Stirling all of their lives and, although one could argue that the revolving-door approach that Ms. Stirling has adopted with the men in her life is destabilizing, the option presented by Mr. Blake is not better, merely different; ▪ “the ability . . . of [the parties] . . . to provide the [children] with guidance and education [and] the necessities of life” (s. 24(2)(d) – Mr.

Blake, in addition to being eccentric, concedes that he cannot support himself and so he loses out to Ms. Stirling on this consideration; ▪ “the plan proposed by [the parties] . . . for the [children]’s care and upbringing” (s. 24(2)(e)) – The plan proposed by Mr. Blake lacked detail and insight into the needs of his children and ignored their views and preferences; ▪ “the permanence and stability of the family unit with which it is proposed that the [children] will live” (s. 24(2)(f)) – Although I would be inclined to give Ms. Stirling only a C+ in respect of this consideration, the grade for Mr.

Blake is no better (he fares well on “permanence” but not on “stability”); ▪ “the ability of [the parties] . . . to act as a parent” (s. 24(2)(g)) – This consideration favours Ms. Stirling, as Mr. Blake is too

complex psychologically to be entrusted with parenting adolescents. [ 128 ] It is a trite observation to say that the wishes of children and that which is in their best interests are not necessarily one and the same. However, here they are. orders that I almost made [ 129 ] I was alarmed when I heard that Mr. Blake uses marijuana with

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