CITATION: Foley v. Foley, 2016 ONSC 4925
COURT FILE NO.: 4409/07 M1
DATE: 20160802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Elizabeth Ann Foley
Applicant ) Unrepresented
– and –
Patrick Allan Foley
Respondent ) Kathryn J. Pirie, for the Respondent
HEARD: June 6 -10, and 16, 2016
REASONS FOR JUDGMENT
WILCOX, J.
INTRODUCTION AND OVERVIEW
[1] Elizabeth Ann Foley (Beth) and Patrick Allan Foley (Allan) were married on September 9, 1989, separated September 15, 2007 and were divorced December 3, 2010.
[2] There are 3 children: Benjamin (Ben) James Foley, born August 13,1993, now age 22, Samantha Sylvia Foley, born March 11, 1996, now age 20, and Abbeygayle (Abbey) Lila Foley, born April 30 2002, now age 14. Ben and Samantha were adopted by the parties in 1994 and 1996 respectively. Abbey is the parties’ natural child.
[3] The family was living in the New Liskeard, Ontario area at separation, and continued to do so immediately afterwards.
[4] At separation, Beth left the matrimonial home with all three children. Ben was living with Allan by late 2007. Samantha was living with Allan from early 2008. Abbey was living with each parent week about, from August 2008, when she was age 6.
[5] Litigation resulted in the final order of I.M. Gordon J made December 14, 2009 pursuant to minutes of settlement. Its terms are set out here in full:
CUSTODY AND ACCESS
1. The parties will have joint custody of the children, Benjamin James Foley, male born on August 13, 1993, Samantha Sylvia Foley, female born on March 11, 1996, and Abbeygayle Lila Foley, female born on April 30, 2002.
2. Abbeygayle will reside with the Applicant and Respondent on an alternating week basis, residing with the Applicant one week, and the Respondent the following week, with the exchange occurring on Friday afternoons at 4:00 p.m..
3. The parties shall be entitled to the following access to children, regardless of whose care Abbeygayle is in at the time:
• One half of March Break, commencing on Wednesday at 4:00p.m. for the parent who does not have the care of Abbey at the time, and access to Ben and Sam during the March Break at their discretion;
• The Applicant shall have the children for Mother’s Day;
• The Respondent shall have the children for Father’s Day;
• Each parent will be entitled to a visit with Abbey on her birthday and visits with Ben and Sam on their birthdays will be at their discretion;
• Thanksgiving and Easter weekends will alternate between the parties such that when the Applicant has the children for Easter, the Respondent will have the children for Thanksgiving in the same calendar year and vice versa with the following year commencing with the Respondent having Easter weekend in 2010, with access to Ben and Sam at their discretion;
• The parties will alternate Christmas access each year commencing Christmas Eve day at 4:00 p.m. until Boxing Day at 12:00 noon with the Applicant having Christmas day in 2009, and otherwise the regular access schedule will apply;
• The parent who does not have Christmas Day access in any given year will be entitled to have the children from New Year’s Eve at 4:00 p.m. to New Year’s Day at 4:00 p.m.;
• Such further and other access arrangements as the parties may agree to in writing from time to time.
4. Neither party will place any pressure on the children to spend time with them, or tell the children that they have chosen one parent over the other, or in any way verbally abuse the children, if the children choose to spend time with the other parent.
5. Neither party will drive a vehicle with the children while under the influence of alcohol, non-prescription drugs or prescription drugs which impair their ability in any fashion.
6. When Abbey is in the custody of either parent who requires overnight babysitting for Abbey, that parent shall provide an opportunity to the non-custodial parent to have care of Abbey.
7. Each parent will advise the other parent 24 hours in advance of any plan to leave the jurisdiction of Temiskaming with the children.
8. Both parents may attend all school functions and have full access to all health, school and recreational records relating to the children. Both parties may make inquiries and be given information by the children’s doctors and health care providers, teachers, school officials, or others involved with the children. Each parent may obtain his or her own school calendars and school notices.
9. If either parent proposes to change his or her residence to move outside of the District of Temiskaming, that parent will give the other parent at least 90 days notice of that intention along with details as to where that parent plans to move, the reason for the move and who that parent will be living with, if applicable.
10. The Applicant shall ensure that the children do not have any contact with her brother, Fred Adair, that he does not reside in her residence with her, and that he is not in a vehicle with them.
11. The parties will consult on all major decision regarding the health, education, religion and general well being of the children, however, in the event that they are unable to agree on any particular issues, the Respondent will have the final decision making authority with respect to Benjamin and Samantha.
12. If a child needs emergency medical care while with one parent, that parent will promptly notify the other parent of the emergency.
13. Both parties shall have reasonable telephone access to the children while in the other’s care.
14. Neither party shall ask the children to report on the whereabouts of the other parent, save and except to ask whether the other parent is home.
15. The parties will not harass or speak ill of each other, and will not speak to each other in a derogatory fashion, swear at or about one another, or call one another names whether in front of the children or otherwise. They will not speak in a derogatory fashion about the other party’s friends, acquaintances or partners or refer to the other’s partner in any other vulgar or derogatory language.
CHILD SUPPORT
16. The Respondent shall not pay any child support for Benjamin and Samantha.
17. The Respondent shall pay child support for the child Abbey in the amount of $450.00 per month payable on the 1st day of each month, commencing February 1, 2010.
18. The parties will split equally the cost of Abbey’s extracurricular activities including one dance class, dance clothing and dance footwear and such other extracurricular activities as the parties may agree to. Abbey will not be enrolled in any additional extracurricular activities by either parent without the consent in writing of both parents.
19. The child support is not taxable in the hands of the recipient and is not deductible for income tax purposes by the payor.
20. The Respondent has not been paying child support to the Applicant for Benjamin since January 1, 2008 and will be entitled to claim him as a dependent on his 2008 tax return, should he decide to resubmit the 2008 tax return to Revenue Canada.
21. The Respondent has not been paying child support to the Applicant for Samantha since July 1, 2008 and will be entitled to claim Benjamin or Samantha as a dependent on his 2009 tax return and all future tax returns.
22. The Applicant will be entitled to claim Abbeygayle as a dependent on her 2008 and 2009 tax returns and in every year thereafter.
SPOUSAL SUPPORT
23. The Respondent will pay spousal support to the Applicant in the amount of $2,060.00 per month payable on the 1st day of each month commencing on February 1, 2010 subject to the following:
• In any event, the issue of spousal support may be reviewed, within three years of the date this Order at the Respondent’s request.
• Spousal support will be terminated in the event that the Applicant remarries or cohabits in a relationship of permanence which is equivalent to a common law relationship;
• The Applicant will provide the Respondent with notice within 30 days of obtaining any employment and such employment will be regarded as a material change effecting the quantum of spousal support;
• The Applicant will remain on the Respondent’s benefit plan for so long as she is entitled to.
24. The Applicant must make every effort to contribute to her own support, find a job and become self-employed and will provide the Respondent with proof of her efforts by February 1, 2011 and once a year thereafter, by February 1 of each year.
RECEIPTS
25. The Applicant shall promptly provide the Respondent with receipts for the child and spousal support paid by the Respondent during the 2009 taxation year by January 31, 2010 and every year thereafter, by no later than January 31 of the year following the applicable taxation year.
TAX RETURNS
26. Each party will file an Income Tax Return each year and each party will provide the other with a copy of their Income Tax Returns and their Notices of Assessment by July 31 of each year.
EQUALIZATION
27. The parties shall receive the following, in full and final satisfaction of all claims to equalization of the family assets, debts, the pension of the Respondent, the possession of property, ownership of property, and the division of property:
• In addition to the equalization already received, the-Applicant will receive a further payment of $45,000.00 from the Ramsay trust funds and the Respondent will receive the balance of the Ramsay trust funds.
• The Applicant will also receive the matching hutch for the dining room set and the pine bookshelf and she will make her own arrangements to load and transport those items from the residence of the Respondent before January 31, 2010.
REPLACING ALL ORDERS
28. This Order will replace all previous Orders made in this matter except the support provisions which will not commence until February 1, 2010, as set out above.
COSTS
29. Each party will bear their own costs.
30. This Order bears Post-Judgement interest at the rate of 2 percent per annum effective from the date of this Order where there is default in payment. The payment in default shall bear interest only from the date of default.
[6] Ben and Samantha are now living independently and are not the focus of these proceedings. Abbey has refused the week abouts and most other access with Allan since July 11, 2014.
[7] Allan increased child support to $2,019.00 per month as of then, has never missed or been late with a court ordered child support or spousal support payment since separation, and has made other payments in addition. Nevertheless, there has been conflict over finances. He has made the annual financial disclosure, but Beth has not. Although Allan has repeatedly provided Beth with copies of her updated résumé at her request, she has not provided proof of her efforts to find employment.
[8] In the circumstances, Allan’s Motion to Change, issued October 24, 2014, seeks to amend or delete many terms of the final order of December 14, 2009. In summary, he alleges that there has been a material change in circumstances in that Beth has alienated Abbey from him and his extended family, has breached the order repeatedly, has placed Abbey at risk of serious emotional and psychological harm, and has failed to provide Abbey with the necessities of life. Therefore, he requested that he have custody of Abbey, that Beth’s access to Abbey be supervised, and that his child and spousal support payments be terminated.
[9] In response to the Motion to Change, Beth disagreed with Allan’s claims and made claims of her own for sole custody of Abbey, for Allan’s access to Abbey to be at Abbey’s discretion, for child support including special or extraordinary expenses, and for spousal support. She alleged that Abbey wanted to live full time with her because of Allan’s actions, and that Allan’s income had increased substantially.
[10] Both parties are from Parry Sound, Ontario and went to high school there. Beth is age 55. After high school she obtained a medical secretary diploma. She worked in various jobs over the years. Since separation, she has resided in several residences in New Liskeard and Haileybury, Ontario (both are part of the City of Temiskaming Shores), often with stays at the Pavilion Family Resource Centre in between. She remains single.
[11] Allan is age 56. He has a bachelor’s of science degree in forestry and has worked at a series of jobs at the forest industry in northeastern Ontario. Currently, he is president and COO of his own forestry company in New Liskeard. After separation, he rented a house in New Liskeard before purchasing one there, which he retains.
[12] Allan met and began a relationship with Nicole Rochefort (Nicole) in February, 2008. They were married August 18, 2012. She lived and worked in North Bay, Ontario and had four sons from her previous marriage: Zachary, age 24, Jacob, 22, Maxim, 18 and Simon, 15.
[13] Allan and Nicole have maintained their separate residences largely for the sake of their respective children and throughout much of their relationship spent weekends and holidays together. As of October, 2015, Allan has been residing primarily with Nicole in North Bay, but is at his residence in New Liskeard two to three days per week.
