The parties have been separated since 2006. The parties are the parents of two teenaged children. In 2013, there was a Final Order made that stipulated that the children shall reside primarily with the mother with alternate weekend and a couple of week-day afterschool parenting time visits with the father. The mother would also have decision-making authority for the children. The Order was made on consent by both parties.

Since then, the parties began having serious conflict. The mother’s lawyer wrote to the father alleging that the father threatened to self-harm, that the father interrogates the children during his parenting time; that the father reprimands the children for spending too much time with their mother; and that the children have been given the silent treatment. The court was especially concerned with the following quote from the same letter: "the children will no longer be attending access until they are both able to obtain the necessary counselling that they require."

The court noted that there was no Motion to Change nor any steps taken to properly change the existing Final Order. The mother unilaterally decided to suspend parenting time in breach of the Order As a result, the father had to bring an urgent motion which was held three months after the father had not seen the children.

Analysis

The court was displeased with the mother’s Affidavit containing her concerns of father as she provided nothing more than hearsay statements. Specifically, the court found that the mother’s allegation that the father threatened self-harm and made insulting statements to the children were unsubstantiated and lacked critical details, such as date and time of such events. In addition, while the mother referred to an allegation that she made to the Children’s Aid Society in 2008, the court noted that the current Final Order was entered into on consent several years afterwards.

In reviewing the father’s response to the mother’s position, the court noted that the father flatly denied the allegations and that his parenting time with children have always been a happy and an enjoyable one. The father’s position was that he simply wanted the parties to follow the current Final Order.

Given the lack of evidence to substantiate the allegations being made, the court noted that it could not justify changing the existing court Order. If the mother had real and serious concerns, she could bring a Motion to Change. She could additionally seek the appointment of the Office of the Children’s Lawyer within that Motion to Change, to give the children an opportunity to feel heard. Before the court makes a new Order, the court noted that the mother has an obligation to ensure that the current Final Order is followed. As such, the court ordered that the parenting schedule stipulated in the current Final Order be reinstated.

As an aside, the court noted the inappropriateness of the mother’s decision to submit affidavits of the children as evidence before the court that they did not want to see their father. The court aptly described same as follows: “I can think of no action that would place children more squarely in the middle of their parents' conflict than having them prepare affidavits for their parents' litigation.”

This case reminds us of the importance of providing documentary evidence as well as following proper procedures. One should reach out to a family law lawyer that can guide them through the court process to achieve a desirable outcome.

For more information, please call us at Feldstein Family Law Group P.C. at (905) 581-7222 or contact our firm online.