Court File and Parties

Court File No.: Toronto DFO 03 10563 01 B1

Date: 2013-07-31

Ontario Court of Justice

Between:

Susannah Bunce Applicant

— And —

Gregory Peacock Respondent

Before: Justice E. B. Murray

Heard on: July 11, 2013

Reasons for Judgment released on: July 31, 2013

Counsel:

• Mr. Bill Rogers for the Applicant
• Mr. Gregory Peacock on his own behalf
• Ms. Kiran Mand for the child Jacob

MURRAY, E. B. J.:

[1] Introduction

This case concerns a claim of parental alienation, made by a father who believes that his reasonable proposals for access between himself and his son are being frustrated by a vengeful mother. The central question I must decide is whether I will order the parties' 13 year old son Jacob to spend overnight time with Father, and to travel outside the country to spend time with Father in his home in St. Kitts. Jacob, who is represented by Ms. Mand of the Office of the Children's Lawyer, opposes the order sought, and asks that the current temporary order, which provides for frequent daytime access in Toronto, be continued. Mother has the same position as Jacob.

Background

[2] The parties are the mother and father of Jacob, born November 17, 1999. They separated in 2003 after cohabiting for approximately six years. Acrimonious litigation ensued, and after several days of trial, they entered into a detailed consent which resulted in an order on November 25, 2004. The order provided that Mother would have custody of Jacob, that the parties would consult about all major decisions affecting the child, and that Jacob would have liberal access to Father. That access included overnight stays on alternate weekends and mid-week, and two weeks in the summer, and a further two weeks at any time with notice. The order provided that a vacationing parent could take Jacob out of the province.

[3] This case started in 2012, when Father brought a contempt motion against Mother, alleging that she was denying him any overnight or vacation access to Jacob. The trigger for the motion was Father's desire to take Jacob for a two-week vacation to his new part-time residence on St. Kitts, and Jacob's refusal to go, which Father believes was orchestrated by Mother.

[4] Mother defended the motion, saying that despite her best efforts, Jacob, who has been diagnosed with Asperger's Syndrome and generalized anxiety disorder, refused to go. Mother alleged that Father's lifestyle was too irregular for Jacob to feel comfortable, and that Father was not sufficiently attentive to Jacob's special needs. Mother's position was that the November 2004 order should be changed to provide for day access when Father was in Toronto, progressing to overnight access in accordance with Jacob's wishes.

[5] At a case conference on February 29, 2012, the parties agreed to "convert" the contempt motion to a motion to change the 2004 order. They also consented to a temporary order with a new schedule that provided that Father would have day access when in Toronto from Monday, Tuesday, Thursday and Friday from after school until 8 p.m., and day access on the weekend after he returned to Toronto and the weekend before his departure to St. Kitts. They agreed to go to mediation. The court requested the assistance of the Children's Lawyer (OCL). That request was agreed to, and Ms. Kiran Mand was appointed to represent Jacob.

[6] The parties did not reach an agreement in mediation.

[7] On December 19, 2012, the matter was adjourned to allow Father, Mother and Jacob to attend for counselling with Dr. Leon Sloman, an expert in Asperger's syndrome. The purpose of the counselling was to work with the parties and Jacob to cautiously begin some overnight access for Jacob in a therapeutic context. The first appointment with Dr. Sloman was scheduled for January 29, 2013.

[8] On January 24, 2013, Father served Mother's lawyer with a motion asking for a finding that Mother was engaged in parental alienation and an order of temporary custody to him. That motion was not, however, filed with the court, and was not argued.

[9] The parties and Jacob met with Dr. Sloman, but no progress resulted. Dr. Sloman withdrew from this role in late April 2013, immediately prior to the return of this case to court.

[10] When the case returned to court on May 8, 2013, Father had brought a further contempt motion, grounded in Mother's failure to comply with the schedule in the November 2004 order. Father also brought a motion asking for temporary custody of Jacob, with access to Mother during the days that Father was not in Toronto, and for other heads of relief. His request in its entirety is set out at Schedule "A" to this decision.

[11] I adjourned the case to July 11, 2013, for a hearing of the motions to change on documentary evidence.

Positions of the Parties

[12] Both Mother and Father filed factums for the hearing.