[14] At the time of the hearing of the Motion to Change, Abbey was 14 years old, living with Beth in New Liskeard, and in grade 8. Her main extracurricular activity is dancing in which she is heavily involved and which was the focus of much of the difficulty between the parties.
[15] Frequent mention was made of the Foley family cottage property on Huckleberry Island in Georgian Bay in Parry Sound. The initial cottage was bought there around 1961 by Allan’s parents and other family members. Over the years, additional cottage properties have been bought nearby by various family members, including Allan. Succeeding generations of the extended family continued to meet on the island for holidays and weekends to this day.
[16] The North Eastern Ontario Family and Children Services (NEOFACS) a children’s aid society, commenced a child protection application for Abbey in July, 2012, at which time she was in Beth’s care full time. The application states that the society had been involved on and off with Beth since January, 2007, with ongoing concerns for the condition of her home and her lack of cooperation with NEOFACS. NEOFACS and the fire department determined that the extreme clutter in her residence was a safety hazard and had tried to work cooperatively with her to rectify the situation. She was resistant, and the clutter had gotten worse. On July 3, 2012 the fire department had to access her residence because of a fire in an adjoining apartment. They found the residence to be hazardous and unlivable due to clutter, such that she would not be allowed back in until the Fire Marshall approved it. NEOFACS inspected the residence and confirmed the situation. It then brought the aforementioned child protection application, alleging that there was a risk of physical harm to Abbey caused by Beth`s pattern of neglect. The society sought a supervision order for when Abbey was in the care of Beth, but had no protection concerns when she was in Allan’s care. On August 29, 2012 it obtained a temporary order to that affect. A voluntary agreement was entered into between Beth and the society on April 24, 2013.
EVIDENCE
[17] Allan put a great deal of documents and facts into evidence through Requests to Admit that were not responded to. These included numerous text messages, e-mails, letters, transcripts, reports and other documents, including eleven volumes of NEOFACS records. In addition, the court heard oral evidence from 6 witnesses for Allan, including himself. Beth testified on her own behalf, but called no other witnesses.
DR. SALTSTONE’S EVIDENCE
[18] Dr. Robert Saltstone has a Ph.D. in psychology and is a clinical psychologist who was qualified in court, on consent, as an expert in clinical psychology, specifically in custody and access assessments and parenting capacity assessments, including the issue of parental alienation.
[19] He had signed a form 20.1 acknowledgement of expert’s duty as had Dr. Mary-Ann Saltstone who had worked with him in this matter, but who was not called to testify.
[20] Dr. Saltstone had prepared a court ordered custody and access assessment dated December 12, 2008 in the Foley’s family case. In it, the stated key objective was to make recommendations concerning Beth and Allan with respect to the custody of and access to the three children. It confirms that Dr. Saltstone’s interest was solely in what is best for the children. Substantial concerns about Beth were set out including, but not limited to, her activities which were features of parental alienation syndrome. The recommendations were for Allan to have sole custody of all three children and that Beth have limited access, with access to Abbey to be made subject to supervision if Beth did not seek medical help and change her ways, “to prevent the realisation of full blown parental alienation syndrome”. Among other recommendations was one that Beth should have a psychiatric consultation because it would benefit her and the children to attend to her mental health.
[21] Dr. Saltstone testified that he still stood by that report, explaining that he was very concerned at the time of it about the potential for parental alienation that he saw emerging. He went on to explain and elaborate on his findings and on parental alienation.
[22] He added that, since 1989, he had done at least 40 such assessments, but could recall only one other case in which he had recommended sole custody. His point, he said, was that it was not something he did “lightly or routinely”.
[23] In 2012, Dr. Saltstone had reviewed materials that had been filed in the previously mentioned child protection case involving Abbey. He noted that it seemed that little had changed in the family’s matters since his 2008 report.
[24] He had received and reviewed further information up to and including the date of the hearing, including court documents, communications from Abbey and between the parties, and information from the Office of the Children’s Lawyer’s (OCL) investigator, Sharon Crawford.
[25] Dr. Saltstone was very confident in his opinion in the matter in view of the information that he had.
[26] The court was provided with a literature review prepared by both Dr. Robert Saltstone and Dr. Mary-Ann Saltstone with respect to parental alienation. Again, Dr. Robert Saltstone acknowledged his duty as an expert to be fair, objective and non-partisan. The review was intended to provide general information about parental alienation, not information specific to this case. Within this information, the report:
1. Defined parental alienation and parental alienation syndrome.
2. Set out the eight characteristics or symptoms of parental alienation syndrome which may be present, depending on the severity of the case.
3. Confirmed that, although it is not entirely uncontroversial, parental alienation syndrome had been recognised by courts in Canada and elsewhere
4. Stated that parental alienation is generally considered to be a form of emotional abuse of a child by the alienating parent.
5. Identified concern for the future ability of an alienated child to forge relationships and develop valuable interpersonal skills.
6. Said that court orders are important to protect the child from future alienation.
7. Discussed the treatment of parental alienation.
8. Identified the ultimate goal of treatment as reunifying the entire family, teaching the parents to present a unified front to the children, and having the parents keep the children’s best interest in mind when co-parenting.
[27] Parental alienation was said to occur “when the child’s alignment with one parent became so deep-rooted during a high conflict custody battle that the child joins forces with that parent to completely reject and perhaps denigrate the other parent who was once loved by the child. It only occurs when it involves the manipulation of the child by the favoured parent in an effort to unjustifiably reject the other parent”.
[28] A syndrome was defined for medical purposes as “a cluster of symptoms, occurring together that characterise a specific disease or disorder which have a common aetiology”.
[29] The effects of the alienation of a child from one parent due to the efforts of the other parent are the eight characteristics mentioned above, some or all of which might be present depending whether the case is mild, moderate or severe.
[30] A child with parental alienation syndrome, Dr. Saltstone indicated, is less likely to be rational and reasonable in deciding what they want or need.
[31] The Saltstones had also prepared a treatment proposal for the Foley family. Dr. Robert Saltstone explained that, whereas he treated the literature review as objective, the treatment plan was specific to Abbey.
[32] The treatment plan explicitly was designed with the assumption that Allan would have sole custody of Abbey. It noted that “placing the child with the rejected parent with little or no contact with the favoured parent is one of the recommended options in severe alienation cases. While short term stress may occur, and sometimes children are defiant, there are no studies which show that reversing custody harms severely alienated children”.
[33] The plan’s first stage would involve a psychological assessment of Abbey and the establishment of the degree of parental alienation. In the plan, Abbey’s level of parental alienation is estimated to be severe. Dr. Saltstone added in his testimony that Abbey fit the eight characteristics of the severely alienated child.
[34] Only after the assessment could strategies specific to Abbey be proposed, involving her and Allan. Beth as the alienating parent could be included in the treatment program only once certain milestones had been achieved.
[35] Detailed and unambiguous court orders were said to be “essential to prevent obstruction of the child’s contact with the rejected parent or the sabotage of treatment”. “Rapid and effective enforcement of the orders was also strongly recommended”.
[36] Dr. Saltstone expanded in his evidence on the recommended terms. He explained:
1. There would be no contact direct or indirect, between Abbey and Beth until certain progress had been achieved, after which there would be monitored contact, initially by electronic means, then by supervised visits, working towards a “normal” relationship, provided there are no alienating behaviours along the way.
2. That there have to be consequences for failure to comply. Police enforcement clauses are typically used, as well as contempt provisions.
SHARON CRAWFORD’S EVIDENCE
[37] An order requesting the involvement of the Office of the Children’s Lawyer (OCL) was made on February 12, 2015, and on April 29, 2015 the OCL accepted the case. Clinician Sharon Crawford was assigned to investigate and report. A discontinued report was filed with the court. It was not possible to complete the report because Abbey had refused to participate in an observation visit with Allan, and also because Beth refused to sign a medical consent. It was the only consent she refused to sign. On this latter point, the report notes that Dr. Saltstone in his 2008 custody and access assessment recommended that Beth undergo a psychiatric consultation out of concern for her mental health. (I note that there is no indication that such a consultation has ever been obtained by Beth.) Ms. Crawford added that there were questions about what medication Beth was on.
[38] In her statement disputing the OCL’s report, Beth said that she did not refuse to sign a medical consent, and that she provided Ms. Crawford with letters from her doctor stating that she does not have a mental health issue. Both the OCL’s reply to that dispute and Sharon Crawford when she was cross-examined in court by Beth denied that Beth produced such a letter. Furthermore, Ms. Crawford stated that the OCL would still need the disclosure and that it was the only consent that Beth refused to sign.
[39] Both parties, in fact, submitted lengthy disputes to the OCL’s report. Allan’s was largely about the OCL’s process or choice of words. The OCL provided some explanations and clarifications and agreed to a change of wording to better describe the nature of his relationship with Abbey. Other than one spelling correction, the OCL responded to Beth that there were no factual errors nor any further information put forward that would cause it to change the report’s contents or recommendations.
[40] I note that, when the fact of the OCL having discontinued its efforts came to light at an interim proceeding in this matter, this court ordered on February 11, 2016 that the parties seek the re-involvement of the OCL and that Beth see that Abbey participate in the OCL process if it resumed. Beth did not dispute that Allan had faxed his intake package to the OCL on February 23, 2016 or that the OCL had responded that it could not accept the file because it had not heard from her, but claimed variously and unconvincingly that she had mailed her package, but it had not been received by the OCL, and that she could not afford to fax it, finally having her MLA’s office fax it the week before the trial.
[41] Beth’s credibility on point was questionable. She indicated that she wanted a voice for Abbey, but did not take the necessary action to see that she had one through the OCL. Furthermore, her handling of the OCL’s involvement and investigation left a strong impression that she was trying to suppress information or manipulate the OCL to her advantage.
[42] Several concerns were raised in the OCL report and Ms. Crawford provided elaboration in court. It was very difficult to schedule appointments with Beth who alleged conflicts with her and Abbey’s schedule. Second, despite the investigator’s repeated explanations about the process, Beth seemed to think that she would be able to get more support from Allan once the assessment was finished. Despite delaying the process with communication and scheduling difficulties, Beth then wanted it completed quickly so she could return to court to deal with support.
[43] Perhaps more importantly, Abbey and Beth appeared to be interacting more as friends than as parent and child. Beth allowed Abbey to control her, acceding to Abbey’s demand that she interrupt her interview with Ms. Crawford to drive her to a movie, apparently without either Beth or Abbey seeing how inappropriate that was. Also, Beth involved Abbey in adult issues around custody, access and support. She admitted to telling Abbey everything. There were various examples, one of which was Abbey’s explaining that she did not want to see Allan because she was upset at him for allegedly not paying for her dance classes, which indicated that Abbey had received a distorted version of the truth, at best.
