Ontario Court of Justice

Date: October 30, 2014

Court File No.: Halton 408/11

Between:

Teresa SCOTT Applicant

— AND —

Brian LLOYD Respondent

Before: Justice Sheilagh Marie O'Connell

Heard on: February 24, 25, 27, and March 7, and March 21 and 24, 2014

Reasons for Judgment released on: October 30, 2014

Counsel:

• Steven D. Kogon, for the Applicant
• Brian Lloyd, on his own behalf

O'CONNELL J.:

1. Introduction

1The applicant, Teresa Scott, ("the mother" or "Ms Scott") has brought a motion to change and enforce the parties' separation agreement. She seeks the following orders:

1. An order increasing the amount of ongoing child support;
2. An order for retroactive child support to January 1, 2009;
3. An order enforcing the spousal support provisions in the separation agreement and for payment of all arrears forthwith;
4. An order changing the access provisions in the agreement so that any access between the child and the respondent father is at the child's discretion.

2The child, Anieca Lloyd, born February 12, 1998 ("Anieca") is 16 years old. There has been no access between Anieca and her father since December of 2010.

3In his response to the motion to change, the respondent, Brian Lloyd ("the father" or "Mr. Lloyd") seeks an order for custody of Anieca and an order that child support be based on his current income, which he states is considerably less than what he earned at the time of separation. He also seeks an order that the spousal support in the separation agreement be terminated forthwith and that all support arrears be rescinded as a remedy for what he describes as the mother's breach of the parties' agreement by deliberate parental alienation.

4At the time of trial, the spousal support arrears were in excess of $30,000.00. Mr. Lloyd's last voluntary payment of spousal support was in March of 2012.

5In this trial, I heard evidence from five witnesses, including both parties, the custody and access assessor, Ms Andrea Barclay, Mr. Lloyd's friend, Mr. Randy Stephenson, and his mother-in-law, Ms Grace Bender.

2. Issues

6The issues for me to determine in this trial are as follows:

1. What custody and access order is in the child's best interests? In making this determination, a central issue in this trial has been whether the mother engaged in a deliberate campaign of parental alienation, causing the complete estrangement between the father and daughter.

2. If I find that that there has been post-separation parental alienation caused by the mother, should the spousal support provisions in the parties' separation agreement be set aside and terminated, and all spousal support arrears rescinded as an appropriate remedy? What, if any, arrears should the father pay?

3. What should the ongoing table amount of child support be?

4. What, if any, retroactive table child support should the father pay?

3. Position of the Parties

The Mother's Position

7The mother submits that the spousal support provisions in the separation agreement should be strictly enforced, together with the cost of living increases set out in the agreement. She adamantly denies any claims of parental alienation. At the time of trial, the mother was seeking a lump sum payment in spousal support arrears in the amount of $29, 531.57.

8The mother submits that that Anieca independently made the decision that she no longer wants a relationship with her father, based on the father's abusive actions and conduct. The mother states that the father made only minimal attempts to contact and visit Anieca since the parties separated and when he did, his conduct hurt Anieca. As a result, the relationship between Anieca and her father deteriorated until it ended completely. Accordingly, any access between Anieca and her father should be at the child's discretion.

9According to the mother, the father did not raise parental alienation as an issue until he was served with the mother's motion to change in February of 2012 and this is simply an excuse to not pay spousal support.

10The mother further submits that that the retroactive child support owed between January 1, 2009 and January of 2012 is $11, 242.00. She asserts that despite repeated requests, the father never provided her the financial disclosure required to adjust the child support in the parties' separation agreement, and that since 2008, he has significantly underpaid child support, requiring a retroactive adjustment.

The Father's Position

11The father submits that the mother has engaged in deliberate parental alienation, causing the complete estrangement between him and Anieca. He seeks sole custody of Anieca and reunification therapy to repair the father-daughter relationship although he also stated throughout the trial and in his closing submissions that he did not believe a change in custody was a realistic option.

12The father submits that an appropriate remedy to address what he alleges is parental alienation is the termination of the mother's spousal support and the rescission of all arrears. He relies on the decision of Bruni v. Bruni, 2010 ONSC 6568 and states that the mother's conduct has been deliberate, calculated, evil, and unconscionable, resulting in a gross repudiation and breach of the parties' separation agreement. According to the father, the only remedy for this breach is to terminate the mother's spousal support.

13Regarding ongoing and retroactive child support, the father submits that his current income has decreased to $84,000.00 per annum, resulting in a table amount for child support of $753.00 per month, pursuant to the Child Support Guidelines.

14The father further submits that there are no arrears or retroactive payments for child support owing. He asserts that the parties entered into an amended agreement on May 6, 2010, whereby they agreed to increase child support to $1,900.00 per month and that there would be no child support arrears owed prior to May 6, 2010. Regarding arrears after May 6, 2010, the father submits that he overpaid support for the first three months of 2012, and in July of 2012, the Family Responsibility Office garnished $9,400.00 from the sale of his home. In addition, on April 18, 2013, the parties entered into a consent order, fixing the arrears of child support from January 1, 2012 to April 18, 2013 at $312.00.

4. Background Facts

15The parties began cohabiting in October of 1996 but were never married. They lived in Acton, Ontario for most of their relationship. They have one child, Anieca Lloyd, born February 12, 1998 ("Anieca"). Anieca is currently 16 years old.

16The parties separated on May 7, 2007 when Anieca was 9 years old. Anieca and Ms Scott continue to live in Acton, Ontario. Mr. Lloyd lives in Cambridge, Ontario, with his current wife and child. They were married on June 26, 2010 and their son, David Lloyd, was born on July 5, 2012. Anieca has never met David.

17The parties entered into a Separation Agreement, dated October 10, 2007 (hereinafter referred to as the "agreement"). The agreement provided that Ms Scott will have sole custody of Anieca and that Mr. Lloyd will have access "on scheduled hours as mutually agreed between Brian and Teresa on a weekly basis, such agreement not to be unreasonably withheld." The agreement also provided that Mr. Lloyd would have access on Father's Day, summer vacation, several days of Christmas vacation, and daily email and phone access, among other provisions.

18Mr. Lloyd did not have overnight access after the separation and had sporadic contact up until December of 2010, when all regular access ended. Anieca and her father have had no access since December of 2010, save and except for a brief visit at the funeral of Mr. Lloyd's mother, Anieca's grandmother, on June 27, 2012. Anieca was 12 years old at the time regular access visits ended, almost four years ago.

19The parties' agreement also stipulated that Mr. Lloyd pay child support to Ms Scott in the amount of $1,700.00 per month, based on Mr. Lloyd's annual income of $204,000.00 in 2006. The agreement also provided that Mr. Lloyd shall contribute his "share" (not defined) of Anieca's special or extraordinary expenses set out in the agreement and the costs of any classes that she attends that are mutually agreed upon by the parties.

20Section 5.9 of the agreement provides as follows:

"The parties will adjust the Table amount of child support paid each calendar year based on the parties' actual incomes for that calendar year. By no later than April 1st of each year, Brian shall provide a copy of his income tax return, as filed, for the prior calendar year (the "applicable calendar year") to Teresa. The parties shall then determine the appropriate Table amount of Brian's child support obligation for the applicable calendar year, in accordance with the Child Support Guidelines. If Brian has underpaid the Table amount of his child support obligation for the applicable calendar year, he shall provide Teresa with the additional amount owing for the applicable calendar year within 30 days. If Brian has overpaid the Table amount of his child support obligation for the applicable calendar year, he may deduct the overpayments from his current child support over three months in equal instalments."

21Mr. Lloyd's income over the years following the date of the separation agreement was as follows, according to the notices of assessment filed:

• 2007: $208,000.00
• 2008: $262,133.00
• 2009: $295,661.00
• 2010: $242,554.00
• 2011: $261,265.00
• 2012: $162,846.00
• 2013: $113,000.00

22The spousal support provisions of the agreement provide that Mr. Lloyd shall pay Ms Scott $1,000.00 per month until August 1, 2019, subject to an annual cost of living increase. The Cost of Living index has been calculated by the Family Responsibility Office as follows:

• 2008: 3.1%; monthly amount increases to $1,031.00
• 2009: no increase
• 2010: 1.0%; monthly amount increases to $1,041.31
• 2011: 3.1%; monthly amount increases to $1,073.59
• 2012: 1.5%; monthly amount increases to $1,098.90
• 2013: no increase, monthly amount is $1,098.90

23The spousal support provisions in the agreement are final and non-variable. Both parties had independent legal advice before signing the agreement. Section 7.3 of the agreement provides the following:

"7.3. Upon payment of the support in paragraph 7.1 and 7.2 above and upon completion of the property settlement as set out in this agreement at paragraph 9, Brian and Teresa are financially independent of each other and release his or her rights to spousal support from the other, now and forever.

(a) Brian and Teresa intend this Agreement to be forever final and non-variable.

(b) For greater certainty, the parties acknowledge that:

(i) they have negotiated this Agreement in an unimpeachable fashion and that the terms of this Agreement fully represents their intentions and expectations;

(ii) they have had independent legal advice and all the disclosure they have requested and require to understand the nature and consequences of this Agreement, and to come to the conclusion, as they do, that the terms of this Agreement, including the release of all spousal support rights, reflects an equitable sharing of the economic consequences of their relationship and its breakdown;

(iii) the terms of this Agreement substantially comply with the overall objectives of the Family Law Act now and in the future;

(iv) they require the courts to respect their autonomy to achieve certainty and finality in their lives…

(c) Brian and Teresa specifically wish to be able to pursue their separate and independent lives, no matter what changes may occur. Brian and Teresa specifically anticipate that one or both of them may lose their jobs, become ill and be unable to work, have additional child care responsibilities that will interfere with their ability to work, find their financial resources diminished or exhausted whether through their own fault or be affected by general economic and family conditions changing over time. Changes in their circumstances may be catastrophic, unanticipated or beyond their imagination. Nevertheless, no change, no matter how extreme or consequential for either or both of them, will alter this agreement and their view that the terms of this Agreement reflect their intention to always be separate financially. Brian and Teresa fully accept that no change whatsoever in either or both of their circumstances will entitle either of them to further spousal support from the other, now and forever."

24In May of 2010, the parties agreed to increase the child support from $1,700.00 monthly to $1,900.00 monthly. This increase in child support was reflected in a brief amended agreement signed by the parties and witnessed by a neighbour and friend of Ms Scott. The amended agreement provides as follows:

"I, Teresa Scott am accepting an extra $200.00 monthly paid as part of monthly child support payments on the 14th of every month from Brian Lloyd. (Increased from $1700.00/mth to $1900.00/mth.) The said amount will continues until May 2011, at which time said amount will be renegotiated by both parties. This takes in consideration the last three years of income stmts. [Emphasis added]"

25Ms Scott disputes that the italicized sentence above was in the amended agreement and asserts that Mr. Lloyd added this handwritten sentence after she had already signed the amended agreement.