[13] Father withdrew his contempt motion at the outset of the argument. In oral argument Father stated that his claim for custody was "not that important"; the important issue was, in Father's submission, to remove Jacob from his mother's influence for a temporary period, to allow a more "normal" schedule to be established. Father requested a schedule for Jacob as follows:

• An immediate one-week trip with Father;
• One week each month when Father was in Toronto, which would necessarily include overnight time;
• For any other time during a month that Father was in Toronto, a schedule mirroring the current temporary order, as set out above;
• Preservation of paragraph 19 of the 2004 order which allows each parent to travel outside the province with the child for a two-week period annually.

[14] Father submits that once Jacob has experienced overnight and out-of-town time with him, that he will see that there is nothing to fear, and that he will be happy to continue.

[15] Mother's position is that the current temporary order should continue as a final order, with one addition: Father should be required to give at least 30 days' notice of when he will be in Toronto, in order to allow her and Jacob to plan their activities. Mother says that she would be happy to have Jacob spend overnight time and to travel with Father, but that this cannot take place until the child is ready.

[16] Ms. Mand's position on behalf of Jacob is the same as Mother's position. She advocates strongly that the parties return to a therapeutic process which involves Jacob.

The Facts

[17] Many of the facts in this case are agreed-upon or undisputed. I set these facts out below.

• Mother is an assistant professor at the University of Toronto. She and Jacob live in a home in the Annex area of Toronto.
• Father owns several homes in the Annex area, and derives his income from rental fees for units in those properties.
• Father began cohabiting with Elena Voronejskaia in 2006. He and Elena have two young children, Benjamin and Max.
• Father, Elena, and their children moved to St. Kitts in January 2012 in order that Elena could attend medical school there. Father retained a unit for his own use in one of his Toronto properties.
• Father returns to Toronto on average once a month for approximately one week, sometimes longer, in order to attend to his rental properties and to spend time with Jacob.
• Jacob has always had a good relationship with Father.
• The parties followed the schedule for Jacob set out in the 2004 order until sometime in 2007.
• Since 2007, Jacob has had overnight stays with Father only three or four times. There have been no overnight stays since 2010.
• Jacob will go for overnight stays with some others—for example, with his maternal grandparents, or on sleepovers with friends.
• Jacob says consistently that he does not want to spend overnights with Father.

Jacob's Special Needs

[18] Jacob suffers from a number of disorders, which developed and were diagnosed after the parties negotiated the schedule in the 2004 order. In order to understand the difficulties which have arisen with respect to Jacob's attitude towards overnight stays and trips with Father, it is important to understand the child's special needs.

• In 2007 Jacob was diagnosed with esophageal achalasia, a rare and serious disorder. Late in the year, Jacob became unable to digest solid food, and had to be put on a liquid diet. After a medical procedure in 2008, the child was able to eat solid food again. However, Jacob developed problems with bladder control for a time. Now Jacob's achalasia is controlled through medication, but is sometimes aggravated by stress.

• In the summer of 2008, the school board conducted a comprehensive psycho-educational assessment of Jacob. His parents and teachers had noted that Jacob had little interest in associating with peers or in child-play activities, had poor social skills, and that he demonstrated unusual speech and motor patterns. The assessment found that Jacob suffered from Asperger's Syndrome, generalized anxiety disorder, and a non-verbal learning disability.

Some of the observations in the assessment are set out below:

• Jacob "has difficulty with environmental and social changes and reacts negatively to changes in everyday routines. He shows persistent and excessive fear or reluctance to be alone."

• Jacob "is prone to feeling scared when he is alone or in unfamiliar situations and prefers to stay close to family members or home".

The school created an individualized educational plan under which Jacob received in-class supports, and Jacob began attending the Geneva Centre, which offers programs for children with Autism Spectrum Disorders and their families.

• Psychiatrist Dr. Katharina Manassis was identified in the assessment as a resource for parents dealing with anxious children, and the parties and Jacob met with her for a consultation in the fall of 2008. They shared the psycho-educational report with her. In her consultation summary dated October 14, 2008, Dr. Manassis observed:

  • Jacob "has a high need for predictability and routine, with some preoccupation with time and schedules".

  • Jacob "has some separation anxiety symptoms, which are also gradually improving since last year. Last year, he was very upset if his mother was late picking him up from school or if he had to separate from her (e.g., when going to school)".

  • Jacob's parents "have very different parenting styles, in that his mother describes herself as a 'cautious parent', and his father is far less so". Jacob reports liking both his parents, and liking to "go places" with Father.