[44] Ms. Crawford saw a lot of focus on money with Beth saying that Abbey would not rebuild her relationship with Allan because he would not financially provide for her.
[45] It should be noted that, despite the earlier concerns of the fire department, NEOFACS and Dr. Saltstone about the estate of Beth’s home, Ms. Crawford found it clean and clutter free.
[46] Ms. Crawford testified that Beth made it clear that Abbey did not like Nicole, who Beth referred to as “the slut”. When Ms. Crawford told Beth of her information that Abbey and Nicole had had a good relationship, Beth appeared upset, could not accept it, and refused to speak more about it. Ms. Crawford speculated that Abbey might not have told Beth of the good relationship with Nicole out of fear.
ALLAN FOLEY’S EVIDENCE
[47] Allan gave extensive evidence about the family, supported by numerous documents filed as exhibits, which evidence I will attempt to highlight and summarise.
[48] He had grown up in Parry Sound with his two siblings, Leanne and Steven. They spent a lot time at the family cottage, bought the year he was born, and continued to go there through his marriage to and after the separation from Beth. His siblings and their families attend and it draws the family together.
[49] He and Beth married in 1989. Seemingly unable to have children of their own, they adopted Ben at 8 months and Samantha at 28 days. The marriage was struggling. He noted Beth’s “insane jealousy”, hoarding and problems with budgeting and the day to day logistics of running the household.
[50] The pregnancy with Abbey was a surprise. To Allan, the children were equal, but Abbey was more special to Beth than were the others. I note that this is certainly evident in e-mails that Allan referred to later in his evidence where Beth was clearly preferring Abbey to the others, and even developing animosity towards the other two.
[51] Separation occurred on February 7, 2007. Allan returned home from work to find Beth and the children gone, but no indication of to where. Materials found in the house indicated that this had been planned ahead. With police assistance, he found them at the Pavilion Women’s Shelter. He soon received Beth’s court papers.
[52] There followed a series of temporary orders dealing with custody, access, support and other issues. I. M. Gordon J’s of March 26, 2007 provided for joint custody with the children’s time to be split about evenly between the parents. R. P. Boissonneault J’s of August 20, 2008 gave full custody of Ben and Samantha to Allan, subject to Beth’s access. There was joint custody of Abbey who was to be with each parent week about. The latter order also confirmed previous orders which provided for Dr. Saltstone to conduct a psychological/parenting capacity assessment and for OCL intervention, and ordered production of the records of the children’s aid society and the Pavilion Family Resource Centre regarding Beth and the children.
[53] In the summer of 2007, Beth sought a reconciliation, which Allan considered and refused, wanting to move on in what he felt was in the best interests of the children. Around that time, he facilitated the reconciliation of Beth and her estranged sister Barbara, because he felt that Beth needed family. From then, Allan found it hard to arrange his access over the next year, despite his efforts. He attempted, without success, to arrange a schedule so the children would know when access was to be. Messages to Beth about access would not always be returned, but she would e-mail him about things of concern to her, such as her requests for money. Indeed, the frequency of her e-mails to him at his work place started to cause problems as his productivity dropped. So, he had to block her e-mails at work, although he made provisions for her to contact him in emergencies. The lack of a schedule was causing the children to feel guilty about seeing him. Beth was leaving it to the children to decide and telling him that they did not want to go. There were also early signs of the problem of Beth making plans for the children when they were to have been with Allan, such that he could not make plans such as for holidays with the children.
[54] Beth was upset that Allan had begun dating Nicole. Her e-mails to him are replete with references to “your slut”.
[55] Beth’s relationship with Samantha deteriorated. Beth e-mailed Allan in October, 2007 complaining about her, saying “she’s got too much attitude and she is too much work”. Samantha had wanted to go back and forth between Allan and Beth, but Beth had told her to choose, and she chose Allan. Beth left her a garbage bag with a few clothes in the middle of January, 2008. Samantha was devastated. Beth refused to talk about it. Allan had to buy her new clothes. An e-mail from later that month shows Allan trying to promote a relationship with between Beth and Samantha, describing the emotional turmoil that Samantha was going through, and pleading with Beth not to exacerbate it.
[56] E-mails and transcribed recordings of telephone messages from Beth to Allan are vulgar and abusive at times. Also, Allan said he started hearing from people that he dealt with or worked with that Beth was talking to others about him and saying that he had abused her and the children. At the same time she routinely called on him to help her and he did so financially and in other ways, including with income tax filings.
[57] He became concerned with Beth’s relationship with Abbey and its effect on the child. Transitions when Allan picked up Abbey for his time with her became dramatic. Beth would, outside in public, say to Abbey “I’ll miss you”, “don’t worry about me”, and “I’ll be ok”. Beth and Abbey would be crying. Also, when he spoke to Abbey on the telephone, Beth would put it on speaker or sit beside her such that Allan could hear that Beth was coaching her as to what to say. Abbey would talk to him about adult issues and of her concerns for Beth, sounding more like a parent than young child. At one point, Abbey called Allan a liar because he had not provided within a short time a plastic pool that Beth had told her he said he would bring. He felt that Beth was taking steps to exclude Abbey from his life.
[58] Access was resolved in the previously referred to temporary order of Boissonneault J dated August 20, 2008 which provided that Abbey would be with Allan in alternating weeks. When Allan picked up Abbey the first time, at Beth’s, Beth yelled out the window that she would be ok, but miss Abbey, all very publicly. Abbey was upset, but settled, and had no hostility to Allan. He took all three children to Parry Sound for a holiday. It was the first time in one and half years that he had had an extended period with Abbey, despite court orders and his requests.
[59] On October 7, 2008, Beth took both girls from school for mid-week shopping trip to Sudbury. On the way, she was in a single car accident. For no apparent reason, the vehicle left the road, struck a rock cut, went airborne, struck a rock face and rolled, according to the accident report. Abbey, who had been in car seat that was not belted in, was ejected from the vehicle. Both she and Samantha were seriously hurt, Beth less so. The girls were admitted to hospital in Sudbury, but Beth was not. Arrangements were made for her to stay in the hospital with the girls, but the hospital would not help or feed her although she was in pain and had difficulty moving. Allan stayed in a nearby hotel, brought her food, wheeled her to public washrooms and helped her with toileting, despite which Beth gave Allan a hard time about Nicole visiting him, and called him names in public. They were in the Sudbury Hospital for about a week before Allan arranged through the family doctor for transfer to the hospital in New Liskeard where all three were inpatients.
[60] Discharge planning involved NEOFACS, and the girls were sent home with Allan to recover. Beth was upset with this, feeling that others were on his side. (I note in passing that this is a recurring theme for Beth). They remained at Allan’s about a month. His mother came for two weeks to help, and Nicole was there at times. In particular, Nicole helped Abbey with toileting, which was made difficult by her cast, and which Allan could not do. Allan got them to their doctors’ appointments in Sudbury. It was February, 2009, before Abbey could return to the week about schedule.
[61] I note that, in the 2008 custody and access assessment, Dr. Saltstone addressed the circumstances of the motor vehicle accident, indicating that it “had been suggested by collateral source that Ms. Foley may have been driving after using prescription narcotics and or Benzodiazepines”. He opined that, “given her list of medications, this is quite likely”. The report stated that the accident was a factor but not the sole one in deciding on the recommendations. In his testimony, Dr. Saltstone identified concerns about the possibility of Beth’s abuse of narcotics and about suicidal ideation, stating that he “was very concerned about what had happened”.
[62] From Allan’s point of view, things went relatively well in 2009. He attributed that to a combination of NEOFACS’s involvement, Dr. Saltstone’s report, and Beth having legal counsel. The case was resolved in the final order of I. M. Gordon, J. of December 14, 2009, based on Beth’s offer.
AFTER THE FINAL ORDER OF DECEMBER 14, 2009
[63] Problems arose almost before the ink was dry on the final order.
[64] Beth refused to return Abbey to Allan on January 1, 2010 as scheduled, and withheld her for two weeks. There was no police enforcement clause, so they did not assist. Only when the parties’ lawyers were consulted did Allan get Abbey. Subsequently, there were numerous occasions when Beth made plans for Abbey during what was to be Allan’s time with her. Many of these involved Abbey’s dance classes, which Beth enrolled Abbey in in growing numbers of without consulting Allan. Others involved activities with Abbey’s friends. This created conflict with Allan’s plans for his time with Abbey. Some of these plans, such as attending the Lion King production or the family celebrations of the 50th year of cottage on Huckleberry Island, were known of well in advance and Abbey had been happy about them. However, when the time came, there would be conflict and Allan would be put in the position of following through on his plans and being cast as the bad guy for taking Abbey away from her dancing or friends, or giving up the time that Abbey would have spent with him and his family.
[65] On at least one occasion, Beth said that some dance practices which conflicted with his time on March break were highly important, but he checked with the instructor and found that they were, in fact, only optional.
[66] Even when Allan had nothing pre-planned, he said that when he gave the required 24 hours’ notice before access he would, without exception, get an e-mail back about some new, previously unknown to him, plan for Abbey or at least a statement that she did not want to go with him. Allan would not give such notice if he was aware ahead of time of some pre-planned activities of Abbey, or he would revise his own plans to accommodate her.
[67] The only time he sought to have Abbey during Beth’s time was for his aunt’s funeral, which Beth denied.
[68] When he did get Abbey, she would be sulky and hostile for increasingly long periods and repeat what Beth’s messages had said, but would eventually settle.
[69] Exchanges became terrible. They were in Beth’s driveway, and Beth would be acrimonious. So, Allan consulted NEOFACS who got Beth to agree to exchanges at the Supervised Access Centre. This worked well from early September, 2011, reducing Allan and Beth’s contact and conflict and stopping Beth from using Abbey as a courier of notes to Allan. However, Beth unilaterally ended the use of the Supervised Access Centre for exchanges in November, 2011.
[70] Allan testified that he learned in late 2012 that Abbey had a device with which she was able to communicate with Beth by texting. Screen captures and a transcript thereof were reviewed in court. They show Beth asking Abbey about what Allan and Nicole were doing, which he found to be an invasion of privacy, Beth denigrating Allan, and Beth telling Abbey to hide the device from him. To him, it undermined his time with Abbey.
[71] Allan came to feel like he had the plague. He was isolated from a significant part of Abbey’s life and could not even help her enjoy time with her friends. For example, in a letter of March 1, 2010, Beth relates that a friend of Abbey’s was not allowed to have play dates with Abbey at Allan’s home. He testified that his children’s friends were welcome and that Ben and Samantha’s friends were over, but he noticed that Abbey’s were not, with the exception of one whose parents he knew. Furthermore, on one occasion in 2012 or 2013, Abbey was to have three friends to the cottage, but all three cancelled without good reasons. His other children and Nicole’s all had friends there but not Abbey. No one spoke to him to explain. He said he had never had a personal conflict with anyone in New Liskeard.