26In November of 2011, Ms Scott filed the original agreement with the Family Responsibility Office ("FRO"). FRO started enforcement action in accordance with the original separation agreement filed, not the parties' amended agreement. FRO therefore deducted $1,700.00 monthly in child support, not $1,900.00 from Mr. Lloyd's income source. FRO also calculated the cost of living increase on the spousal support payments and adjusted those payments accordingly.

27On February 17, 2012, Ms Scott commenced this Motion to Change. She sought ongoing child support in the amount of $1,938.00 per month, based on Mr. Lloyd's increased income in 2011, in addition to retroactive support for the years 2008 to 2012, in accordance with the increases in his income and the cost of living index.

28On March 16, 2012, Mr. Lloyd responded to Ms Scott's Motion to Change and denied that any retroactive support or arrears owed. His claim for custody of Anieca is set out at paragraph 12 of his Response as follows: "The Applicant has alienated the child from me by mentally and physically poisoning her against me. I believe that the only way to save the child from this ongoing abuse and to ensure that she continues to have a healthy relationship with her father is to extricate her from the Applicant's poisonous environment."

29Mr. Lloyd's claim for the immediate termination of the spousal support provisions in the agreement is set out at paragraphs 17 of his Response as follows: "The Applicant has breached the terms of the Separation Agreement by deliberately alienating the child from her father. This is unconscionable."

30On April 4, 2012, Mr. Lloyd stopped paying all child and spousal support after he lost his job in the insurance industry as part of a restructuring of his organization. However, he obtained new employment in the same field, shortly thereafter. In October of 2013, Mr. Lloyd started new employment with DSB Claims Solutions also in the insurance industry. Mr. Lloyd continues to work at DSB Claims Solutions.

31On July 13, 2012, the parties entered into a consent order, on an interim basis, whereby they agreed to stay the enforcement of the support provisions in the agreement pending the return of the case conference on October 3, 2012. They further agreed that the $9,400.00 garnished by FRO from the net sale proceeds of Mr. Lloyd's home in July of 2012 would be released to Ms Scott for support arrears.

32In the same consent order referred to above, the parties also agreed to seek counselling for the "purposes of reconciling the relationship of the parties' daughter Anieca with her father." The parties agreed to retain Debra Rodrigues, MSW, and to implement her recommendations or directions regarding the best approach of reconciling the father and daughter relationship. The cost of the counselling was to be shared by the parties. The consent also provided that the "parties shall cooperate and encourage the child in order to facilitate the counselling."

33At the return of the parties' case conference on October 3, 2012, the parties had now retained Ms Andrea Barclay to assist with respect to Anieca's contact with her father as Ms Debra Rodrigues was not able to assist. However, rather than to provide reunification counselling, Ms Barclay was retained to conduct a custody and access assessment and to specifically address the issue of parental alienation.

34On April 15, 2013, Ms Barclay completed her custody and access report and made the following recommendations at page 12 of that report:

Recommendations:

1. The mother, Ms. Scott should have sole custody of the child Anieca Lloyd.

2. Access between Anieca and Mr. Lloyd should occur with the support of a therapist. Each party will engage in therapeutic reunification as well as Anieca, and access should occur at the discretion of the therapist. The model of therapy should include:

a. Individual counselling for Mr. Lloyd to address his emotion regulation, and positive communication patterns with Anieca

b. Individual counselling for Ms. Scott to address her personal issues including her anxiety and how they impact on the relationship between Anieca and her father,

c. Individual counselling for Anieca to assist her in working through her issues pertaining to her feelings about her relationship with her father.

d. Recommendations from the therapist for ongoing access between Anieca and Mr. Lloyd during and following therapy. The assessor will provide a list of therapists upon request.

3. In the event of a serious illness, accident or other misfortune involving Anieca Lloyd, Ms. Scott should immediately and promptly notify Mr. Lloyd.

4. Mr. Lloyd should have full access to all medical, dental, educational information pertaining to the child Anieca Lloyd, and will obtain this information directly himself through the school and doctor.

5. None of the parties should make any derogatory comment about the other or their partners in the presence of the child, and should ensure other friends, partners or family follow this requirement. Also, the parties should ensure no verbal or physical aggression in the presence of the child at any time.

35The parties have not implemented Ms Barclay's recommendations regarding counselling between Anieca and her father and or had any therapeutic reintegration between them with the assistance of a counsellor or therapist. According to Ms Scott, Anieca is refusing to engage in any counselling, either with or without her father.

36On April 18, 2013, the parties consented to a temporary order whereby Mr. Lloyd was ordered to pay $754.00 per month in child support, based on a projected income of $84,000.00 per year. In addition, the child support arrears for the period between January 1, 2012 and April 18, 2013 were fixed at $312.00. The stay of enforcement of child and spousal support was lifted.

37Currently, the Family Responsibility Office is deducting the child and spousal support payments directly from Mr. Lloyd's income source as well as a portion towards the arrears of spousal support owing. The child support order is in good standing.

5. Summary of the Relevant Evidence at Trial

Teresa Scott

38Ms Scott is 50 years old. She works in a glove factory in Acton, Ontario. She earns approximately $26, 000.00 per annum. She and Anieca live alone in a house owned by Ms Scott. Ms Scott has not re-partnered since the parties' separation and she has no other children. She was previously married and divorced.

39Ms Scott testified that she was going through her divorce when she met Mr. Lloyd where they were both working at the Bank of Montreal. They started dating in May of 1996 and were together for 11 years before they separated, in October of 2007. The parties separated previously in September of 1998, when Ms Scott moved to Guelph with Anieca for a period of several months. They reconciled and bought a home in Acton.

40Ms Scott testified that she has always been Anieca's primary caregiver. After Anieca's birth, she left her job at the Bank of Montreal and opened up a home day-care while caring for Anieca. According to Ms Scott, Mr. Lloyd worked long hours as an insurance adjustor and that he left the majority of the child care and household responsibilities to her.

41Ms. Scott described Anieca as "a bright, beautiful and well-adjusted child" who is strong academically, achieving grades in the high 80s and high 90s at her high school in Acton. She has many friends and is involved in many extracurricular activities. Ms Scott testified that Anieca has no issues at all, she does not need any counselling, and that she is very happy.

The Parties' Relationship

42Ms. Scott testified that the parties' relationship was very volatile. They argued a lot and it was "off again, on again" during their early years. Ms. Scott described Mr. Lloyd as a very angry and intimidating person. She stated that he was very confrontational and aggressive, and that his behaviour grew worse over the years, including being paranoid and very jealous. Ms. Scott felt that Mr. Lloyd demeaned and belittled her.

43Ms. Scott left with Anieca in September of 1998 and moved to Guelph, Ontario. She obtained an order for sole custody in the Ontario Court of Justice in Guelph, however the parties reconciled shortly afterwards in October of 1998. The problems between them continued and the police were at their home on several occasions as a result of altercations between them.

44Ms Scott testified that Mr. Lloyd never hit her, however, he damaged their home and threatened her. She introduced a number of photographs that she said she took between the years 2003 to 2006 wherein she described Mr. Lloyd causing serious property damage to the family during fits of anger. She produced photographs of the family home where she testified that Mr. Lloyd had pulled doors from walls and punched a hole through a door. She produced further photographs where she testified that Mr. Lloyd had smashed his clock radio. All of these photos were taken between 2003 and 2006.

45These photographs were produced for the first time at this trial and not disclosed to Mr. Lloyd until shortly before trial, nor were they provided to Ms. Barclay during the course of her assessment. In cross-examination, Ms. Scott did not explain why she had taken the photographs of the damaged property between 2003 and 2006. She did not have an explanation for why she did not show any of the photos to Ms. Barclay or mention it to her during the custody and access assessment. She acknowledged that she never reported any of these incidents to the police. It was unclear from her evidence why Ms Scott took these photographs, some of them more than four years before the separation, and why they were never disclosed until shortly before this trial.

46Ms. Scott also testified that in December of 2006, Mr. Lloyd, in a fit of anger, had ripped up all of Anieca's drawings on the wall in the master bedroom and then left the ripped drawings in the hallway for Anieca to find. Ms. Scott testified that Anieca was very upset when she saw the drawings. Ms. Scott also took photos of these pictures and disclosed them for the first time at this trial. She acknowledged that she had also not mentioned this incident to Ms Barclay.

47Ms Scott also described an incident in which Mr. Lloyd angrily took out one of his hunting rifles and cocked it, implying that he was threatening to kill her. On this occasion the police were called and Ms. Scott and Anieca left the home for a number of weeks before returning. In cross-examination, Ms Scott acknowledged that it was Mr. Lloyd who contacted the police on that occasion. She further acknowledged that the police did not arrest or charge Mr. Lloyd although she disagreed with the account in the police report produced by Mr. Lloyd at trial.

48Ms. Scott acknowledged that she has never called the police with respect to any incidents between herself and Mr. Lloyd during their cohabitation and that on all three occasions that the police were called to the home, Mr. Lloyd had called them.

49Ms. Scott testified that Mr. Lloyd was an avid motorcycle rider and that he rode with members of the Hell's Angels and the "Redliners", including someone named Brian Road. Ms. Scott also described witnessing Mr. Lloyd and his friends beating up people in bars when they were younger and drinking and that Mr. Lloyd used cocaine in the early years of their relationship. She stated that he used cocaine until 1999 or 2000. In cross-examination, Ms Scott acknowledged that she had in fact introduced Brian Roach to Mr. Lloyd as he was a boyfriend of one of her former girlfriends.

Anieca and Her Relationship with Mr. Lloyd

50Ms. Scott testified that when Anieca was younger, she and her father had "some good times", but as the years progressed, she described the relationship as very strained. She stated that Mr. Lloyd was hardly every home, he was either working or engaged in his own pursuits, such as going to the gym or motorcycling with friends. She stated that Anieca witnessed her father's anger and yelling and that he would often take his anger for Ms Scott out on Anieca, including yelling and swearing at both of them. According to Ms Scott, Anieca's refusal to see Mr. Lloyd is entirely justifiable as she was "petrified" of him.

51Regarding custody and access provisions in the separation agreement, Ms Scott testified that Mr. Lloyd never disputed sole custody and he never sought a specified or defined access schedule in the separation agreement. According to Ms Scott, Mr. Lloyd never spent a lot of time with Anieca. In year after the separation, he was visiting Anieca approximately once or twice each week for short visits, and never overnight. She stated that he would often bring Anieca back early from a visit, and she would come home to find Anieca waiting for her. Ms Scott testified that Mr. Lloyd's time with Anieca became more sporadic and less frequent over the years until he finally stopped seeing her at all in December of 2010.

52However, in cross-examination, Ms Scott eventually conceded that Mr. Lloyd had asked a number of times for specified and overnight access but that she would not provide a regular schedule to Mr. Lloyd until Mr. Lloyd provided her with his work schedule. She explained that Mr. Lloyd refused to provide his work schedule to her or to provide bedroom furniture for Anieca in his home, hence they could not agree upon a regular access schedule. She later stated that there was no access schedule "due to Anieca's fear of him". She further testified that she recalled meeting with Mr. Lloyd once to discuss scheduling access, however, it did not happen because Mr. Lloyd was not providing his notices of assessment to her.