Dr. Manassis recommended that "structure, predictability, and consistency in Jacob's environment will be important to reduce his anxiety".

• In 2010 Jacob was assessed by Dr. Sloman at the Centre for Addiction and Mental Health (CAMH), who diagnosed him with Autism Spectrum Disorder/Asperger's and a learning disability. In the course of the assessment, Mother told Dr. Sloman that Jacob had a good relationship with Father.

• In 2011 Jacob began therapy with Jason Manett, an Academic and Life Skills coach at the Redpath Centre. Mr. Manett works with Jacob "to address social and communication issues".

Why Overnight Stays Stopped

[19] Each parent has a different explanation as to why overnight stays between Jacob and Father dwindled, and then stopped.

• Mother says that the parties agreed to suspend overnights temporarily in 2007 for a variety of reasons: Jacob's problems with achalasia; Jacob's growing unease with Father's cramped living conditions (he was living in a basement apartment in one of his houses) and with Father's irregular schedule; Father's pending move with Elena to another residence. Mother says that in 2008 when Jacob's achalasia was better-controlled, she suggested that he start overnights again, but the child demurred, and Father did not ask to have them re-instated. She suggested mediation, but Father, who was busy with a new baby, did not wish to pursue the issue. Mother acknowledges that there were some occasions between 2008 and 2010 when she asked Father to care for Jacob for an overnight because of work commitments. She says that it took careful preparation to persuade the child to do this on each occasion, and ultimately she had to promise him that she would not make him do this again.

• Father says that he never agreed to cease overnight access. He alleges that Mother stopped that access in 2007 because she was jealous when Elena became pregnant. He argues that Mother has been able to get Jacob to go on overnights with him when it suits her, and questions why she cannot now. Father says that he did not bring the issue of overnight access back to court before now because he knows that stress has a negative effect on Jacob.

[20] Regardless of the reason that overnight stays ceased, it is significant to me that it has been six years since Jacob has spent regular overnights with Father.

[21] It is also significant to me that Jacob has consistently said that he does not want to go overnight with Father. The consistency of those views is apparent from the email exchanges of the parties. The position taken by Ms. Mand on Jacob's behalf is a result of her understanding of his clear and consistent wishes.

[22] Jacob's resistance to overnight time with Father extends to multi-day trips out of the country, which of course necessarily involve overnight stays. When Father first asked for the court order directing that Jacob go on a trip to St. Kitts, the child's counsellor Mr. Manett wrote a letter to the court saying that Jacob worried that he would be forced to go on the trip to St. Kitts, and that he had consistently said he did not want to because "it would be disruptive to his activities and routine in Toronto". Jacob also told Mr. Manett that he worried that Father was not reliable (e.g., not returning home when he has told Jacob he will), and that in St. Kitts, he would have no one but Father to turn to. Mr. Manett said that he had worked with Jacob so that the child would be able to clearly express his wishes and concerns to Father.

[23] Jacob wrote a letter to the court about the proposed trip, saying that he did not want to go for the same reasons indicated by Mr. Manett, in a child's language. He protested that "I have said a million times that I just don't want to go, and my Dad said he understands, but then takes my Mum to court over the same issue."

Counselling with Dr. Sloman

[24] The parties and Jacob attended with Dr. Sloman four times between January and April of this year. The intended purpose of these sessions, as directed by Justice Paulseth, was to work together to ease Jacob into some overnight access. Mother says that these discussions never took place, because Father was focussed on getting Dr. Sloman to agree that parental alienation was the problem. Father does not deny this allegation; he says that Dr. Sloman urged him to participate in the therapeutic process and put litigation on hold, and that he did not agree. Father complains that no overnight access materialized as a result of the sessions.

[25] Dr. Sloman in a brief report dated April 9, 2013 says that Jacob "needs a lot of structure and predictability in his life. In view of the fact that his parents have separated, it would be highly desirable for the parent to be able to cooperate with regards to parenting, but unfortunately that has not been happening. I feel that the mental health system would be better designed than the legal system to achieve this goal". After the last session in April when Father made it clear that he was going to proceed with the litigation, Dr. Sloman withdrew from the family counselling, indicating that he was still willing to work individually with Jacob.