[72] However, Beth’s e-mail to him of November 15, 2012 explains “(b)efore you say – as you always do, that Abbey can only go if you drive her to and from this party…as I’ve told you every time, this is not an option. My friends do not want you to know where they live. These are very good friends of both Abbey’s and mine and they have seen and heard about all of your nastiness towards Abbey and I. They do not want anything to do with you. Before you say - as you always do, that I tell my friends bad stuff about you, please try to realize that if you weren’t so nasty about everything, Abbey and I wouldn’t have anything to say about you. … You should really worry about what Abbey knows and thinks of you, and not what anyone else thinks.” (sic).
[73] Allan said it was not a unique e-mail – he had been getting them since 2008 – but the accusations were getting less ambiguous. Whereas they used to say “your time is coming”, Beth was now saying that she was telling others about him. Although he had tried to create a positive situation for Abbey and facilitate her friendships, he was being alienated from these people.
[74] He noted that a further e-mail from Beth to him on December 2, 2014 stated “(i)t was suggested to me by one of the dance moms that (the dance teacher) put you on her e-mail distribution list. But, a few of my dance moms’ good friends did not want you to have access to their personal e-mails addresses. They knew how nasty and controlling you are and they want nothing to do with you” (sic).
[75] Allan also referred to a letter of March 1, 2010 from Beth to Child and Family Services (i.e. NEOFACS) in which Beth expressed the hope that Abbey’s wish and or choice to live with (Beth) will be granted”, and wrote that she would do whatever she could to make it happen. He saw that as Beth’s plan. Abbey was 8 at the time.
[76] This theme of Beth’s was evident in various documents. For example, in June of 2012, Allan noticed that for two or three exchanges there were no lights on at Beth’s, and Abbey confirmed that the power was out. He contacted NEOFACS and the fire department. Soon thereafter, while at the cottage with Abbey, he heard from NEOFACS about the fire of July 2, 2012 in the adjoining apartment and the fire department’s concerns. NEOFACS suggested that Abbey stay in Allan’s care, but Beth would not agree. So, NEOFACS commenced its child protection application. In her affidavit of July 9, 2012 in support of that application, NEOFACS’s Anna Mathews deposed that Beth “voiced that she would rather have her daughter be in foster care with strangers, rather than with her father”. Beth took Abbey to live at the Pavilion Women’s Shelter after the fire.
[77] In her affidavit of July 19, 2012, also within the child protection application, NEOFACS’s Angela Laramee deposed that she had been working with Beth to do with the clutter and safety of her home. Paragraph 10 of that affidavit reads:
In November 2011, I tried to schedule a home visit with Ms. Foley again but she refused. Ms. Foley only wanted to meet with me in the presence of her Beaverhouse worker and only at Abbey’s school or the agency office. I scheduled an office meeting for December 07, 2011, which she attended with Abbey. During this office visit, I reminded Ms. Foley that I needed to attend her home monthly, as there were safety issues in her home that I needed to ensure she rectified. She advised me that her home had nothing to do with Abbey’s care and that she wanted the agency to get Abbey out of her father’s house. She stated that if we could not help her do that, there was no point in coming to her home. I advised Ms. Foley that she has not presented any protection concerns with Abbey being with her father; therefore I needed to address the concerns for her home in her home. Ms Foley was not pleased. She felt that the Society was ganging up on her and she could not see that the conditions of her home were a hazard for Abbey.
[78] Allan noted that the final order of December 14, 2009 was explicit about the sharing between him and Beth of the costs of Abbey’s extracurricular activities. Paragraph 18 is repeated here for ease of reference.
18. The parties will split equally the cost of Abbey’s extracurricular activities including one dance class, dance clothing and dance footwear and such other extracurricular activities as the parties may agree to. Abbey will not be enrolled in any additional extracurricular activities by either parent without the consent in writing of both parents.
Despite this, Beth enrolled Abbey in increasing numbers of dance classes and events at substantially increased costs for tuition, costumes and travel, which she could not afford, without prior consultation of Allan, and expected him to pay for it. These included a trip with the dance school to dance in the parade at Disney in Florida.
[79] In giving his evidence, Allan was able to point to numerous texts, e-mails or letters in which Beth had demanded that he pay substantial amounts of money, on short notice and without much specificity as to what they were for. He would have to contact the dance studio to find out what Abbey was enrolled in and what he was paying for. Remarkably, no matter how often he referred Beth to the final order’s terms, which he was compliant with, and insisted that they be followed, the requests kept coming as if he had not, and questioned his value as a father if he did not pay. Repeatedly, he gave in and paid so as not to disappoint Abbey who, on one occasion, had been suspended from dance for unpaid fees. The total amounts he paid are not entirely clear but run into the thousands of dollars per year. From July, 2013, after Abbey had been suspended from dance he paid 100% of Abbey’s dance expenses because he saw that she was suffering and he did not want her to be concerned. He continued to pay 100% even after July 11, 2014 when Abbey stopped seeing him. He had unilaterally increased the child support he was paying, starting in 2014, with the intent that the final order be followed. The situation is set out in his registered letter of April 13, 2015 to Beth which is reproduced here:
April 13, 2015
Dear Beth:
Re: Extra Dance Fees and Related Expenses
Please be advised that I will no longer pay for more than one half of the one dance class and related dance clothing and dance footwear costs as specified in the final settlement order, or any other extra dance activities that you enroll Abbey in without any prior discussion or written consent from me.
You are reminded that paragraph 18 of both the endorsed Minutes of Settlement and the subsequent order of Justice Gordon, dated December 14, 2009, clearly states that; “The parties will split equally the cost of Abbey’s extracurricular activities including one dance class, dance clothing and dance footwear and such other extracurricular activities as the parties may agree to. Abbey will not be enrolled in any additional extracurricular activities by either parent without the consent in writing of both parents.” You will also recall that this provision was initially tabled by you, through your own counsel, Michael J. Doupe, in your proposal to settle, dated December 11, 2009, which was subsequently agreed to by me.
Regardless of the terms of the settlement agreement, you routinely enroll Abbey in extra activities without any discussion or consent from me and you extract reimbursement for the costs of those extra activities from me by setting Abbey up for disappointment if I object. In the summer of 2013, Abbey learned that she had been disqualified from participating in the Paula Davey Dance School because you had accumulated a significant past due account with the school. In an effort to alleviate the stress Abbey was feeling, I agreed to pay your past due account and cover Abbey’s expenses going forward. You are aware that this is subject to certain conditions that I outlined for you in registered letters dated September 23, 2013 and September 18, 2014. However, you have ignored all of those conditions and have continued enrolling Abbey in more and more dance activities on your own and you have passed those costs on to me.
As of this date, I have made full payment of all Abbey’s dance fees and related apparel for the 2014 to 2015 season (i.e. almost $5,600). I have also been giving you $2,019 per month since Abbey was alienated from me last July, to pay for Abbey’s needs. I am therefore giving you notice that going forward, from now on, I will not pay for any more extra classes, competitions, special workshops, dance camps or apparel and will only provide you reimbursement of one half of one dance class and the related clothing and footwear costs for the 2015 to 2016 season and for every successive season as provided by the final settlement order. I am paying you enough child and spousal support to allow you to look after Abbey’s needs, and certainly enough to cover the cost of the additional extracurricular activities that you continue to enroll Abbey in without involving me.
Sincerely,
Allan Foley
[80] Having paid to the end of the 2014/2015 dance season, he contacted the school in April, 2016 to see what he owed and learned that there was significantly more owing than his share of one dance class and that Abbey risked suspension. Again, he paid up.
[81] As why he paid more than his share of the dance expenses, Allan explain that is was for Abbey who was aware of the situation, had her hopes up and was counting on it. He hated disappointing her and did not want to be the bad guy. He called it emotional extortion. He was put in a position of trying to balance Beth’s demands for money for Abbey with his responsibilities also for the other two children, whose extracurricular activities Beth was not interested in. He was very concerned about the optics for the other two, who settled into the background, and with Abbey getting a sense of entitlement. He recognized that the situation was not fair.
FEBRUARY 8, 2013 INCIDENT
[82] Allan spoke of an incident that occurred on Friday, February 8, 2013. He had picked up Abbey as scheduled and planned to go with her and Samantha to North Bay for the weekend. It was a bad transition, with Abbey being agitated and uncooperative. They proceeded to his New Liskeard residence to pick up Samantha. There, Abbey had a tantrum and went to her room. Beth arrived at Allan’s, hostile, and he calmly asked her to leave. There was a scene. Abbey was screaming to see Beth, calling Allan terrible names, and saying that she hated him and wished he was dead. Beth was pounding on the door and Samantha was crying. Beth refused to leave, so Allan called the police who talked to her. She alleged that she had a right to access. She left, but tried to have Allan charged with assaulting her. The police took statements from Allan and the girls, after which they declined to lay charges. By then, Abbey was calm and they went to North Bay for the weekend.
[83] Later, Allan found that Abbey had a cell phone from Beth that he had not been aware of and was texting with her that Friday night and Saturday. Transcripts of the texts were shown in court. It is fair to say that the texts show Beth undermining Allan’s relationship with Abbey and endearing herself to Abbey, who is thanked when she says things that Beth would want to hear. Notably, Beth repeatedly encouraged Abbey to delete the texts and make sure that Allan did not catch her texting with Beth.
MARCH, 2014 INCIDENT
[84] Allan saw Abbey’s behaviour in the transition periods after he picked her up for his time with her continuing to worsen. In March, 2014, she had become violent and kicked him in the mouth after he found her texting with Beth. Among other things she yelled “why can’t I be 12, because then I don’t have to live with you anymore. I can choose when I’m 12…”. It appeared from what was heard at trial that Beth was the source of this idea.
[85] On this theme, Allan showed a note that he had found in Abbey’s room that Abbey had apparently written to herself on March 22, 2014. In it, she says that “by April 30 I’m out of here”, among other things. April 30 was Abbey’s 12th birthday.
[86] In contrast, Allan also showed a page from the cottage diary where Abbey had written for May 24/25, 2014 “…had a nice time”. He said that Abbey was there one more time, before the end of that school year, when he took her to meet Bobby Orr who she had a long talk with, leaving her on “cloud nine”.