53Ms. Scott testified that that Anieca never wanted to have visits with her father and that "she went because she had to go". She stated that she made every effort to send Anieca to the visits with her father and told her that she had to go. She stated that there were lengthy periods of time when Mr. Lloyd would not see Anieca and that he never sought access through the courts until he was served with her motion to change, two years after his last visit with Anieca.

54When asked why her copy of the separation agreement had all of the Christmas and summer holidays scratched out in pen, unlike the copy that Mr. Mr. Lloyd had and that the parties originally signed, Ms. Scott testified that because of the stress that Anieca was under in 2007, they both agreed to scratch out the summer and Christmas holidays.

55Ms Scott disagreed with the findings of the custody and access assessor that her conduct had contributed to the estrangement between Anieca and her father. She testified that the only time that she interfered with access was after an incident that occurred on January 3, 2009. On this occasion, Mr. Lloyd had come to the home to pick up Anieca for a visit and the parties had a major argument in front of Anieca. She stated that Mr. Lloyd became extremely angry and was yelling and swearing at her, calling her and Anieca "fucking cunt" and "fucking bitch". He then left with Anieca for their visit, however, he returned home with her shortly afterwards. Ms Scott testified that Mr. Lloyd became very angry with Anieca during the visit and told Anieca that if she did not want a relationship with him, then he would start a new family without her.

56The next day Mr Lloyd call to apologize, however, Ms Scott refused to let him speak to Anieca and advised him that she was denying him access until he got counselling for anger management. She testified that Anieca was very distraught after this visit. According to Ms Scott, she did not allow Mr. Lloyd to see Anieca for a period of approximately one month after this incident.

57Other than that occasion, Ms. Scott testified that she always encouraged Anieca to visit her father. However, at other points in her testimony, she stated that it was up to Anieca to determine if and when she would see her father. At this time, she described Anieca and her father as having "no relationship".

58When asked what efforts she made to repair the relationship between Anieca and her father, Ms Scott testified that she tried to explain to Anieca that "it was not her that he was angry with, it was me." She further claimed that the parties had also attended counselling twice with Ms Barclay and once with Ms Sheila Brown. It was later clarified that that Ms Barclay's with her and with Anieca were not counselling sessions, but part of the custody and access assessment process and that Ms Brown was actually a mediator that the parties retained to negotiate their separation agreement in 2007.

59Ms. Scott denied providing Anieca with detailed information about the conflict between herself and Mr. Lloyd and about information regarding the court case. She disagreed with Ms. Barclay's finding in the custody and access report that she was sharing this information with Anieca, which was damaging to Anieca and her relationship with her father. She claimed that she never told Anieca anything about court.

60When asked to explain how Anieca has such detailed information about the conflict and the court case, Ms Scott then testified that if Anieca had learned anything about the court case then she must have heard this through Ms. Scott's conversations with her sister. She admitted that since Anieca was approximately nine years old, Ms Scott has had numerous conversations with her sister about her relationship with Mr. Lloyd and the court proceedings and that Anieca may have heard these conversations. She further testified that she could not control what Anieca heard her say about Mr. Lloyd and court because Anieca was "eavesdropping".

The Father's Letters to Anieca

61Ms. Scott acknowledged that Mr. Lloyd did send letters, Christmas cards and birthday cards to Anieca and that she ensured that Anieca received each and every card and letter that Mr. Lloyd sent. She pointed out that Anieca had responded to some of those letters. Ms Scott attempted to introduce approximately eight letters from Anieca as proof that she had responded. Some of these letters appeared to be original letters written by Anieca so it was unclear if they had ever been sent to Mr. Lloyd and when they were written. Some of the copies were already produced by Mr. Lloyd in his document brief at trial.

62Ms. Scott testified that she read all of the letters from Mr. Lloyd after Anieca received them and she described these letters as angry and confrontational in which he would blame Anieca and Ms. Scott for everything that was wrong in their relationship and take no responsibility for his conduct.

63Ms. Scott further acknowledged receiving the letters that Mr. Lloyd produced with respect to requesting Christmas access and time with Anieca, however, she testified that those letters were addressed to Anieca, not her, and therefore it was up to Anieca to determine when and how she would see her father. Ms. Scott testified that she allowed Anieca to make this determination, as Mr. Lloyd never communicated with her directly or made this request of her.

The Death of Anieca's Paternal Grandmother

64Ms. Scott denied refusing to allow Anieca see her paternal grandmother before she died. She testified that she did not receive any information from Mr. Lloyd with respect to the grandmother's illness and that she was unaware of how ill the grandmother was. She had received, along with other friends and family, a "mass email" from Mr. Lloyd's father in the summer of 2009, but when she attempted to contact Mr. Lloyd, she was advised that it was "no big deal". Ms. Scott testified that Mr. Lloyd and his father or other family members never once called her directly to advise her of how serious the situation was with Mr. Lloyd's mother. She testified in cross-examination that it was up to Mr. Lloyd to arrange for Anieca to see her grandmother before she died and that she was waiting for Mr. Lloyd to call her if it was necessary.

65Ms. Scott further stated that she never once prevented Anieca from going to the hospital. Anieca received each and every letter from Mr. Lloyd requesting her to visit her grandmother. Ms Scott testified that she did not know how grave the situation was until Mr. Lloyd contacted the school to inform Anieca that her grandmother was close to dying. Mr. Lloyd did not inform Ms Scott of this information. Ms Scott stated that as soon as she received this information from the school, she immediately made arrangements for Anieca to attend the hospital and she ensured that Anieca attended the funeral.

The Custody and Access Report

66Ms. Scott stated in cross-examination that she did not agree with Ms. Barclay's recommendations and that she denied the "legitimacy of this report". She confirmed that she did not engage in the counselling recommended by Ms Barclay, to address her personal issues including her anxiety and how they impact on the relationship between Anieca and her father. She stated that "they are just recommendations". She admitted that she has suffered from anxiety in the past and that she had received treatment and medication for her anxiety. However, she testified that because she no longer has any contact with Mr. Lloyd this is no longer an issue for her and she does not need any counselling. She blamed her anxiety on Mr. Lloyd.

67Ms. Scott also did not agree with Ms Barclay's recommendation that Anieca should attend counselling to assist her in working through her issues pertaining to her feelings about her relationship with her father. She conceded that she told Ms Barclay that Anieca had experienced stress and anxiety related symptoms such as stomach aches and that she had drawn pictures depicting fear of her father, and that she had also told Ms Barclay that Anieca has a fear of men. Yet she did not agree that Anieca needed counselling. She did not dispute that she had made no attempts to engage Anieca in counselling or therapeutic services. She stated that Anieca is a happy and well-adjusted child with no issues. She then appeared to change her evidence and stated that she told Anieca that she was to go to counselling but Anieca refused.

68Ms Scott continued to maintain that she would try to facilitate access between Mr. Lloyd and Anieca, however Anieca simply refuses to go and she will not force her to go. She testified that if Mr. Lloyd wished to visit Anieca tomorrow then she would try to facilitate this.

69When asked about an incident that occurred in October of 2013 when Mr. Lloyd tried to visit Anieca at her high school, Ms Scott testified that Anieca had called her on her cell phone while hiding in the school bathroom after she was called down to the office and told that father wanted to see her. Ms. Scott testified that she immediately left work and went to the school. She described finding Anieca in the bathroom crying uncontrollably and completely hysterical. She immediately removed Anieca from the school. When showed a photograph of Anieca and Ms. Scott walking past him in the school hall and refusing to acknowledge him while Ms. Scott and Anieca are clutching each other, Ms. Scott repeated that Anieca was terrified of Mr. Lloyd because of his anger and swearing and the violence that she witnessed.

70Ms Scott appeared to be upset with the school principle regarding this incident and stated that they should not have allowed this to happen and should have informed her of the father's request.

The Separation Agreement and Claim for Retroactive Child Support

71Ms. Scott stated that she filed the parties' separation agreement with the Family Responsibility Office in November of 2011 because Mr. Lloyd was not providing the cost of living increases pursuant to the spousal support provisions in the agreement and that despite her repeated requests, he was not providing updated financial disclosure to adjust the child support accordingly. Ms. Scott testified that she repeatedly asked for Mr. Lloyd's notices of assessment for the period prior to 2011 and he refused to provide that information to her.

72Ms. Scott stated that both parties received independent legal advice before signing the agreement and that it was Mr. Lloyd's lawyer who drafted the agreement. She explained that she agreed to receive an amount of spousal support that was significantly less than what she was entitled to because the parties agreed that the amount she would receive would be guaranteed for a period of 12 years. She was advised that this length of time was significantly longer than the recommendations of the Spousal Support Advisory Guidelines, based on her circumstances.

73Ms Scott conceded that the parties had signed an amended agreement regarding child support in May of 2010, entered as an exhibit at trial. According to Ms Scott, the parties agreed to increase the child support by $200 to $1900.00 per month in 2010. However Ms Scott testified that she only agreed to that increase because she could not receive anything more from Mr. Lloyd or the financial disclosure that she requested. Ms Scott further denied agreeing that there were no arrears owing prior to May of 2010. She stated that the hand-written portion included in the amended agreement was added by Mr. Lloyd after she signed the agreement.

74Mr. Lloyd produced a letter that Ms Scott signed on June 17, 2010 to Revenue Canada, approximately one month after the amended agreement was signed. The letter confirmed that there were no arrears owing and that all child and support was up to date, Ms. Scott acknowledged signing this letter however, she states that Mr. Lloyd had forced her to sign the letter as "the more she complied, the easier things would have been with Mr. Lloyd". She also stated that she signed the letter because she was afraid of Mr. Lloyd.

Mr. Brian Lloyd

75Mr. Lloyd is 45 years old. He is an insurance adjuster. He is married to Laurel Bender. They married in June of 2010. They have one child, namely David Lloyd, who was born on July 5, 2012. Mr. Lloyd, his wife and his son reside in Cambridge, Ontario. Mr. Lloyd is currently employed at DSB Claims Solutions.

76Mr. Lloyd also described the relationship between the parties as being very volatile in which the parties fought frequently and broke up often. He stated that he never agreed to marry Ms Scott "despite her pleadings" because of the misgivings that he had about the relationship. He stated that he tried to make it work for "twelve long years" and that he never wanted to marry Ms Scott given their difficult relationship. Mr. Lloyd stated that it "infuriated" Ms Scott that he married Ms Bender within one year of their separation.

77Mr. Lloyd spoke openly about his addiction to drugs and alcohol and stated that he abused drugs during the early years of the parties' relationship up until the birth of Anieca. He testified that he has been clean and sober for the past 14 years. Mr. Lloyd testified that he is now actively involved in providing counselling for teens and offenders with drug problems and that he speaks at the Maplehurst Correctional Institute and raises funds through the Freedom Ride for Teen Challenge Charity and other organizations around awareness about drug and alcohol abuse. Mr. Lloyd described himself as a former "elite athlete" and placed third in rowing and second in body building in provincial championships in 1998.