Lack of Respect Between Parents

[26] It is clear that Father and Mother each have poor opinions of each other as a parent. It would be surprising if Jacob was completely unaware of these opinions. Each parent says that the other suffers from mental illness. Father has attached as exhibits to his affidavit numerous emails from Mother expressing these opinions. Father has told Jacob that Mother is responsible for "alienating him", and has directed the child to web sites on parental alienation.

Analysis

[27] A party seeking a change to a final order of custody or access is required under section 29 of the Children's Law Reform Act to demonstrate a material change in circumstances "that affects or is likely to affect the best interests of the child". If such a change is shown, the court must consider what order is in the child's best interests.

[28] I am satisfied there have been two changes since the 2004 order that are material to the issue of the child's residential schedule:

1. The parties have not followed the schedule for six years, and Jacob has grown accustomed to a new routine.
2. Jacob is eight years older than he was when the order was made in 2004, and he objects to the schedule in that order.

[29] What order is in Jacob's best interests? Father does not pursue the suggestion of a change in custody; each party wishes a new residential schedule to be ordered, and that is the issue which I will determine.

[30] In my view, considering the undisputed evidence I have about Jacob's special needs, a continuation of the temporary order which provides for frequent daytime access is the schedule which now best meets the child's needs. This schedule gives Jacob the benefit of spending time with Father virtually the entire time that Father is in Toronto in a manner that is within Jacob's comfort zone. The schedule requested by Father of immediate forced overnights, initially with no contact with Mother, would constitute an experiment that I am not willing to undertake. None of the professionals involved with Jacob have made recommendations which would support such a course of action.

[31] When Jacob says that he is ready to try overnight stays, overnights can begin. The speed of that transition to a schedule including overnight stays will likely be greater if Father is willing to devote himself to a focussed therapeutic process involving himself and Jacob.

[32] Father cannot accept that there is any reason other than Mother's negative influence for Jacob not to want overnight stays with him. He says that it is not reasonable for a child who is almost 14 years old to have the fears that Jacob has. This belief by Father ignores all the evidence about the special vulnerabilities and needs which Jacob has a result of his Asperger's syndrome and generalized anxiety disorder. As Ms. Mand said, Jacob's fears about being left alone or not having a clear schedule are "real" to Jacob.

[33] Ms. Mand pointed out that Father's lifestyle is one which presents difficulties for Jacob, given his vulnerabilities. I can see that this would be the case. According to the evidence, Jacob is particularly focused on schedules and time; Father's lifestyle is not. From the email exchanges between the parents, it appears that his travels to and from St. Kitts are often not planned more than a few days in advance, or if they are, those plans are not communicated to Jacob and his mother. When in Toronto, Father does not go out the door to work every morning and return in the evening at a fixed time. Jacob worries when Father goes out to meet with a tenant or show a unit to a prospective tenant, not knowing when to expect a return and fretting that he is left alone. Father's relaxed attitude towards scheduling is suggested by the fact that he was over an hour and forty-five minutes late for the third session which he and Jacob and Mother were to have with Dr. Sloman.

[34] Jacob is undoubtedly strongly bonded to Mother, and is affected by some of her attitudes towards Father and his family. For example, the comment in Jacob's letter to the court that Elena is attending medical school in St. Kitts because she could not get in to one of the "good" schools in Canada is in all likelihood a notion that he picked up in Mother's home.

[35] However, the evidence is that, despite any negative comments which he may hear from Mother, Jacob has a good relationship with his father, and does not speak ill of him. Both Dr. Manassis and Dr. Sloman speak in their reports of Jacob's positive feelings towards Father. Father himself does not allege otherwise.

[36] Mother has little regard for Father, and has said in a fit of frustration that she would like him to "go away and leave us alone". Her more considered views and her actions indicate recognition that it is important for Jacob to have a good relationship with Father. Mother has supported Jacob's relationship with Father in a number of ways:

• She has supported and accommodated frequent daytime access on short notice when Father arrives from St. Kitts.
• She has attended mediation.
• She has attended counselling with Dr. Sloman with a goal of transitioning to overnight stays for Jacob.
• She has urged Jacob to try an overnight visit.
• She has reminded Father when he is forgetful of the access schedule, knowing that the schedule is important to Jacob.
• She has suggested to Jacob that he use Skype to communicate with Father when Father is in St. Kitts, but that is a technology that Father does not use.