THE END OF ACCESS
[87] On July 11, 2014, Abbey was to go with Allan for a holiday. They and others were to attend a Queen concert. Abbey, Allan said, used to sing the band’s songs and was excited about going. Beth had been notified in advance. Allan had spent the previous evening with Abbey, which had been pleasant, and they had shopped for the holiday. There was mention of a dance workshop in the same time period, but that they would be away. Next day, however, Beth said that Abbey was not going with Allan. He contacted NEOFACS who directed him to the police, who eventually found Abbey for him. In the car, Abbey “melted down”, kicking and screaming hate and profanity at Allan and Samantha, and saying that Abbey was not a Foley. Rather than ruin Samantha’s holiday, Allan let Abbey return to Beth. He has had no time with Abbey since, but for two court-ordered dinner visits. His description of them reveals calm but strained relations. Notably, in the second one, when he asked what was wrong, Abbey replied that he would not pay for her physiotherapy and did not support her or her dancing. He testified that, in fact, Abbey’s physio is covered through his work and he submits the bills when Beth sends them.
[88] Subsequently, Allan has gone to Abbey’s school to give her birthday presents, and seen her for moments there. He has also continued to go to her dance events since July 2014.
BEN
[89] Ben was about 13 years old at the time of separation. Initially, he was with Beth, but moved to Allan’s. He started using drugs and skipping school. The trouble escalated from the time of Beth and the girls’ motor vehicle accident. Allan had him examined because of depressive symptoms, but depression was ruled out. He got into criminal activity and moved out of home. Allan continued to assist him, but imposed tough love, letting him have a taste of jail. Ben was happy to return home. He has since moved out and is working and has a good relationship with Allan who feels that Ben is back on the right path.
SAMANTHA
[90] Allan said that Samantha was more inclined to go back and forth between the parents to keep peace. However, as was mentioned earlier, Beth forced her to choose and Samantha chose Allan, so Beth put her out in winter without many clothes. Examples were shown of Beth’s communications to or about Samantha which would be quite hurtful. Allan described Samantha’s relationship with Beth as “dysfunctional”. The first he saw of Samantha’s problems was in 2011 when he found out from the vice-principal that Beth was signing Ben and Samantha out of school. Ben and Samantha admitted that Beth signed them out when requested to. It continued to happen, and Samantha’s schooling suffered.
[91] In 2013, Beth indicated that there was a free ticket available for Samantha to accompany Beth and Abbey to Disney, only to say otherwise shortly before the trip, devastating Samantha. Allan arranged and paid for Samantha to go.
[92] Late in high school, Samantha became bulemic and Allan got her to an eating disorders clinic.
[93] In January, 2015, Samantha reached out to Allan. She broke down crying. She had been cutting and spoke of killing herself. He took her to the hospital in New Liskeard, where he stayed with her for three days. She did not want Beth to know, but Beth heard, went to the hospital and made it about Beth, asking “why would you do this to me?”, and leaving Samantha in tears. Samantha was transferred to the hospital in North Bay for about a week. With her agreement, Allan moved her to North Bay with Allan and Nicole where she completed and graduated from high school. She is still in counselling, but living with a boyfriend near Allan’s home, and working.
ALLAN’S PLAN FOR ABBEY
[94] Allan spoke of his plan if Abbey was placed with him. He and Nicole had kept two houses, his in New Liskeard and hers in North Bay, so as not to move their respective children who had seen enough change. It had been tough, coordinating their time together with the children’s activities, and expensive. He had also moved his office from Englehart to New Liskeard for increased convenience in dealing with family matters. He would sell the New Liskeard house and move to North Bay. He had found that Widdifield Secondary School, about ten minutes from the residence in North Bay, is one of few where Abbey could major in dance while getting her core subjects. He had found private dance schools in North Bay as well, and noted that the level available in North Bay was higher than in New Liskeard. He would support Abbey in following her dreams and aspirations in dance. He would also help her maintain her social connections in New Liskeard. His office building there has a two bedroom apartment which he could use when working there and for visits. He would follow Dr. Saltstone’s treatment plan, which he said was manageable and with which he would have Nicole’s support.
EVIDENCE OF LIANNE PIDDINGTON
[95] Allan Foley’s sister, Lianne Piddington, testified that she was born and raised in Parry Sound and had a great childhood. She and her brothers and cousins spent a lot of time at the Huckleberry Island cottage and are close knit. She and her husband still live in Parry Sound and work in his business there. They have three children, ages 26 to 34, and two granddaughters. The extended family still goes to the island, including Allan and their brother Steven and their families. She has known Allan’s children “from birth” and noted having very close relations with them.
[96] Prior to the separation, she saw Allan and Beth at the island often. She said that Allan was a fantastic father. Abbey loved the cottage, was outgoing and happy, and would play with the other children.
[97] Post separation, Allan was very involved with the children and their activities. Abbey sometimes would be quiet when she got to the island, but would become outgoing, talkative and full of life. However, Beth would call a lot and Abbey would go off with Allan’s cell phone where she could not be heard.
[98] Lianne had attended a dance recital of Abbey’s in North Bay. Abbey had thanked her for coming, but was on edge, looking over her shoulder, seemingly concerned and different from when at the cottage. Beth was in the crowd somewhere.
[99] Lianne knew Nicole, Allan’s new wife, and described her relationship with Allan’s children as “amazing, hands on, intuitive, loving and patient”.
[100] Lianne had received a fax dated November 13, 2014 from Beth. It stated:
I wanted you to know that Abbey really misses you and (Lianne’s granddaughters). She really wants to see you guys. I have offered to drive her to Parry Sound to visit with you for an afternoon or a few hours – without me. But she’s worried that you will tell Allan and your Mother and they will show up. … I am begging you to please not show this to anyone especially Allan….
It went on to denigrate Allan, but speak highly of Lianne. Lianne never replied, because Beth was trying to get her to see Abbey behind Allan’s back.
[101] Lianne said that Abbey was an important part of her life whom she missed dearly and wanted to see again. She became emotional on the stand while talking about Abbey.
[102] In cross-examination, Lianne agreed that she had known Beth since before Allan and Beth started their relationship, that she had read the court documents and treatment plan and knew that Allan was seeking custody, and that the two women had gotten along prior to the separation, had little contact after, but had been polite and even affectionate on the two occasions that they had seen each other.
STEVEN FOLEY’S EVIDENCE
[103] Allan’s brother, Steven Foley, testified. He grew up in Parry Sound with Allan and Lianne, but has lived in Calgary for 23 years. He is married and has three children, aged 21 to 25 who were raised mostly in Calgary. He has two masters of science degrees, is a ground water specialist, and has his own company.
[104] He, too, spoke of the family holidaying at the island. He travels there in the summer, has missed only one year, and planned to be there through July and August, 2016. His children love it and are usually there for 2 to 3 weeks. Allan is there most weekends.
[105] He described Abbey as enjoying the cottage and being gregarious, boisterous, part of the gang and close to her cousins.
[106] He had known Beth from childhood. Pre-separation, she had been part of the gang at the island. After Abbey was born, things “unravelled”. Beth would be alone, apart from the others. He saw her focus on Abbey over Ben and Samantha, and be jealous if Abbey was with others.
[107] Post separation, the children all continued to get along at the island, including Abbey. Abbey often cuddled with her father on the couch. However, Steven had not seen her in 3 years.
[108] Allan encouraged his children to telephone Beth after which there would be solemn moments before getting back into cottage life.
[109] Steven knew Nicole and said that she is amazing and endearing in her relationship with Allan’s children. Steven’s own children were attracted to her. She is close to all the extended family.
EVIDENCE OF NICOLE FOLEY
[110] Allan’s current wife, Nicole Foley, testified. She will be referred to here as Nicole rather than Ms. Foley so as not to confuse her with Beth, the former Ms. Foley.
[111] She grew up in North Bay and has a sister and some extended family there. Her mother and other members of her extended family live in Sudbury.
[112] She was married for 17 years, and divorced. There are four children from that relationship, all boys, now ages 15 to 24. The oldest lives and works in Guelph, but the other three are in North Bay. Maxim, who just finished high school, and Simon, who is still in high school, remain at home. After her separation in 2007, she and her ex-husband agreed to stay in North Bay for ease of access, had the boys week about, and shared costs. It was not easy, but they followed their separation agreement, consulted and co-parented. It has gone fairly well.
[113] After training and working as hairdresser, she returned to school and obtained a university degree in social welfare and sociology in 1989. Since then, she had worked in various positions in the Children’s Aid Society in North Bay for 27 years.
[114] Nicole met Allan in early 2008. To both, their children were their priorities. So, they went slowly and saw each other on the weekends that they did not have children with them. It was months before they introduced their children to each other, and to the others’ children. Abbey was age 5. It was at the island, and the Calgary cousins were there. She was amazed at how the children got along.
[115] She and Allan had a long distance relationship for 8 years so as not to uproot their children, even after becoming engaged in 2011 and marrying in 2012. Her boys grew to love Allan, who does activities with them and supported them, but did not replace their father.
[116] Nicole developed a relationship with all three of Allan’s children. They called her Nicole. Having only boys of her own, it was special to have girls to do things with. Nicole attended their activities and they all went on trips together. Because of the numbers, it took two vehicles and often the girls went with her while the boys went with Allan.
[117] Ben was having difficulties by the time she met Allan. She helped Allan in his parenting of Ben when she was with him.
[118] Nicole met Samantha before meeting Abbey. Samantha was living with Allan full time and, so, was with Allan and Nicole “all the time”. Nicole developed a close relationship with her. She saw the difficulties Samantha had with Beth, and it became Nicole’s role to console and nurture her. Over the years, Beth withheld things from, said hurtful things to, and repeatedly traumatized Samantha, who would cry and sob. It impacted Samantha so that she needed psychological counselling. Nicole supported and reassured Samantha.
[119] Nicole recalled January, 2015 when Samantha was living at Allan’s, going to high school and working in New Liskeard, where Beth was, and Samantha revealed that she, Samantha, was suicidal. She was also bulimic, losing weight and struggling with school. Allan took her to hospital in New Liskeard, from where she was transferred to and stayed for over a week in the psychiatric unit in North Bay. It was decided that Samantha would better be in North Bay for ongoing health and counselling services. So, Samantha moved to Nicole’s in North Bay in January, 2015 and lived there until moving out in May, 2016. She enrolled in high school there and graduated in June, 2015. Allan travelled back and forth to be in North Bay but also in New Liskeard where Abbey and his company were.
[120] Nicole parented Samantha and helped her get through school. Samantha has remained in North Bay, is living two blocks from Nicole’s, and is in a good relationship, but still struggles emotionally and remains in counselling.
[121] Beth never supported Nicole’s relationship with the children. Nicole has seen her texts and e-mails. Beth called her a slut and encouraged the children to do so. Nicole has never talked badly about Beth.