78Mr. Lloyd described Ms. Scott as a "liar" and "monster". He described Ms. Scott as a "cold", "calculating" and "deviant" person who has destroyed his relationship with Anieca. He describes Anieca as being "stolen" and "kidnapped" from him. He testified that he has complete non-access to Anieca since 2010 and that the only time he has seen her since that time was at his mother's funeral and once in October of 2013 when he tried to visit her at her school.

The Videotaped Evidence of Family Visits

79Mr. Lloyd testified that prior to the separation he and Anieca had a warm, loving and close relationship. He introduced a series of videotapes at the outset of his examination in-chief which he stated would demonstrate how warm and close Anieca and he were prior to and immediately after the separation. He testified that the videotapes demonstrate that Anieca has gone from a fun-loving and warm daughter to a "closed, cold, funnel for her mother".

80All of the videotaped evidence was introduced at trial, on consent of the parties. The video-tapes were excerpts of various visits and interactions between Anieca and her father in 2006 and 2007. They were not recorded surreptitiously and other family members were sometimes present during the recordings. Everyone appeared to be aware that they were being recorded, including Anieca. The videos appeared to be excerpts of various family events and occasions. Mr. Lloyd did not play the entire video of each visit or interaction, but only portions of the visits or events. Mr. Lloyd introduced the following excerpts from family videos:

a. Anieca with both parents at a family vacation in Whistler between January 25, 2006 and December 2007, prior to separation;

b. Anieca with Mr. Lloyd and family and friends at the Medieval Times in 2006 Anieca is 8 years old, prior to separation;

c. May 5, 2006 Anieca at Oreo's birthday (their dog). Anieca is 8 years old.

d. May 15, 2007 Anieca having lunch with Mr. Lloyd and his sister and her husband and their children. Anieca is 9 years old.

e. July, 2007 Anieca and Mr. Lloyd at a friend's home, playing in the pool;

f. July, 2007 Anieca and Mr. Lloyd playing at Pinecliffe Park;

g. November 24, 2007 Anieca with her father at her father's home;

h. December 5, 2007 Anieca with her father at her father's home.

81Mr. Lloyd also introduced some excerpts from videos of Anieca and her parents at Disney World, Great Wolf Lodge, and a school play and Christmas concert in 2006 prior to separation.

82The court reviewed the videotapes very carefully. Contrary to the father's position, the videotaped evidence he produced at trial did not overwhelmingly demonstrate that Anieca historically had a very close and loving relationship with him and thus, Anieca has somehow inexplicably turned against him. There were a few clear moments in some of the early videos during the Whistler family vacation in 2006 where Anieca is seen to be joking and laughing with her mother and father and making silly jokes while she pretends to interview them. As well, Anieca can be seen laughing with her father while playing with the family dog in 2006 and in 2007, in another video, Anieca is putting stickers on her father's face in in a playful fashion.

83Save and except for those excerpts, however, the balance of the video recordings demonstrate that the relationship between Anieca and her father was strained and distant as in late 2006 and early 2007. In most of the excerpts that the father played at trial, the court saw a reserved and withdrawn child who did not appear at all happy that her father was videotaping her during what appeared to be staged and self-serving situations. Mr. Lloyd also appeared disengaged and more interested in videotaping then interacting with his daughter.

Mr. Lloyd's Post-Separation Contact with Anieca

84Mr. Lloyd testified that he began to notice the reservations in Anieca in the beginning of 2008. He testified that almost all of his contact with Anieca in 2008 was in the presence of Anieca's mother. He recalled that he was permitted to play basketball with Anieca once for about thirty minutes in the summer of 2008 in a parking lot while Ms. Scott watched.

85Mr. Lloyd testified that in January of 2009 the "tap started turning off" and then by the middle of 2009, "it had turned off completely". Mr. Lloyd testified that he only saw Anieca four times in 2009. He had kept a record of these visits and telephone calls.

86Mr. Lloyd also described the confrontation with Ms Scott on January 3, 2009. Both parties seemed to view this incident as a pivotal moment in the breakdown of Mr. Lloyd's relationship with Anieca. He testified that when he went to pick up Anieca for a visit, the parties got into an argument about financial issues. They were yelling at each other and Ms. Scott was swearing at him. He stated that Ms Scott slammed the door in his face. Anieca witnessed the entire incident. He then drove Anieca to his home where he made Kraft dinner. Mr. Lloyd testified that he asked Anieca if she had used the skis that he had bought her for Christmas and who had she gone skiing with. Mr. Lloyd testified that Anieca responded by saying, "That's none of your business. You don't need to know that." He believed that Anieca sounded much older as if she had been coached to say this to him.

87Mr. Lloyd admitted that he was angry and that he told Anieca she was disrespectful, that she could not talk to him that way and that he was taking her home if that was the way she was going to behave. He then he was going to bring her home and he took her home immediately. He denied yelling and swearing at Anieca. He denied saying to her that if she was not going to make any effort, then neither was he.

88The next time that Mr. Lloyd saw Anieca was in May of 2009, approximately five months later. On May 26, 2009, Mr. Lloyd took Anieca and Ms Scott to the Subway restaurant, where they spent approximately one hour together. Mr. Lloyd provided no explanation for the five month gap except that Anieca did not want to see him. There was no record of phone calls introduced. In the 26 letters and cards produced by Mr. Lloyd, there are only two cards sent by Mr. Lloyd to Anieca during this period of time, one on January 21, 2009 and one in February 2009. The cards are friendly and loving, but do not contain an apology. There is no evidence that Mr. Lloyd apologised to Anieca for what happened on January 21, 2009 or for the five month delay in seeing her.

89The next visit between Mr. Lloyd and Anieca occurred on June 5, 2009 at the Milton Mall, again in the presence of Ms Scott and they went shopping. The last visit in 2009 occurred on July 30, 2009 when Mr. Lloyd met with Anieca for approximately 30 minutes in front of her home. There was no contact on Father's Day.

90Mr. Lloyd testified that on August 3, 2009 he called Anieca to see if she wanted to go to the CNE. She declined and responded to his questions with one word answers. He called her again on August 7 and August 10th, and told her that he was moving to a different town. On August 12, 2009, Anieca called him and asked why he had not told her before that he was moving. According to Mr. Lloyd, Anieca did not want to come to his home or see him, so "why bother?" Mr. Lloyd could not recall if he actually said that to Anieca or he just was thinking that, but Anieca hung up on him.

91Mr. Lloyd testified that he next saw Anieca on September 4, 2009 walking with her mother and some friends while he was driving by. He yelled to her and she ignored him. Mr. Lloyd said he tried to say hi to Anieca and she would not turn her head and tried to pretend that he was not there. He called Anieca on September 8, 2009 to wish her a good day at school and Anieca asked him for the "Wii" game that he had bought her at his home. They spoke again on September 21, 2009 and Anieca again asked for the Wii, to which Mr. Lloyd refused. Anieca asked him where he was moving and Mr. Lloyd told her that he "would provide the address when we [he and his partner] move in."

92In November of 2009 Mr. Lloyd called Anieca to let her know that her grandmother had been diagnosed with cancer. He testified that he provided her with the names of her doctors and some information regarding her treatment. He called again the next day and according to Mr. Lloyd, Anieca seemed very angry. Mr. Lloyd asked Anieca why she was angry and Anieca, according to Mr. Lloyd said to him, "You obviously haven't been listening." Mr. Lloyd then testified that he became angry and stated, "Where do you think the money is coming from to feed and shelter you". Anieca then hung up the phone.

93Mr. Lloyd testified that Anieca called back and said she was old enough to make her own decisions at that time and that she did not want to see him. Mr. Lloyd testified that he said the following to Anieca, "The only reason that I forgive you is because your mother has filled your head with lies. The reason that I don't call as often is because you don't want anything to do with me." Mr. Lloyd testified that he could hear Ms. Scott in the background and believed that she was listening on the end. Mr. Lloyd testified that Anieca also accused him of yelling at her. Anieca was 11 years old at this time.

94Mr. Lloyd testified that he had no phone calls from Anieca in December of 2009 nor did he receive a card from her for his birthday. He testified that on December 5, 2009 he sent Anieca a Christmas card with a $50 gift certificate however they did not have any contact over Christmas of that year.

95Mr. Lloyd had only the four visits with Anieca in the entire year of 2009, described above. He testified that he had even less time with Anieca in 2010. His last visit with Anieca was on December 26, 2010. He had no further contact with her until June of 2012 at his mother's funeral.

96When asked to describe his last visit on December 26th, 2010, Mr. Lloyd testified that it just "a regular visit". He had not seen Anieca for a couple of months and he was "allowed to see her" on that day. They went to MacDonald's and were there for approximately 45 minutes. He testified that Anieca responded to his questions with one word answers and he took her home because she was not responding. He denied saying to her that if she was not going to make an effort, then neither was he. He had no further visits with her after that.

97When asked by the court why he never brought an application for access to Anieca, Mr. Lloyd testified that he had spoken with his lawyer at the time and was advised that it was not worth pursuing that he would be "wasting his time." He was apparently advised that he would spend hundreds of thousands of dollars and not be successful. He testified that he was already spending $2,900.000 per month (in child and spousal support) and that he did not have any more money to spend on lawyers. In 2009, Anieca was 11 years old.

98When asked by the court why he did not seek an access schedule in the separation agreement, Mr. Lloyd testified that it was a volatile situation and he was advised it was probably not in his best interests to fight and that he did not know anything about separation agreements. He further testified that at the time he and Ms. Scott were getting along and he thought that they were able to work out the custody and access arrangements after he left the family home in October of 2007.

99When asked in cross-examination why he did not tell Anieca that he was getting married in June of 2010, and why he did not invite Anieca to his wedding, Mr. Lloyd initially testified that he did invite Anieca to his wedding. This directly contradicted the evidence of the custody and access assessor who indicated that Mr. Lloyd told her that he struggled with his decision not to invite Anieca to his wedding but in the end decided not to because he did not want Anieca to disrupt the wedding. Mr. Lloyd later appeared to change his evidence regarding this issue. Mr. Lloyd acknowledged that Anieca was upset when she discovered that her father had remarried and she had not been invited to the wedding. He acknowledged getting the following letter from Anieca, sent sometime in July of 2011, included in his document brief, a portion of which stated the following:

"…Then once things are bad between us you go on and get married! Married! And to boot you dont even tell me till about 4 months later. 4 month! And you didnt invite me. You can not use the excuse of me not wanting to come. Because thats all it is an excuse. You didnt even ask me…"[ sic ]

The Death of Anieca's Paternal Grandmother

100Mr. Lloyd testified that he sent six letter warning Anieca that her grandmother was dying of cancer over a period of six months and that he received no reply to any of the letters. He testified that all of these letters were ignored. Mr. Lloyd testified that his mother's dying wish was to see her granddaughter and that Ms. Scott prevented that and Anieca refused to see her.