[37] Father's claim of parental alienation by Mother is a red herring. I heard no expert evidence on the issue. Father submitted a number of articles on the subject, which I did not consider as they are proffered as expert opinion evidence, not presented in proper form, from witnesses not available for cross-examination. I did consider, however, the definition of parental alienation formulated in caselaw, by judges who have heard expert evidence.

[38] In C.S. v. M.S., Justice Craig Perkins J. described parental alienation as follows:

Children who are subject to the parental alienation syndrome (I will call them PAS children) are very powerful in their views of the non-alienating parent. The views are almost exclusively negative, to the point that the parent is demonized and seen as evil. [...] PAS children feel empowered and are rewarded for attacking the other parents and feel no remorse or shame for doing so. [...] PAS children have a knee jerk, reflexive response to support the alienator against the targeted parent, often on the basis of minimal evidence or justification. PAS children broaden their attacks to encompass members of the other parent's extended family. [...] PAS children are recruited by the alienating parent and alienated siblings to the alienating parent's cause. [...] With PAS children, you cannot be sure who you are listening to -- is it the child, is it the alienating parent, or is it Court Watch [an advocacy group supporting the father]?

[39] In W. (D.S.) v. W. (D.A.), 2012 BCSC 1522, Justice Geoffrey Barrow considered the definition of parental alienation proffered by a psychologist who subscribed to the views of Dr. Richard Gardiner:

... a disorder that arises primarily in the context of child-custody disputes. Its manifestation is the child's campaign of denigration against a parent, a campaign that has no justification. It results from a combination of a programming (brainwashing) parent's indoctrinations and the child's own contributions to the vilification of the target parent.

[40] Jacob is not a child who is subject to parental alienation.

• Jacob does not "demonize" Father. He is not engaged in a "campaign of denigration" against him. He loves his father, and says so.
• Jacob's reasons for resisting overnight stays with Father are not illogical. The reasons make sense when considered in light of his vulnerabilities and special needs.
• Although Mother dislikes Father, she is making considerable effort to assist in establishing a schedule which includes overnight stays between Jacob and Father.

Order

[41] My order is as follows:

1. When Father is in Toronto, Jacob shall have access to Father:

• on Monday, Tuesday, Thursday and Friday, when Father shall pick Jacob up after school and return him to Mother at 8 p.m., and
• on the first weekend following his return to Toronto and the last weekend before returning to St. Kitts, on Saturday and Sunday during the day.

Father shall give Mother and Jacob at least 30 days' notice of his arrival and return dates.

2. If and when Father returns to reside in Toronto permanently, access shall be during the day at a time and frequency agreed upon by the parties, in accordance with Jacob's wishes or, failing agreement, as ordered by the court.

3. Jacob shall have such further access to Father as is agreed by the parties, and in accordance with Jacob's wishes.

4. This order varies the order of November 25, 2004, and paragraphs 9-17 and 19 of that order are rescinded.

5. The balance of the claims by either party are dismissed, with the exception of costs and of a motion to change child support, which has been adjourned to October 21, 2013 at 10 a.m. for a conference.

[42] If costs are sought, the party seeking costs shall serve and file written submissions within 15 days; the responding party shall serve and file his/her responding materials within a further 15 days; reply, if any, shall be served and filed within a further 15 days.

Released: July 31, 2013

Signed: Justice E. B. Murray

Schedule A

State the Order or Orders Requested on This Motion

1. Interim custody to the Father.

2. Monthly access to the mother commencing two days before the father departs Toronto and terminating two days after the Father returns to Toronto, but not less than 14 days per month.

3. Limited telephone and electronic access to the mother at other times.

4. The vacation access provisions of the Final Order shall remain in effect.

5. The child's school, physicians and other significant caregivers shall remain unchanged.

6. The mother shall have access to the child's caregivers and shall be informed of all decisions being contemplated and her opinions shall be considered.

7. The Mother shall be restrained from badmouthing and otherwise belittling the Father and his family when the child is present and at other times.

8. Such further and other relief as this Court determines is necessary to counteract the effects of the past efforts by the Mother to alienate the child from the Father and his family.

9. The child shall be assessed and, if necessary, treated for Attachment Anxiety Disorder.

10. The father shall be provided with full information about the child's caregivers, medications and the status of any care the child is receiving.

11. The Office of the Children's Lawyer shall provide the Father with copies of the Intake Forms and any other documents and notes not yet provided.