[122] Nicole recalled the motor vehicle accident of Beth, Samantha and Abbey in the Fall of 2008, and the girls being in hospital in Sudbury and New Liskeard and then in Allan’s care. She and Allan were “super involved” in their care. In particular, she had bathed Abbey and helped her walk with a walker.
[123] After initially meeting Abbey. Nicole had gotten to know her and described her very positively, including, “vibrant”, “happy”, “fun to be with” and “affectionate”. She saw that Abbey loved Allan, sought his attention and approval, and got it. Abbey also had a fantastic relationship with Nicole’s two younger sons and they enjoyed each other’s company. Abbey loved the cottage and activities there with the extended Foley family.
[124] However, Nicole’s saw a change of demeanour when Beth influenced Abbey. When Abbey was with the Foley family, she went from talking on the phone with Beth around the others to doing it in private. Afterwards, she would be withdrawn and sour but not say what was wrong.
[125] Nicole had witnessed some transitions when Allan picked up Abbey. They were ok initially but became difficult over time, and it took longer to settle her. Once settled, she would enjoy herself, but for when she got calls from Beth, which was regularly. Other times, Allan would pick up Abbey in New Liskeard and be late getting to North Bay because of plans Beth had made for Abbey in Allan’s time. Allan would wait for Abbey’s event and even come the next day, at the expense of the others, because if Abbey wasn’t with him, there was a hole in the family. Nicole had no such problem with her ex-husband and their sons.
[126] Nicole confirmed that she and Allan had planned to take Samantha, Abbey, Max and Simon to a Saturday Queen concert. Afterwards, they planned to go to the cottage for a week. The tickets were bought long in advance, and Abbey was looking forward to it. However, when the time came on July 11, 2014, Abbey refused to go. Allan was distraught. Samantha was crying. Nicole has not seen Abbey since, except at a distance when they attend her dance concerts.
[127] Nicole stated that she has seen Abbey go from being open to a relationship with Nicole to being withdrawn. Beth’s influence on Abbey’s behaviours was apparent and negative. Abbey is completely different now from the girl she knew for the first 6 years. She has texted horrendous things to Allan in the past 2 years.
[128] Nicole reached out two times to Beth by letter, which letters were parts of the exhibits.
[129] In a letter of October 3rd, 2008 Nicole introduced herself to Beth, speaking as one mother to another. She acknowledged that Beth was the mother of the three children, who she described in very positive terms and whose interests she said she would have at heart. The letter contained many expressions of respect for Beth and the children.
[130] Nicole explained in her testimony that she felt it was important to do this because she, too, was divorced and had children. She wanted to re-assure Beth, show that she was no threat to her, and open up communication.
[131] The second letter was dated April 21, 2015. It referred to the first and outlined how Nicole and Allan had maintained homes in North Bay and New Liskeard to promote the best interests of the children and the continued building of relationships among the children and the adults, including Beth. Nicole wrote that they loved and missed Abbey and asked that Beth encourage Abbey to re-establish contact. She also updated Beth about Samantha’s mental health treatment, high school education and residential arrangements and invited Beth to call and visit Samantha in Nicole’s home. She explicitly hoped that Allan, Nicole and Beth could have mutually respectful and positive parenting roles in the Foley children’s lives.
[132] Nicole received no response to either letter from Beth. Beth has not visited Samantha, even when Beth was in North Bay for a dance recital.
[133] Nicole is familiar with the plan of care for Abbey. As Allan’s partner and Abbey’s step-mother, she would support Abbey through it, knowing it would be difficult. Allan and Nicole had made “tremendous efforts” to plan for Abbey. She said there is a room for Abbey in her home in North Bay. Abbey could attend Widdifield Secondary School, a 10 minute drive from the home. That school has a dance program and there are also private dance schools. Abbey’s friendships in New Liskeard would not be cut off. Friends could visit at home or the cottage, and Allan and Nicole would take Abbey to New Liskeard where Allan still has accommodations. Other recreational opportunities for Abbey had been identified in the North Bay area. Health care, including with emotional issues Abbey might have, was being planned for; Nicole noted that there is more in North Bay than in New Liskeard, because it is a bigger center. Ben and Samantha had agreed to participate in family therapy. Nicole would follow Dr. Saltstone’s recommendations with respect to relations with Beth.
[134] Nicole was notably upset and emotional at times when talking about Abbey.
ELIZABETH FOLEY’S EVIDENCE
[135] Beth’s testimony started with her saying that the case is about Abbey, not a “witch hunt” about Allan or her, and that she could, but would not, testify negatively about him. She went on to say that it is not fair that Abbey lacks representation, but would try to represent her. She noted that it had been left to Ben and Samantha to choose where to live, and Abbey wants the same respect and choice. Notably, Beth thought that a child could choose at age 12.
[136] Beth described Abbey as an “amazing dancer” and outlined Abbey’s involvement in dancing and the associated expense, although she did not have the numbers with her. She acknowledged that Allan had been generous in covering some expenses. She, and Abbey, she said, thought it was not fair that he wanted to go back to following the December 2009 order. Dance is Abbey’s dream, and should not be taken away, she said. Going forward, she wanted all dance expenses split in proportion to incomes, which she said should have been done in the 2009 order.
[137] Beth said Abbey is happy in her care and is doing “awesome” in school, despite the time spent in dance, graduating from grade 8 in June, 2016.
[138] She said that Abbey needs to have a relationship with Allan, but that he had caused alienation through his actions which she did not specify other than to say that he was trying to take Abbey from her dance school, friends and school. She wanted full custody of Abbey, subject to Allan’s liberal access which was for him and Abbey to work out within Abbey’s schedule, and she hoped that he would respect Abbey’s wishes. She claimed that she could not make Abbey go with him. Similarly, she said Abbey needs a relationship with Nicole, but that it is Abbey’s choice.
[139] Beth’s extended family consists of a brother Doug in Toronto, a brother Fred in the New Liskeard area and sister Barbara in California. Beth texts a bit with Doug and has little contact with Fred who the 2009 order says the children are not to be exposed to. Abbey has met Barbara one time, in about 2007 or 2008. Other trips to California to see her have been opposed by Allan and denied by the court. The one that was allowed by the court was cancelled by Barbara. No other visits are planned as of the time of trial.
[140] Beth said that she was trying her best to become self-supporting, but that also that she never would be. She had not done a job search. She had worked as a school monitor and then seasonally at a golf club, but had moved on to working as needed for a caterer. She was working around Abbey’s schedule. Also, she alleged that she could not do some work because of health issues. Stress, including from the nine year “court battle”, affected her health, she said.
[141] Cross-examination of Beth brought out a number of points.
[142] In 2015, she went to California, leaving Abbey with friends. She did not tell Allan.
[143] Beth took Abbey on a trip to Niagara Falls, using her brother Fred’s loaned credit card. She wants Allan to pay for dance expenses so she can repay Fred. Fred has been in and out of jail, including 5 years in Kingston penitentiary. Beth told Allan to pay her or she would give Fred his contact information, which she agreed was a possible attempt at intimidation.
[144] Beth admitted lying about her reason for separation and blaming others for influencing her, when she tried to reconcile. She admitted it was wrong, but she had wanted back with the children.
[145] Allan had coached Ben’s hockey and had been involved with Samantha’s activities, and had driven them and other children to activities.
[146] Beth had discontinued use of the Supervised Access Centre for exchanges, although it reduced conflict, for reasons such as the children did not like it, and she and Allan could get along at the time.
[147] The electricity had been cut off at her house for a few months, but perhaps would not have been, she said, if Allan had paid for dance expenses.
[148] Beth explained that she had told NEOFACS that she preferred that Abbey be placed in foster care rather than with Allan because she did not want Abbey to be with him full time. Further, she wanted NEOFACS to get Abbey out of Allan’s home.
[149] Beth denied any role in keeping Abbey from seeing Allan, claiming that she wants Abbey to, but that it is between Abbey and Mr. Foley and also subject to Abbey’s dance, social activities and track and field pursuits at school. She wants it to be on Abbey’s terms. It should not be at Allan’s expense, but it is Abbey’s wish. She knows it is wrong that Abbey chooses not to see Allan, but has supported her and continues to.
[150] Beth agreed that Allan’s description of exchanges, with Beth being upset, crying and saying “I’ll miss you” and “I’ll be fine” are accurate. She claimed that the children always worry about her, but she just wanted them to have a good time. Now, she said, she sees how she would make Abbey worry.
[151] Beth agreed that Allan had continued to do a list of kind things for her over the years after their separation. These involved maintenance at her home, dealing with emergencies, covering some expenses, paying off her vehicle loan, doing her income tax returns, and helping her and the girls after their motor vehicle accident. She said he can be nice and helpful, but is still “nasty and controlling”.
[152] Beth admitted to living in the Pavilion Women’s Shelter three times. One time was after she had been evicted from her apartment after the July, 2013 Disney trip because she had paid for the trip and not her rent, although Allan had paid some of the trip’s costs.
[153] Beth did not deny that she had referred to Nicole as “the slut”, but denied telling the girls to do so, although she had previously admitted approving it.
[154] She denied putting Abbey on speaker phone when Abbey was talking to Allan. Rather, she attributed the use of the speaker to Abbey being busy and “multitasking”, even at age 6.
[155] Beth admitted to being charged with theft in recent years for using a Wal-Mart gift card of the school’s two times to get groceries. She claimed that is was accidentally while shopping for the school snack program, but she had to reimburse the school and do a letter of apology.
[156] She admitted to having convictions for driving offences. She had been charged with careless driving after the 2008 motor vehicle accident, and also lost her license because, she said, Allan, Dr. Pace (the family doctor at the time) and others said it might have been a suicide attempt or because of her prescription medications. She had lost her license again later for not paying a ticket for driving without insurance. Again, she blamed this on Allan for failing to reimburse her for dance expenses.
[157] Beth admitted that she had not filed her income tax returns, but that Allan’s income tax returns showed him paying spousal support to her, and that the Canada Revenue Agency had garnished her spousal support at $350.00 per month.
[158] She agreed that Samantha and Abbey knew that she did not want to hear about Nicole and her family. She said that that was Abbey’s life with Allan, and Beth did not want to be in the middle.
[159] She explained that she had called Samantha “daddy’s puppet” because Samantha did everything that Allan wanted her to.
[160] Beth stated that she had always worked part-time and had put in no job applications because people approached her about jobs. She had turned down one job because it conflicted with Abbey’s schedule. She had not upgraded her education nor applied to work full-time, saying she could not because this case has consumed nine years. When it was pointed out to her that she had agreed in the 2009 order to become self-sufficient, she said that she had health issues since, including the motor vehicle accident injuries. However, it was pointed out that those injuries pre-dated the order by over a year.