101Mr. Lloyd described Ms Scott's actions in this regard as being unconscionable. The only way Anieca could get to the hospital to see her grandmother was if Ms. Scott transported her. He testified that it was not until he reached Anieca on a school field trip two days before her grandmother died and spoke to the school principal that Anieca was finally brought to the hospital by Ms. Scott. He testified that the promise that he made to his mother was "broken" and Ms. Scott had deliberately denied her daughter the right to see her grandmother before her death. He became very emotional when describing these events.

102Copies of the six letters that Mr. Lloyd wrote to Anieca during this six month period were entered as exhibits at trial. They were written on October 26, 2011, November 14, 2011, December 7, 2011, January 14, 2012, February 3, 2012, and February 16, 2012. Two versions of the October 26, 2011 letter were entered. Three of the letters are relatively lengthy and are quite angry in tone and content. Each letter addresses a variety of different subjects, in addition to the subject of Mr. Lloyd's mother and two of the letters are in response to letters from Anieca. Anieca was 13 years old during this time period. For example, portions of the letter written to Anieca on January 14, 2012, read as follows:

Anieca,

What yelling and lies are you talking about. Is this the best strategy that you and your Mother have come up with. Well nice try, and good luck with all of that.

Again, it is wrong to lie, you are 13 going on 14 and know the benefits of telling the truth and should have been advised of the consequences of lying by your "Mother". The problem with lying is that you have an awful lot to memorize and it becomes extremely difficult at some point. One could say impossible….Judges also have a way of determining whether people are telling the truth. This is a skill set they learn over the years of dealing with situations like this time and time again. The truth always comes out regardless of whatever schemes people fabricated….

Now, "as you put it" onto your grandparents, I find it strange that despite my letters of October 26th and December 7th advising that your Grandmother is suffering from a Serious Diagnosis of Cancer the 2nd time in as many years that I have not heard back from you with a willingness to see or even talk to her by phone?

I indicated in my December 7th letter that should you present an interest I would provide you with all of the particulars in how to speak or see her in Hospital. Again as you have explicitly communicated that you want nothing to do with me, I gave you every opportunity to make contact and or inquire as to seeing or speaking with your grandmother. Your Mother could have driven you to see her. I trusted that you would at the very least make contact, inquire, ask, anything….Nothing, no response, no concern, not a word from you or your Mother.

Your grandmother spent 5 weeks in Hospital, suffering greatly, and asked for you repeatedly. I indicated that I wrote you twice and proposed coming to see her but never heard back from you of your Mother. Do you know how heartbreaking that is for someone that loves you? Do you even care?

103Mr. Lloyd felt that letter was appropriate and justified in the circumstances. He acknowledged that he never actually called Anieca during this period of time to explain to her the nature of her grandmother's illness or to make arrangements with her mother to drive Anieca to the hospital. The first two letters that he wrote to Anieca before the above letter make no mention that his mother was in the hospital or the extent of her illness. The first letter, dated October 26, 2011 simply states, "Grandmother was getting more treatment". The second letter, dated November 14, 2011 states, "Grammy is getting more treatment. Please give me a call and I will fill you in on all the details." This is the extent of the information provided.

104Mr. Lloyd introduced a letter that Anieca wrote him on November 4, 2011 in which she expressed hurt and anger over a number of issues. This letter was entered into evidence. In that letter, Anieca expresses hurt over the fact that no one had told her about her grandmother's illness up to that point. She stated, "You know it hurts me that they wont even tell me that she might die again. I found out that she was even sick by an accident. You guys wernt planning on telling me. That hurts a lot." [ sic ].

105The third letter dated December 7, 2011, does contain more information about the grandmother's treatment for cancer, in response to Anieca's November 4th letter. That letter reads as follows:

Anieca ,

Thank you for your letter of November 4th received Tuesday November 15th. Your first paragraph is incorrect, I am not "seeking forgiveness" as you have suggested and don't understand your reference here. Please clarify.

I am not certain of the reason for the tone of your letter but can assure you it is uncalled for and disrespectful

As you are aware I have not been granted access to you for the last 4 years in direct contravention with the terms of the separation agreement. Your Mothers sole purpose on this earth seems to be to drive a wedge between you and I.

Your letter is disrespectful and perhaps most alarmingly inaccurate. I am not sure if this is what you intended.

Your position is loud and clear and you don't seem to want anything to do with me. Repeatedly I have heard this from you, over and again. And yet somehow there is an incumbent duty upon me and my family to keep you abreast of the developments in our lives.

Repeatedly I have asked you to meet with me in every possible situation and scenario imaginable only to be refused for no reason. There is absolutely no reason for you to be angry with me.

This fabricated nonsense about anger is getting a little old don't you think? You do realize that now at the age of 13 it is wrong to lie.

With regard to your 2nd paragraph please clarify your context here. I have repeatedly sought to meet with you or communicate in many ways only to be denied.

In your paragraph 3 please clarify what is meant by ; "all the lies". What lies? What are you referring to here?

Your suggestion that my family has somehow avoided you is complete nonsense. My parents have done everything they could to meet with you.

However they have managed to meet with you only once over the last year at your discretion.

How many times have you called, written, emailed or acknowledge the existence of your Grandparents? None, zero.

Your Grandparent, Grammy and Grammpy love you and would like nothing more to see you, yet you push everyone away. I facilitated the last meeting between you and my parents on May 28th, 2011. They indicated to you at that time that they would meet with you whenever you want. No response was ever received.

In my last letter of October 2, 2011, I advised you of my mother, Your Grandmother was "getting more treatment".

Her treatment continues for Radiation and Chemotherapy for Cancer.

If you would like to see your Grandmother please contact me and I will give you all the particulars. As you indicated quite clearly not to want to have anything to do with me; as in your; "…move on and let it go", and "not worth(your ) time", reference. Quite admirable language by the way. Where did you learn to talk like that? Is that somehow acceptable language? Do you speak to your teachers that way? I sincerely hope not.

Please contact me and I will give you all the necessary contact information so that you can Visit your Grandmother in Hospital. I trust you can make your own arrangements. Her condition is very serious.

With regard to your not wanting to see me that is fine. You do not need to speak with such an ignorant tone. I am not one of the kids at school and deserve some respect. Your manufactured anger is misplaced and quite palpable.

It is self evident that it really doesn't matter what I say or do you clearly will never want to see me. Is this your real position? Do you really think you are old enough to make this decision based on the very few times I have been granted access to see you?

We did at one point have a good relationship we used to laugh and use funny language when playing with the Dog. We used to do a lot of things together. I used to read you Bedtime stories and call you funny names like "Silly Goose". Now you would like to abandon any possible chance of a relationship with your Father, and why? For Dramatic pause or is this a real legitimate request. If so please confirm.

I am fully aware that your mother has been active in this poisoning of your impression of me. However that aside I would like your advice on whether you would like to see me again.

I have not been granted the opportunity to see you since December 26 of last year, and then only for one hour at MacDonald's, despite countless attempts at doing so. This is not even close to the definition of access as is stipulated in the Family Law Act .

Please explain the following phrases and their contact;

"I am not ever going to try to make this work";

"save your breath move on and let it go";

Thank you,

Dad. [sic]

106Mr. Lloyd felt that the letter was appropriate and justified in the circumstances. He did not see anything wrong with that letter to Anieca. Anieca was 13 years old at the time.

107Mr. Lloyd also acknowledged that he did not contact Ms Scott during this period of his mother's illness, either by telephone or in writing to provide more information to her regarding the seriousness of his mother's illness, even though he was corresponding to her about financial and support issues. He did not contact her to request that she facilitate a visit between Anieca and his mother. He acknowledged that all of the letters that mentioned his mother were sent directly to Anieca and not to Ms. Scott. He acknowledged that he contacted Anieca's school to inform her of the gravity of his mother's illness just shortly before her death, and not Ms Scott. It was after this phone call that Ms Scott arranged for Anieca to see her grandmother at the hospital.

Letters to Anieca

108Mr. Lloyd further testified that he has sent in excess of 40 letters to Anieca attempting to establish contact and he has received very few responses. Mr. Lloyd believes that Ms. Scott has refused to provide these letters to Anieca and that she had intercepted these letters in a "sick campaign of hatred", to use his words. He states that he is unable to find a more serious breach of access, and that the "sheer volume" of the letters and cards sent that were not responded to is evidence that his attempts at contact were thwarted by the mother.

Response to Allegations of Anger and Abusive Behaviour

109Mr. Lloyd denied that he had an anger management problem although he did state that if he was angry that this was justified, given his despair and anguish over the loss of his relationship with this daughter through no fault of his own. He denied swearing at Anieca or calling her names. Mr. Lloyd denied telling Anieca that she would never hear from his again because he was not going to try if she did not try to see him. He further denied saying to Anieca that he was going to start a new family and she would not hear from his again during one of their visits.

110In cross-examination Mr. Lloyd denied or did not recall causing the property damage described by Ms Scott and he adamantly denied ripping up any of the pictures that Anieca had made for him. He testified that has kept all of the pictures that Anieca has made for him over the years and he would never destroyed pictures that Anieca has made for him when she was much younger. He brought many of Anieca's pictures and cards to court for the court to review.

111Mr. Lloyd admitted to kicking out Ms Scott's sister and family from the home at Christmas after they were homeless because of a house fire. He stated that he was justified in so doing because the husband was a "crack head" and he never wanted him in his home in the first place, which he had made clear to Ms Scott.

112Mr. Lloyd denied refusing to consent to sign a travel agreement permitting Anieca and her mother to travel to Costa Rica in March of 2013. He acknowledged that there was a delay in providing the consent, although he stated that this was an administrative error by his assistant. He was aware that Ms. Scott was leaving on March 22, 2013 and by March 20th he still had not provided the consent to travel document. However, he did not understand why her counsel would not meet him in a coffee shop to retrieve the consent to travel document on the day before her planned vacation rather than go to court. Mr. Lloyd viewed Ms. Scott's bringing of a motion on that day instead to be completely unreasonable and unfair.

113Regarding his contact with the criminal justice system, Mr. Lloyd acknowledged that he was charged on May 5, 2009 with assault causing bodily harm during a "road rage" incident. Mr. Lloyd stated that this was a case of self-defence in which he was cut off by another motorist who refused to let him pass. Mr. Lloyd gestured to him to pull over and when he did and got out, Mr. Lloyd thought he saw a weapon behind the other motorist's back. As a result Mr. Lloyd got out his car and punched him in the face knocking him out cold on the ground. He then pulled him up and dragged him back to his truck where he put him into his truck and put his hands on the wheel while the motorist was still unconscious. Mr. Lloyd stated that he received a conditional discharge for this offence.

114Mr. Lloyd acknowledged that he also had an altercation with Anieca's soccer coach, however he denied that this was a fight but only a verbal disagreement because the coach had a lisp and was dressed a certain way so Mr. Lloyd recalls that he may have called him a "fag". He acknowledged another incident in 2007 where someone from a "government housing shelter" had alleged that he spit in his face, as well as some incidents with a particular neighbour who was harassing Mr. Lloyd. Mr. Lloyd stated that it was he who called the police on those occasions.

115Mr. Lloyd has complied with the recommendations of Ms Barclay that he take anger management counselling. Since her report and recommendations, he has successfully completed a course of individual counselling for anger management, confirmation of which was provided at trial.

Current Financial Circumstances

116Mr. Lloyd acknowledged that as an insurance adjuster his traditional base pay has been generally $75,000 and that the commission he earns is significantly more than his base pay. He further conceded that he was able to make at least $200,000 in commissions for a number of years. He acknowledged that he was earning significantly more in commissions than in base pay in 2009, 2010 and 2011.

117He acknowledged that he was to produce his income tax returns to Ms. Scott pursuant to the separation agreement. He testified that he did provide those returns and that the first adjustment to the child support was made by the parties in 2010 pursuant to the amended agreement that they signed in May of 2010. He testified that both Ms. Scott and he signed the agreement which was witnessed by a neighbour and friend. He acknowledged that when Ms. Scott filed the agreement with the Family Responsibility Office in November of 2011, which was enforced at $1700 per month, he did not supplement the support with the $200 that the parties had agreed to in their May 2010 amended agreement.

118He was not able to provide information regarding the commissions that he will earn at his current position and testified that would be determined by the end of 2014. He admitted that he purchased a new Harley Davidson motorcycle in 2008 for approximately $20,000 but has now transferred that motorcycle to his wife's name. He admitted that the home that he and his wife purchased in 2010 has also been placed in his current wife's name and that the new vehicle that he bought in 2013 was also placed in his wife's name. He denied that he was trying to make himself "judgment proof". He claimed that all of the vehicles including the motorcycle that he drives are placed in his wife's name because she had better insurance than him given his driving record and convictions for careless driving and speeding offences.

Ms Andrea Barclay

119Ms Andrea Barclay was appointed by the parties on consent to conduct an assessment of the issues of custody and access. She testified that she was unclear at the beginning about her role because the father had contacted her for what appeared to be a therapeutic reunification process, in the context of parental alienation. She later understood from counsel that her role was to conduct a 'section 30' custody and access assessment. Ms Barclay testified that she made it clear to the father that the purpose of her assessment was not solely to establish parental alienation, but to assess "the entire picture" and to make recommendations regarding the best interests of the child. If alienation presented itself as a factor during the course of her assessment and investigation, then she would address it in her findings and recommendations.

120Ms Barclay is an experienced custody and access assessor and has been previously qualified as an expert witness in custody and access assessments. Ms Barclay is also a clinical investigator on the social work panel for the Office of the Children's Lawyer.

121Ms Barclay has significant experience in conducting custody and access assessments where the issue of parental alienation has been raised. She has undergone specialised training in this area with Dr. Barbra Fidler, a well-known expert in the field of parental alienation and high conflict families. Ms Barclay also conducts therapeutic counselling and "therapeutic reintegration" in cases of parent-child estrangement.

122Although Ms Barclay described the estrangement between Anieca and her father in this case as "severe" in that there was virtually no contact between then for at least three years at the time of her assessment, she did not find this to be a case of deliberate parental alienation, or that the estrangement was solely or deliberately caused by Ms Scott's conduct. She described this as a "mixed" case, in which both parties' conduct led to the breakdown in the relationship between father and daughter.

123Ms Barclay's report was entered as evidence at trial, subject to cross-examination. Ms Barclay made the following findings and conclusion at pages 19 to 21 of her Report:

Discussion:

Anieca Lloyd is an intelligent, active and healthy fifteen year old girl. It is evident that both Mr. Lloyd and Ms. Scott have engaged in angry, hostile, confrontational and antagonistic communication with one another. They each blame the other for the conflict, and have trouble identifying their own role in the issues presented. There appears to be a great deal of conflict over finances, as well as over the issues of access. In the middle of this long standing high conflict situation is a young 15 year old girl, who is loved by both her parents.

It appears that Mr. Lloyd has a history of issues with anger management. This is validated by his assault charge, conflicts with family, friends, neighbours, soccer coaches, as well as the experience of Anieca and Ms. Scott. This behaviour has not been reported evidence by his current wife, or her family. Mr. Lloyd minimizes his aggressive behaviour and the impact of his behaviour has on other people, by blaming others and justifying his actions. It is apparent that Mr. Lloyd feels hurt and frustrated with the interruption of his relationship with Anieca. At times he expressed those emotions inappropriately to Anieca, as evidenced in some of his letters to her, where he is angry and confrontational. It is recommended that he has counselling for anger management and to support and guide him in rebuilding his relationship with his daughter.

There does appear to be some evidence that Ms. Scott has interfered in the relationship between Mr. Lloyd and Anieca. As Anieca's primary caregiver, Ms. Scott has historically determined and limed the access to Mr. Lloyd. Ms. Scott did not appear to have followed the access arrangement as agreed to and signed by the parties in the Separation Agreement dated October 10, 2007. While Ms. Scott reported encouraged the access at times, there are concerns that she has interfered in the relationship by denying opportunities for communication with Mr. Lloyd and Anieca, allowing Anieca to determine access to her father at a young age, and by seemingly not providing some of the letters, and cards sent to Anieca by her father. Ms. Scott is to be aware of her own anxiety with respect to Mr. Lloyd and her anxiety with respect to the access. This anxiety is very evident and has impacted Anieca. In addition, Anieca has repeated some of Ms. Scott's concerns because she had overheard or was told these comments. This should not be occurring at any time. It is recommend Ms. Scott attend counselling to address her anxiety, and guide her in support Anieca in her relationship with her father.

Anieca appears to be under the impress that there were little to no attempts by her father, or other family members to connect with her. It was evident in letters sent to Anieca, by Mr. Lloyd that Anieca and her mother were provided with the information regarding Mrs. Lloyd's (paternal grandmother) cancer in early 2013. It is concerning that Ms. Scott did not support Anieca in reaching out to her grandmother until her death, failing to provide her with the opportunity to place closure and reconnection on that relationship. Mr. Lloyd's journal records his many and ongoing attempts to remain connected with Anieca.

Anieca has been vehement in her rejection of her father, and has detailed knowledge of the conflict between the parties and court information. It is concerning that Anieca holds her father entirely responsible for the conflict. Anieca nor her mother are able to identify any positive qualities of Mr. Lloyd. Anieca presented as negative and intolerant of any flaws of her father. Anieca does not demonstrate any guilt pertaining to her rejection of her father or to the hurt he expresses. This may suggest that Anieca wants to please her mother who feels negative toward Mr. Lloyd or that there is interference by mother by not providing Anieca with permission to have an enjoyable and positive relationship with her father. The result is tremendous stress to Anieca, and this cannot continue.

Ms. Scott described Anieca as having some stress and anxiety-related symptoms of stomach aches, drawing pictures depicting fear of her father, and stated that Anieca has a fear of men. Despite this Ms. Scott has made no attempts to engage Anieca in counselling or support services to assist her in developing some coping strategies. It is concerning that Ms. Scott express that she is not open to counselling as she feels it will not accomplish anything. It is highly recommended that Anieca receive counselling to help her understand the position she has been placed in, and assist her in developing the strength and critical thinking skills required in a high conflict parenting situation.

At times, Anieca presented as conflicted in her feelings toward her father, despite her adamancy that she not have contact with him. She expressed anger and hurt that she did not receive a birthday card or gift, and for making limited efforts to maintain the relationship. However she contradicts this thinking by stating that she did not want a relationship with him anyway. Further, while not wanting to engage in a relationship with her father at the time, she is hurt that she was not included in the wedding and expresses some curiosity regarding her half-brother. Anieca has genuine fears that will require therapeutic intervention to help her process in order for her to begin to even attempt to rebuild a relationship with her father. As a result, it is recommended that she had therapeutic access with her father in order to rebuild their relationship and ensure parenting support to both Mr. Lloyd, and Ms. Scott throughout the process.

It is evident that Ms. Scott has been the primary caregiver for Anieca since the separation in 2007, and they have a strong bond. Anieca has community and family support including peers and extended family in the Acton community and surrounding areas. She appears to be academically and socially stable. It is therefore in the best interests of Anieca that her mother maintains sole custody, and Anieca remain in her home community of Acton.

This assessor cannot impress upon the parties enough that it is in the best interests of Anieca in her current and long term development that the parties no longer engage in their bitter conflict and provide Anieca an opportunity to heal her relationship with her father through therapeutic intervention.

This report should be shared with the involved therapists.

124Ms. Barclay concluded that although she found interference by Ms. Scott in the relationship between Anieca and Mr. Lloyd, largely due to Ms. Scott's own anxiety and emotional issues, she found that a lot of Mr. Lloyd's communication to Anieca, both in letters and otherwise, was "incredibly inappropriate". Ms. Barclay described Mr. Lloyd's letters to Anieca as harsh and hostile and particularly for a teenager, the letters were damaging. In her opinion, his responses to Anieca's letters to him contributed to Anieca's choices to restrict contact. Ms Barclay found that Mr. Lloyd was unaware of his anger and how his behaviour, given his large and somewhat intimidating presence, impacted others. She tried to explain to Mr. Lloyd during her testimony that Anieca was hurt and angry by her father and that his angry and attacking letters in response to Anieca's hurt only further damaged their relationship.

125Mr. Lloyd asked Ms Barclay if it appeared, based on what she saw, whether he was doing "everything in his power" to contact his daughter. Ms Barclay testified that although she believed that Mr. Lloyd was definitely making attempts to maintain a relationship, there were time periods of no contact that she was unclear about. She described a period of time that both parties and Anieca, spoke to in which there appeared to be a "disconnect" by Mr. Lloyd. She testified that this occurred after the incident in January of 2009 when Mr. Lloyd brought Anieca back early after a visit because he was upset. According to Ms Barclay, Anieca reported that "she did not really mean it" when she said to her father that she wanted him to go away. Ms Barclay could not conclusively determine the reason for these periods of no contact. Ms Barclay also testified that Anieca did not feel that Mr. Lloyd had made reasonable attempts to contact her.

126Mr. Lloyd asked Ms Barclay that would it not seem the "sheer volume" of the letters he sent compared with the responses was sufficient to conclude that Anieca was not receiving his letters and cards or aware that he was trying to contact her. Again, Ms Barclay testified candidly that she could not ascertain the truth regarding this issue. Both parties reported differences and it was difficult to ascertain the reliability of Anieca's reporting given that she had clearly responded to a number of Mr. Lloyd's letters. She could not determine whether there was interference or whether Anieca decided not to respond, given her anger and hurt and the content of some of the letters.

127Ms. Barclay also found that Anieca and her mother were closely aligned. She testified that often when parents are really closely aligned with their children their own fears and anxieties in the relationship with the child's other parent are projected onto the child. She found this to be the case here. It was also apparent to Ms Barclay that that Anieca overheard many of Ms. Scott's concerns about Mr Lloyd and the litigation or she was told these concerns directly by Ms Scott which was highly inappropriate. Ms. Barclay found that Anieca's vocabulary and the similarities in her phraseology during that interview were in some instances strikingly similar as between mother and daughter.