OTHER WITNESSES FOR ELIZABETH FOLEY
[161] Ms. Foley called no other witnesses. She did advise on the outset that she intended to call Abbey as a witness. I refused to hear from Abbey directly, as it would not have been appropriate to do so and put the child in a position to testifying for or against a parent. The point of involving the OCL was to have someone to speak for Abbey. However, that effort had been frustrated, as Sharon Crawford had explained.
RE WITNESSES
[162] I have already noted that some evidence went in by way of Allan’s request to admit, which Beth did not respond to. In addition, we have the evidence of Allan and the witnesses called on his behalf. There was nothing in their evidence or the way that they gave it that caused doubts about their credibility or reliability. Beth’s cross-examination did not undermine them. Beth provided relatively little evidence to counter Allan’s and to support her position. Her credibility was weak and her evidence was often not inherently convincing.
[163] On the matter of Allan’s contact with Abbey, Beth spoke of appreciating that Abbey should have a relationship with him, but did not take the next step as a parent and make it happen, leaving it to Abbey to decide, while doing things that undermined that relationship. On a related point, she spoke of wanting Abbey to have a voice through the Office of the Children’s Lawyer, but did not fully cooperate, or have Abbey do so, with the OCL’s investigation. She spoke favourably of Abbey having had an OCL lawyer in the past, leaving the impression that she wanted a lawyer again this time to voice Abbey’s stated wishes, which would have supported Beth’s position, rather than a clinical investigator who would investigate and report with respect to the best interests of the child. There were too many unrealistic or inconsistent aspects to Beth’s evidence for it to be given much weight.
[164] On financial matters, she repeatedly blamed her difficulties on Allan’s failure to pay for Abbey’s dance expenses without any apparent recognition that:
1. Allan was supporting the other two children.
2. Allan was paying Beth substantial spousal support.
3. Allan was paying the child support that was ordered, based on her offer to settle.
4. Allan had unilaterally increased the child support that he paid for Abbey.
5. The expenses that Beth incurred for Abbey were above and beyond what the order provided that Allan should pay for, and were incurred without prior consultation with him and even despite his warnings that he would not pay for them.
6. Allan paid much more for Beth and Abbey than the order required him to.
LAW
[165] This matter is subject to the provisions of the Divorce Act.
[166] Abbey is a “child of the marriage” as defined in the Act. There was no issue about this. Section 15.1 and 15.2 deal with child support orders and spousal support orders, respectively. S. 16 of the Act provides for the making of custody and access orders. In particular, there are the following sub-sections:
Order for custody
16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
…
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
…
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Past conduct
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[167] Variation or rescission of orders is subject to s. 17. Again, certain sub-sections are of particular note here:
Order for variation, rescission or suspension
17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; or
(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.
…
Terms and conditions
(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.
Factors for spousal support order
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
Factors for custody order
(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change .
Conduct
(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.
…
Objectives of variation order varying spousal support order
(7)A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
…
Maximum contact
(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.
[168] Cases decided under the Divorce Act often refer to s. 24 of the Children’s Law Reform Act which, although not strictly applicable, provides assistance in assessing what the best interests of the child are. (N.L. v. R.R.M. [2016] O.J. No. 601; J.M.G. v. L.D.G. [2016] O.J. No. 2537). Section 24 of the Children’s Law Reform Act reads as follows:
Merits of application for custody or access
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 best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
…
MATERIAL CHANGE IN CIRCUMSTANCES
[169] The threshold issue is whether there has been a material change in circumstances since the final order of December, 2009, which is a pre-requisite to the court’s exercise of jurisdiction to change the terms of that order (N.L. v. R.R.M. [2016] O.J. No. 601 OSCJ par 105). For that threshold to be met, the judge must be satisfied of:
1. A change in the conditions, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child,
2. Which materially affects the child, and
3. Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. (Gordon v. Geurtz 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52)
This point was not in contention. I accept Allan’s counsel’s argument that, despite what had preceded, the situation between the parties in late 2008 and in 2009 was relatively good with few disputes and that he had accepted her offer, on which the final order was based, thinking it could work. Consequently, I find that Beth’s failure to follow numerous terms of the order, including 1 - 4, possibly 5, 6, 11, 13 – 15, 18 and 24 – 26 and especially the subsequent difficulties with access, particularly the almost total lack of access starting in July, 2014, to be a material change in circumstances. There was no argument to the contrary.
ANALYSIS
[170] Assessing the conditions means, needs and other circumstances of Abbey as illuminated by CLRA s. 24, one sees that her custody is being contested by her parents. I have no doubt that each has love, affection and emotional ties with her. Although Abbey’s for her father seem to be submerged at this time, it is clear that they had a bond in the past and I see no good reason why it should not still exist and be capable of resurfacing.
[171] There is not much evidence of Abbey’s relationship with her brother Ben, nor with their sister Samantha. However, it stands to reason that it has been affected by their degrees of estrangement from Beth, and alliance with Allan. They have lost some of the time together that siblings would usually be expected to share.
[172] Abbey also has an extended family on Allan’s side, including a paternal grand-mother, and it was clear from her aunt Lianne Piddington’s and uncle Steven Foley’s evidence, as well as Allan’s and Nicole’s, that she enjoyed time with that close knit group, and is missed.
[173] Finally, there is her step-family. Allan has been with Nicole over 8 years and married to her for about 4 years. This relationship has existed for over one half of Abbey’s life to date. The court was highly impressed with Nicole and her evidence. By her nature, education and occupation, she presents as well-equipped to manage the family’s situation. Despite the crude slurs and other misconduct directed at her by Beth, she has not responded in kind. Rather, while respecting the bounds of her place as a step-mother, she has reached out to Beth, put her own interests aside in her relationship with Allan for the benefit of their respective children, and assisted both him in his dealings with the matter and his children directly. It is difficult to imagine how Nicole could have done more, or been more appropriate, in this difficult situation. Looking forward, Nicole has indicated that she will continue to play a positive role. In addition, she had children of her own who Abbey enjoyed the company of.
[174] By contrast, Beth and, by extension, Abbey, has practically no contact with any extended family, and no step-family. Beth remains single. Her brother Fred is divorced with 2 children, Abbey’s cousins, in their thirties, about which there is little information. Fred has a criminal record and has been incarcerated for much of his adult life. By the December, 2009 order, he is to have no contact with the Foley children. Beth’s brother Doug lives in Richmond Hill area, has no children, and has little contact with her. Beth’s sister, Barb, in California has no children. There is no indication that Beth’s extended family has played any significant role in Abbey’s life.
[175] The next factor is Abbey’s views and preferences, if they can be reasonably ascertained. It is unfortunate that the OCL was not able to play a greater role here. Of course one can see from her actions and some of her writings that Abbey has opted for her mother over her father. However, even without Dr. Saltstone’s evidence, there is reason from the evidence to question the independence of that choice. Objectively, it does not make sense that she would so completely turn her back not only on a loving father that she had been close to, but on her extended and step-families that she had also enjoyed time with. Something appears to be wrong, and the evidence points to Beth as the culprit. Dr. Saltstone’s uncontroverted evidence of parental alienation bears this out.
[176] As for the length of time that Abbey has been in a stable home environment, one could argue that she never has been. Her parents’ relationship was in difficulty by the time she was born. They separated when she was only about 5. Allan’s evidence was of a dysfunctional and chaotic situation after separation, albeit one which improved somewhat leading up to the December, 2009 order, only to degenerate again soon after. In her mother’s care Abbey has been subject to the danger and deprivation attendant on her mother’s hoarding behaviours. Also, there have been various consequences of Beth’s failure to make choices and budget appropriately, including:
1. Loss of electrical service to their residence.
2. Loss of their residence when Beth paid for a Disney trip instead of the rent.
3. Near loss of Beth’s vehicle, except that Allan paid the lease off.
4. Suspension or near suspension from dancing, except that Allan again paid for her to continue.
[177] Beth has had a series of residences since separation with stays in a women’s shelter among them. In contrast, Allan has been a model of organisation and stability, maintaining a home in New Liskeard for the benefit of the children and for his work, and a second home with Nicole in North Bay for the duration of their ongoing relationship.
[178] The evidence indicates a high degree of order, organisation and responsibility around Allan, but a similar degree of disorder, uncertainty and irresponsibility around Beth.
[179] This ties into the permanence and stability of the family units with which it is proposed that Abbey would live. There is no indication that there will be any major changes in Beth’s situation, which is viewed negatively. On the other hand, neither is there any indication that there will be any major changes in Allan’s situation, which is viewed positively.
[180] Allan has done well financially and is certainly able to provide for Abbey in that sense. Beth on the other hand, has not taken steps to further her abilities in this regard, despite the December, 2009 order’s terms. Her inability to prioritize and budget for expenditures has been previously commented upon.
[181] Beth’s focus is on Abbey’s dancing. She indicated that Abbey does well in school, but Beth’s track record with Ben and Samantha, signing them out of school whenever they wished, does not bode well for Abbey. Allan, in comparison, has identified a high school where Abbey can pursue her academic subjects as well as her dancing.
[182] Beth’s plan for Abbey did not extend past Abbey’s dancing, attending high school, and socializing. Allan’s plan included those and more. He would also follow the treatment of plan proposed by Dr. Saltstone to deal with the parental alienation, head off the problems that parental alienation could cause for Abbey in the future, and help Abbey re-establish relations with him and the family, including a healthy one with Beth.
[183] There is a great deal of information about the ability of each of Allan and Beth to act as parents. There is no evidence of any professional concern about Allan, but there is about Beth. It comes from Dr. Saltstone, who recommended against her custody as long ago as 2008, and still does, from NEOFACS, and from the OCL’s Sharon Crawford. The last expressed concern in her discontinued report of November, 2015 about Beth and Abbey interacting more as friends and Beth having difficulty enforcing rules. This point is underscored by the evidence of Beth herself who, while professing to understand that Abbey needs relationships with Allan and with Nicole, leaves it with Abbey to deal with them as she chooses and subordinates them to Abbey’s schedule of dancing and other activities. This is not proper and is not adequate parenting. Beth demonstrates, whatever she says about the importance of access, that she does not appreciate the importance of those relationships.
[184] Allan has demonstrated the ability to act as a parent. Repeatedly, he set his own interests aside to accommodate the children’s. He expressed concerns over the imbalance of attention and resources going to Abbey over the others. He acted to assist Ben and Samantha through their respective difficulties, and he has made a plan to deal with Abbey’s. His selflessness, patience, generosity, dedication to his children and perseverance over years of chaos, uncertainty and disappointment are acknowledged and bode well for his parenting of Abbey.
[185] By her actions, Beth has violated the maximum contact principle which says that a child of a marriage should have as much contact with each parent as is consistent with the best interests of the child. There is no evidence of any such action by Allan. Although the treatment plan would limit contact between Abbey and Beth in the short term, it is with a therapeutic goal of establishing healthy contact in the future.