128Ms Barclay testified that despite Anieca's "vehement" statements to her that she wanted no contact with her father, it was her clear clinical impression that Anieca was sending her mixed messages and was really quite conflicted about her relationship with her father. For example, during her interviews with Anieca, she would say that she wanted nothing to do with him, and yet also say that he was really hurt that he had not contacted her and very hurt that he had not informed her that he was getting married her and that she was not a part of this. She also reported that Anieca was very hurt that she had not met her brother David. As well, in reading Anieca's letters to her father, she would say on the one hand that she wanted nothing to do with him and yet tell him that she had done well on her report card.

129Ms Barclay testified that Anieca was very hurt that she was not able to speak to her grandmother before she died. Anieca blamed her father for this. Anieca felt that Mr. Lloyd had turned the whole side of his family against her. According to Ms Barclay, this could have a significant psychological impact on Anieca in later life given the loss that she suffered and the lack of resolution in not being able to say good-bye to her grandmother before she died.

130Ms Barclay testified that, notwithstanding Anieca's age, there was still a window of opportunity to repair the relationship with her father. She recommended that this should be pursued, particularly given Anieca's mixed messages to her. She testified that a lot of children who are estranged from their parents "actually want somebody, a neutral person, to step in and take it off their shoulders", such as a neutral third party therapist who can supervise the access to start, to remove any element of fear for the child.

131Ms. Barclay testified that Ms. Scott identified very clearly to her that she did not support the idea of counselling for either herself or for Anieca despite identifying a number of concerns with Anieca including the fact that Anieca was "petrified" of men because of Mr. Lloyd's anger, according to Ms. Scott. Ms. Scott also reported to Ms. Barclay that Anieca had psychosomatic symptoms related to anxiety as diagnosed by her doctor. According to Ms. Barclay, Anieca also spoke about those symptoms, such as stomach related issues caused by anxiety. Despite those identified concerns with Anieca, Ms. Scott did not seek any counselling for Anieca and Ms. Barclay expressed significant concerns about this.

132Notwithstanding Anieca's success in many aspects of her life, Ms. Barclay was very concerned that the lack of relationship with Mr. Lloyd was not healthy for her. This is why she recommended therapeutic access that would include therapeutic reunification counselling with both parents and Anieca. Ms. Barclay testified that she hoped that the reunification counselling would include Ms. Scott so that she could develop an understanding of her role in Anieca's estrangement from her father.

133Ms. Barclay strongly opined that both parties needed counselling, Ms. Scott for her obvious anxiety and emotional issues and Mr. Lloyd for his anger and emotional regulation, and to learn how to respond with support to Anieca, even in the face of her anger. Ms. Barclay testified that in her opinion Mr. Lloyd minimized his aggressive behaviour and the impact his behaviour had on other people, by blaming others and justifying his actions. When Ms. Barclay questioned Mr. Lloyd about some incidents such as his interaction with the soccer coach for Anieca or the road rage incident or the other incidents with Anieca and with Ms. Scott, there was an element of justification for his behaviour. According to Ms. Barclay, Mr. Lloyd did not understand or have an awareness of how aggressive and intimidating he can be, given his size and behaviour.

Ms Grace Bender

134Ms Bender is Mr. Lloyd's mother-in-law. She has known him since 2009. She described him as a good husband and father who is an important part of her family. Ms. Bender testified that Mr. Lloyd has a healthy relationship with her daughter and that he has a loving relationship with his son David.

135Ms Bender has only met Anieca once at the funeral of Mr. Lloyd's mother. She does not know Ms Scott. She observed Anieca to be constantly looking out of the "corner of her eye" for her mother and to be under the control of her mother at the funeral. According to Ms Bender, as soon as her mother wished to leave, she signalled to Anieca, who left with her mother immediately even though she was in mid- conversation with her father and other family members. She testified that Anieca left without saying goodbye.

136Ms Bender stated that that she has never seen Mr. Lloyd angry. She has seen him "extremely frustrated" when he has attempted to follow the separation agreement between himself and Ms. Scott and was denied contact with Anieca. She did not agree that his frustration was anger, but rather led to bitterness as a result of the situation. She was not aware of any incidents of anger. She acknowledged that she had heard about an altercation at a soccer game from her daughter, who was present, but could she not recall what had occurred.

Mr. Randy Stephenson

137Mr. Stevenson is a vice president with the Toronto Dominion Bank. Mr. Stevenson testified that he has known Mr. Lloyd since he was 11 years old and they have been friends for over thirty years.

138Mr. Stevenson described Mr. Lloyd as being very "even-keeled", with a good personality and a good sense of humour. Mr. Stevenson and his wife socialized with Mr. Lloyd and Ms. Scott when they were together. Mr. Stevenson testified that he never saw Mr. Lloyd angry with Anieca either before or after separation. He saw nothing inappropriate in Mr. Lloyd's relationship with Anieca. He has not seen Anieca for a number of years now.

139Mr. Stevenson did observe the tension between Mr. Lloyd and Ms Scott while they were in a relationship. He stated that it was obvious that the two were not getting along and he sensed anxiety, particularly from Ms. Scott. He noticed that Anieca was clearly picking up on this tension and anxiety.

140Mr. Stevenson believed that the reason Anieca does not want to see Mr. Lloyd is because of Ms. Scott's influence. He believes, based on what Mr. Lloyd has told him that he has tried very hard to see Anieca and that he has been denied contact by Ms. Scott. Mr. Stevenson described Anieca's post-separation relationship with Mr. Lloyd as being "very withdrawn". He observed that Anieca no longer had the connection that she had before with Mr. Lloyd and he sensed animosity from her towards Mr. Lloyd.

141Mr. Stevenson did not think that Mr. Lloyd had an anger management problem and testified that he always seems to be calm, cool, and collected. He acknowledged in cross-examination that there was a period of time, more than fifteen years ago, where he was concerned that Mr. Lloyd may be using drugs and alcohol, however he has not seen Mr. Lloyd use any drugs or alcohol for more than fifteen years.

142Mr. Stevenson testified that he has never witnessed Mr. Lloyd in a bar fight and he denied going to bars with him and fighting with other patrons there when they were younger. He denied Ms. Scott's testimony on this issue. He described Ms. Scott's behaviour as "delusional, disgusting and ridiculous", in denying contact between Anieca and her father, based on his understanding from Mr. Lloyd.

Credibility Findings

143Upon carefully reviewing all of the evidence and considering the presentation of Ms Scott and Mr. Lloyd, I find that there are concerns regarding the credibility and reliability of both parties' evidence and perception of events. As a result, I have not accepted either party's evidence in its entirety, nor have I preferred the evidence of one party over the other. Rather, I have approached the evidence of each of them with significant caution.

144Both parties had dramatically different versions of events and views about why Anieca has become estranged from her father. Neither party accepted any responsibility for the breakdown of Anieca's relationship with her father, or acknowledged their role in the estrangement between Anieca and her father. Both were completely entrenched in their respective positions and had absolutely no insight into how both parties' conduct and behaviour contributed to the breakdown of the relationship.

145During the trial, I observed Ms Scott to present in an emotionally flat and nervous manner, speaking in a very low voice. At other times, she appeared to be very anxious and distraught. During Ms Barclay's evidence, Ms Scott was visibly upset, as she clearly did not agree with some of Ms Barclay's observations and findings about her contribution to Anieca's estrangement. Mr. Lloyd is a much more forceful personality, and at times, he became belligerent and angry during cross-examination, talking over counsel and interrupting frequently, or refusing to answer some of the questions. Mr. Lloyd also became very emotional as well, particularly when he described his grief and sorrow regarding the loss of his relationship with Anieca.

146In weighing the credibility of the parties on various important issues, I have given significant weight to the evidence of Ms Barclay, the custody and access assessor. I found her to be a good witness and highly credible. Although I found Randy Stephenson to be a credible witness, he was closely aligned with the father, having had no contact with Anieca and the mother for a number of years since the separation. I was mindful of this when considering his evidence and as such, I put little weight on his evidence regarding the reasons for the estrangement between Anieca and her father, although I accepted his observations of the obvious tension between the parties when they socialised together a number of years ago. I also found Ms Grace Bender to be a credible witness however, again, she was closely aligned with Mr. Lloyd. Ms Bender's understanding of the situation was based almost entirely on what was reported to her by Mr. Lloyd, and she has only met Anieca and Ms Scott on one occasion at the funeral of Anieca's grandmother. She had almost no independent information regarding the custody and access issues, so I weighed her evidence accordingly.

147Mr. Lloyd's wife, Laurel Bender, was notably absent. She was on Mr. Lloyd's witness list and scheduled to testify, but did not. Her evidence would have been helpful as she was present during the incident between Mr. Lloyd and Anieca's soccer coach and she was present with Mr. Lloyd during the "road rage" incident which led to the criminal charges against Mr. Lloyd.

6. The Law and Analysis

6.1 Custody and Access

148Both parties seek to change the custody and access provisions of the agreement. Sub-section 35(2) of the Family Law Act gives the Ontario Court of Justice the jurisdiction to interpret, enforce or vary a domestic agreement, which is what both parties are seeking to change in this case. The court is expected to grant considerable deference to separation agreements. See: Miglin v. Miglin, 2003 SCC 24. However, subsection 56(1) of the FLA gives the court the right to disregard any custody/access term in a domestic contract if it feels it is not in the best interests of the child. The governing determination is always the child's best interests.

149In deciding what custody and access arrangements are in Anieca's best interests, I must consider the factors set out in subsections 24(2), (3), and (4) of Ontario's Children's Law Reform Act, which sets out as follows:

(2) Best interests of child. -- 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 care and upbringing of the child;

(b) the views and preferences of the child, where such views and preferences 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) any plans proposed for the care and upbringing of the child;

(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) he relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) Past conduct. -- 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.

(4) Violence and abuse. -- 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.

150Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents. See: Gordon v. Goertz, 1996 CanLII 191 (SCC).

151It is normally in the interests of children to continue and to encourage their relationships with both parents following the separation of their parents. The ultimate goal is to establish, maintain and promote relationships which are of significance and support for a child. See: Young v. Young, 1993 CanLII 34 (SCC). Children generally benefit from contact with both parents. See: Gordon v. Goertz, supra, at paragraph 24.

152The best interests of the child have been held to be met by the child having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. See Pastway v. Pastway (1999) 49 RFL (4th) 375 (SCJ).

153In applying these principles to the case before me, I find that it is in Anieca's best interests to remain in the sole custody of her mother and to have specified and structured access to her father. The father's position that his estrangement from Anieca is solely due to the "sick campaign" of deliberate parental alienation waged by the mother is not borne out by the evidence, which I have very carefully reviewed. The father is significantly responsible for his damaged relationship with Anieca for the following reasons.

154I do not find that the father did "everything in his power" to see Anieca after the separation and that all of his efforts were thwarted by the mother. It is not disputed that the father had minimal contact with Anieca in 2008; he saw Anieca only four times in 2009, even less in 2010 and had no contact after December of 2010. Yet he never brought a motion for access. He never sought specified access in the parties' separation agreement. The father only came forward in April of 2012, almost three years after having virtually no contact with Anieca, when he was served with the mother's motion for retroactive support.