[186] In assessing a person’s ability to act as a parent, a consideration is whether the person has abused any child. Dr. Saltstone’s evidence is that parental alienation is considered to be a form of abuse. It follows that Ms. Foley, in alienating Abbey from Mr. Foley, was abusing her.
[187] There is case law in which the courts have recognised parental alienation and responded to it.
[188] The case of J.K.L. v. N.C.S. 2008 CanLII 30289 (ON SC), [2008] O.J. No. 2115, a decision of J.R.H. Turnbull J. of the Ontario SCJ, involved an action by the mother for a variation of a consent order in which she had access to her 13 year old son and for sole custody of him on the basis that the father had alienated the child from her. The case has many parallels to the present one, including being decided under the Divorce Act. The court found that the child had been alienated unjustifiably from his mother by the father, that the resulting lack of access amounted to a material change of circumstances, even though the alienation had been identified prior to the current order, and that is was in the best interests of the child to place him in the custody of his mother, subject to various terms and conditions, without access to the father, pending a review of the matter.
[189] N.L. v. R.R.M [2016] O.J. No. 601 dealt with a motion to change a final order where, after a finding that the mother had alienated the children from the father, the court had ordered on consent that the father have sole custody of the children, then aged 17 ½ and 16 years, and that the mother have no communication with them.
[190] Other cases where orders were made for changes of custody away from and limiting or terminating access by the alienating parent include S.(C.) v. S.(M.), 2010 ONCA 196 (CanLII), [2010] O.J. No. 1064, Pettenuzo-Deschene v. Deschene 2007 CanLII 31787 (ON SC), [2007] O.J. No. 3062 and X v. Y [2016] O.J. No. 1148.
[191] I am persuaded by the evidence that this is a case of parental alienation, which Dr. Saltstone estimates to be severe, and that the placing of Abbey in her father, Allan Foley’s sole custody subject to the treatment plan is in her best interest. I am satisfied that Allan and his family are in a position to provide financially, emotionally and otherswise, and will do so, including implementing the treatment plan. There is no indication that Beth recognizes the problem of parental alienation or would do anything about it, such that any other order would be appropriate.
[192] I recognise, as do its proponents, that this course of action will not be easy for Abbey, Allan, Beth, or the others involved. One might question whether a change of custody of a child in their mid-teens is realistic. However, the distance between New Liskeard, where Beth lives, and North Bay, where Abbey will be living with Allan is sufficient that Abbey will not easily “vote with her feet” to return to Beth’s, frustrating the intent of the order. At the same time, it is not so far that Abbey will not be able to maintain contact with friends, especially with Allan’s help. Furthermore, Abbey is about to enter high school and would experience a degree of change in any event with all the opportunities that that entails. For that reason, this is a particularly propitious time to make the change in custody.
SPOUSAL SUPPORT
[193] Allan’s motion to change sought a termination of spousal support effective June 30, 2015 or, in the alternative, within 2 years of the final order in this motion to change. Beth sought in her response to that motion an increase of spousal support to $6,352.00 per month based on a substantial increase in Allan’s income that he allegedly never reported.
[194] For convenience, paragraphs 23, 24 and 26 of the December 14, 2009 final order are set out again here:
23. The Respondent will pay spousal support to the Applicant in the amount of $2,060.00 per month payable on the 1st day of each month commencing on February 1, 2010 subject to the following:
• In any event, the issue of spousal support may be reviewed, within three years of the date of this Order at the Respondent’s request.
• Spousal support will be terminated in the event that the Applicant remarries or cohabits in a relationship of permanence which is equivalent to a common law relationship;
• The Applicant will provide the Respondent with notice within 30 days of obtaining any employment and such employment will be regarded as a material change affecting the quantum of spousal support;
• The Applicant will remain on the Respondent’s benefit plan for so long as she is entitled to.
24. The Applicant must make every effort to contribute to her own support, find a job and become self-employed and will provide the Respondent with proof of her efforts by February 1, 2011 and once a year thereafter, by February 1 of each year.
26. Each party will file an Income Tax Return each year and each party will provide the other with a copy of their Income Tax Returns and their Notices of Assessment by July 31 of each year.
[195] Both sides agreed that paragraph 24 should have read so that Beth was required to try to become self-sufficient, not self-employed.
[196] Allan has never missed or been late with any court ordered support payments since separation and has provided advances on request.
[197] In 2009, Beth appeared to have been between jobs, and had no income. Allan was employed at a job that he had held since 1996, and earned about $94,000 annually.
[198] Subsequently, Beth has worked at several part-time or seasonal jobs. Allan left his employment and has been operating his own company since March, 2010. In the last year for which there is evidence, 2014, Beth earned about $14,500 exclusive of support. Allan’s post separation income from his company has ranged between $160,000 and about $300,000 in the years from 2010 to date.
[199] Allan assisted Beth by annually providing an updated resume for her to use in her court ordered job search at her request. However, her evidence was that she had not done a job search.
[200] Allan filed his income tax returns and provided copies of these and his notices of assessment to Beth annually. He requested copies of her income tax returns annually, together with support receipts, but did not receive them. In 2014, she advised that she had not done her income tax returns for several years.
[201] He never applied for the review of spousal support. She never requested an increase in the court ordered support until he started this motion to change.
[202] The provisions of the Divorce Act with respect to the making and varying of spousal support orders were set out above.
[203] Before going further, however, I would note the case of Patton-Casse v. Casse, 2011 ONSC 4424 (CanLII), [2011] O.J. No. 3445 a decision of the Ontario Superior Court of Justice that was upheld on appeal [2012] O.J. No. 5379. It dealt with post-separation increases in income as a basis for determining spousal support and found that there must be a sufficient relationship between the increased income and the support recipient’s efforts during marriage to justify allowing him or her to share in the increase.
[204] In the present case, Allan’s increase in income followed on his changing jobs away from the type of employment that he had had throughout the marriage to something more entrepreneurial, albeit still within the same forest industry. There is simply no evidence of Beth’s efforts during the marriage to justify basing spousal support for her on his post-separation increases in income.
[205] In considering, then, what if anything should be done about spousal support, there are various considerations, including:
1. The statute and case law about spousal support.
2. The terms of the December 2009 final order.
3. The length of the marriage, nearly 18 years, and the time since separation, nearly 10 years.
4. The effect of the change in custody on Beth’s ability to seek employment. Specifically, she is no longer constrained as she says she was, by Abbey’s schedule.
[206] The evidence about Beth’s ability to obtain and maintain employment in a local job market is quite limited. She has an education which would give her employable skills, and she gained experience in a series of jobs over the years. On the other hand, she claims to have some health problems, although there is little evidence of their effect on her employability. The effect of her theft and driving related charges is unknown.
[207] It is clear, however, that Beth has made little or no effort to follow the December, 2009 order, made pursuant to her offer, with respect to her becoming self-sufficient, even though the spousal support was made reviewable after only 3 years. At the same time, in addition to the substantial spousal support and child support he was paying, Allan had full financial responsibility for Ben and Samantha and paid more than ordered for Beth and Abbey in addition. Now, he is taking on the full financial responsibility for Abbey including the unspecified costs of her assessment, treatment and counselling. He did not request that Beth pay child support.
[208] Balancing the various considerations and in view of the general paucity of relevant evidence about support, I would decrease the spousal support payable by Allan Foley to Elizabeth Foley to $1,750.00 per month commencing August 1, 2016, reviewable after three years of the date of this order, at Allan’s request.
COSTS
[209] Costs were requested in the pleadings of Beth Foley, but not in those of Allan. There were no submissions regarding costs by either side.
JUDGEMENT
[210] Pursuant to s. 17(1) of the Divorce Act, Paragraphs 1-3, 6-11, 13, 17, 18, 19 and 26 of the Final Order of I. M. Gordon J of December 14, 2009 are hereby set aside.
[211] Allan Foley shall have custody of the child of the former marriage, Abbeygayle (Abbey) Lila Foley, born on April 30, 2002, who shall reside primarily with him.
[212] The transfer of custody shall take place at the Supervised Access Centre in the City of Temiskaming Shores within 2 days of the date of this order or as soon thereafter as the Supervised Access Centre’s hours of operations permit.
[213] Elizabeth Foley shall arrange for the delivery to Allan Foley or his delegate of Abbey’s belongings, including her birth certificate, health card (if any) and passport (if any) within 2 days of the order.
[214] Elizabeth Foley shall have no access to Abbey, save and except as recommended by the professionals treating Abbey for the purpose of treatment, until further court order.
[215] Elizabeth Foley is restrained from having any contact, direct or indirect, with Abbey until further court order. This applies to all places that Abbey regularly attends, including Allan Foley’s home and Abbey’s school and places of dance and sports activities.
[216] The Ontario Provincial Police, the North Bay Police Service, all other police forces in Ontario and all enforcement officials to whose attention this order is brought shall assist, if required, in enforcing the provisions of this order, and shall specifically take such action as is required to locate, apprehend and deliver the child to Allan Foley, as provided above, including the power of search and entry at any time.
[217] Allan Foley shall engage Dr. Robert Saltstone and/or other suitable competent professionals to engage in the assessment, treatment and counselling of Abbey, and of others if need be, to deal with the parental alienation.
[218] The case shall be reviewed with respect to access in court in 3 months or as soon thereafter as a date can be scheduled. Seven days prior to that date, each of the parties shall serve and file affidavits setting out the relevant developments since the making of this order which may relied on by the parties in making submissions about the extension or variation of this order.
[219] Paragraph 22 of the Final Order of I.M Gordon J of December 14, 2009 is hereby modified to read:
The Applicant will be entitled to claim Abbeygayle as a dependant on her 2008 and 2009 tax return and in every year thereafter up to July 31, 2016, subject to the rules of the Canada Revenue Agency.
[220] Paragraph 23 of the Final Order of I.M. Gordon J dated December 14, 2009, is hereby varied as follows:
The Respondent will pay spousal support to the Applicant in the amount of $1,750.00 per month payable on the 1st day of each month commencing on August 1, 2016 subject to the following:
• In any event, the issue of spousal support may be reviewed after three years of the date this Order at the Respondent’s request.
• Spousal support will be terminated in the event that the Applicant remarries or cohabits in a relationship of permanence which is equivalent to a common law relationship;
• The Applicant will provide the Respondent with notice within 30 days of obtaining any employment and such employment will be regarded as a material change affecting the quantum of spousal support;
• The Applicant will remain on the Respondent’s benefit plan for so long as she is entitled to.
[221] Each party shall bear its own costs.
________________________________________
Justice J. A. S. Wilcox
Released: August 2, 2016