155The father acknowledged that he had only spent approximately four hours with Anieca in 2009. The father's explanation that he was advised by his lawyer that it would be a waste of time to seek access to Anieca in 2009 is not credible. It is very likely that a court would have ordered specified access between Anieca and her father had the father brought this matter to court's attention in 2009. Anieca had only just turned 11 years old. It is notable that in the father's response to the motion to change, he still did not seek specified access, but rather a termination of the mother's spousal support.

156The father's perception that the family videotapes demonstrate that his relationship with Anieca changed drastically after the separation as a result of the mother's influence is inaccurate. As noted earlier, except for a few excerpts of laughing and giggling, the majority of the video recordings introduced by the father demonstrated that the relationship between Anieca and her father was strained and distant in late 2006 and early 2007. In most of the excerpts that the father played at trial, the court saw a reserved and withdrawn child who did not appear at all happy that her father was videotaping her during what appeared to be staged and self-serving situations. Mr. Lloyd also appeared disengaged and more interested in videotaping then interacting with his daughter.

157The father's view that the "sheer volume" of letters that he sent Anieca demonstrate that the mother was intercepting these letters is not borne out by the evidence.

158Mr Lloyd produced document briefs with copies of the letters and cards that he had sent between 2009 and 2013. These were exhibits at trial. The court reviewed copies of the letters and cards produced by Mr. Lloyd in his document brief. A careful review of the document briefs demonstrate that between 2009 and 2013, Mr. Lloyd sent a total of twenty-five letters to Anieca. Mr. Lloyd sent fifteen of the twenty-five letters in 2012 and 2013 after this litigation commenced. Mr. Lloyd sent these letters to Anieca through Ms Scott's counsel and her school principal to guarantee receipt. Regarding the remaining ten letters, Mr. Lloyd sent eight letters in 2011 and two letters in 2010, all sent to Anieca's home. No letters were produced for 2009. Anieca sent five letters in response: four responding letters in 2011and one responding letter in 2013.

159During the same five year period, Mr. Lloyd sent a total of ten cards to Anieca: three cards in 2009, three cards in 2010, two cards in 2011 and two cards in 2012. These cards were generally sent on her birthday and at Christmas. It is notable that only two cards were sent during the five month period in 2009 when Mr. Lloyd had no contact with Anieca after he brought her home early from an access visit because he was upset with her for being disrespectful.

160The court also reviewed a number of the letters in which Anieca responds to her father, written in her own handwriting, clearly indicating that she received at least some of the letters. In all of the letters, Anieca refers to Mr. Lloyd as "Dad". In her letters, Anieca's appears to be upset and hurt by her father's conduct, for example, not telling her that he had got married, nor inviting her to his wedding, but at the same time seeking his approval and affirmation. For example, in one letter dated July 12, (no year), in which she expresses anger at her father for blaming everyone else and not accepting any responsibility for why she is angry with him, she ends with the following postscript :"P.S. My report card is fine. As always."

161In another one of the letters that Anieca wrote to her father, dated November 4, 2011, in which she expressed hurt and anger with her father for a number of things, including not informing her that her grandmother was ill, Anieca writes the following to her father:

"I thought that you said that you wanted nothing to do with me and that I would never hear from you again because you weren't going to try if I didn't want to go. What happened to that?"

162Some of Mr. Lloyd's angry letters to Anieca, in which he minimized her anger and hurt for his behavior and essentially blamed her and her mother for everything, were highly inappropriate. These letters were very hostile and attacking. The father did not seem to understand that sending these letters to Anieca when she was only 13 years old would certainly not help the situation. It was very concerning to the court that even during this trial Mr. Lloyd had no insight into how wrong it was to send these letters and continued to justify his actions. Even if Mr. Lloyd did not believe that his behavior contributed to Anieca's resistance to contact, a parent should always acknowledge their child's hurt and anger and offer them love and support, not further attacks and recriminations, as Mr. Lloyd did, at an age when Anieca was just reaching adolescence, and thus very vulnerable to criticism.

163I find as a fact that Mr Lloyd did not invite Anieca to his wedding or tell her about the wedding until a number of months after it occurred in June of 2010. This was very hurtful to Anieca and contributed to the breakdown in their relationship. It was very concerning to the court that Mr. Lloyd did not apologise to Anieca or validate her feelings of hurt and anger about this. The court reviewed Anieca's letter to her father in July of 2011, in which she writes,

Then once things are bad between us you go on and get married! Married! And to boot you dont even tell me till about 4 months later. 4 month! And you didnt invite me. You can not use the excuse of me not wanting to come. Because thats all it is an excuse. You didnt even ask me…"[sic].

164Mr. Lloyd did not respond to that letter. In reviewing all of Mr. Lloyd's letters to Anieca filed, there is no apology or acknowledgment by Mr. Lloyd of Anieca's hurt. I accept the finding of Ms Barclay that Mr. Lloyd's inability to control his anger or his responses to Anieca when he is angry at her behaviour has contributed to the breakdown of the relationship. However, Mr. Lloyd is to be commended for taking anger management counseling.

165Throughout the trial, it was apparent that Mr. Lloyd lacked insight into his how his own behaviour and conduct led to his estrangement from Anieca. His refusal to accept any responsibility and to describe this as the result of Ms Scott's deliberately "evil" and "monstrous" actions, or as he puts it, as a result of her "sick campaign of hatred" is very concerning.

166Notwithstanding the findings above, I also find that Ms Scott contributed to the breakdown in Mr. Lloyd's relationship with Anieca. I find as a fact that Ms Scott restricted Mr. Lloyd's access after the separation and seemed to be of the view that it should be supervised even though this provision was not in the parties' agreement. Much of Mr. Lloyd's access to Anieca before all contact stopped was in Ms Scott's presence. Given the conflict between the parties and Ms Scott's anxiety, this placed Anieca in a very difficult position.

167I find that Ms Scott did little to encourage the relationship between Anieca and her father, and according to her testimony at trial, completely left the decision to Anieca to see her father when she was as young as ten years old. This is unacceptable. I also find that Ms Scott's obvious anxiety, her over-protectiveness towards Anieca, and her own emotional fragility has led to the restriction of contact and difficulties in the relationship.

168I find that Ms Scott did not shield Aneica from the adult issues and her own anxiety, nor did she understand the impact of this conduct on Anieca and her view of her father, thereby damaging the relationship that Aneica is entitled to have with her father. I find as a fact that Ms Scott has shared far too much of this litigation and her negative views regarding Mr. Lloyd with Anieca, and has certainly engaged in many conversations about court or Mr. Lloyd in Anieca's presence, which has contributed to Anieca's estrangement from her father.

169Ms Scott's conduct and emotional responses appear to be largely driven by her own obvious anxiety, very apparent during this trial, and her over-protectiveness towards and close identification with Anieca, although her hostility to Mr. Lloyd is also a factor. Anieca is certainly very aware of her mother's emotional responses and is obviously closely aligned with her. I share Ms Barclay's view that Ms Scott's anxiety is influencing Anieca. Ms Scott's description of Anieca and Ms Scott's reaction to Mr. Lloyd's attending at Anieca's high school in 2013 to see her, in which Ms Scott described Anieca as "hysterical" and "petrified" is a telling example of this.

170Although she is to be commended for raising a successful and lovely young person, I find that Ms Scott has difficulty separating her own identity from her daughter. Anieca has become closely aligned with her mother and her resistance to contact is related to this alignment.

171The court is also concerned that Ms Scott sees no need for counseling for herself or Anieca, given that she has readily acknowledged that she suffers from anxiety and that Anieca is experiencing anxiety manifested in physical symptoms. Ms Scott's refusal to accept the "legitimacy" of Ms Barclay's recommendations regarding counselling and reunification therapy is evident that she has little insight into the importance of allowing Anieca to heal and to hopefully build a positive and healthy relationship with her father.

172I also find that both parents must take responsibility for Anieca's inability to speak to her grandmother before she died. Although Mr. Lloyd believed that Ms Scott refused to respond and resisted all attempts by him to have Anieca transported to the hospital, he acknowledges in his evidence that he never once asked Ms Scott to do this, nor did he speak or write to her directly about his mother's illness. The six letters that he introduced into evidence, written during a six month period, were all written to Anieca. Three of the letters are relatively lengthy and are quite angry in tone and content and address a variety of different subjects, in addition to the subject of Mr. Lloyd's mother. Two of the letters are in response to letters from Anieca. The first two letters make no mention of the nature of his mother's illness or that she was in the hospital. The last letters are angry and accusatory, blaming Anieca for not visiting her grandmother. Anieca was 13 years old during this time period.

173Mr. Lloyd acknowledged that he never actually called Anieca during this period of time to explain to her the nature or gravity of her grandmother's illness, nor did he contact Ms Scott and inform her of the seriousness of his mother's illness. He also acknowledged that he never called or emailed Ms Scott directly to make arrangements with her for either of them to drive Anieca to the hospital, or to request that Ms Scott arrange a visit between Anieca and her grandmother. Yet he blames Ms Scott entirely for this failure.

174Notwithstanding Mr. Lloyd's failure to contact Ms Scott directly about this situation, either by phone or email, Ms Scott also failed to take any proactive steps on her daughter's behalf. Ms Scott testified that she read all of the letters that Mr. Lloyd sent to Anieca and she received a group email from Mr. Lloyd's father about his mother's cancer diagnosis. If so, then the court does not understand why Ms Scott did not make her own inquiries for Anieca's sake and contact Mr. Lloyd or his father to arrange a visit between Anieca and her grandmother. Neither parent did anything. They left this all on Anieca's thirteen year old shoulders. Both parents behaviour in refusing to make the effort to communicate with each directly regarding these sad events is deeply regrettable.

Conclusion Regarding Custody and Access

175Unfortunately, despite the toxic and dysfunctional relationship between the parents, this court does not have the jurisdiction to order that the parents attend joint counseling together, or that the parents attend individually counseling to address their own issues, or that they jointly attend counseling with Anieca, although obviously desirable. See Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON C.A.).

176The court strongly recommends counseling for Anieca and both parents, together and separately, but the parties need to be motivated and willing. I am particularly concerned that the mother has refused to attend individual counseling or to encourage Anieca to do so, despite the very strong recommendations of Ms Barclay. Given Anieca's close alignment with her mother, the court strongly recommends that the mother encourages therapeutic intervention for Anieca, and to give her permission to participate in this with her father, if necessary.

177Further, the court cannot delegate the determination of access to a family therapist, nor is it appropriate to do so. Ontario (Official Guardian) v. Strobridge, 1994 CanLII 875 (ON CA).

178I can however, order incidents of custody and access, including whether access should be supervised or exercised in the presence of a third party such as a therapist, pursuant to sections 28 and 34 of the Children's Law Reform Act and I will so order. Supervised access is beneficial for children who require gradual reintroduction to a parent. In Miller v. McMaster, 2005 CarswellNS 420 (N.S. S.C.), the court held that "supervised access is not a long-term solution to access problems which usually arise in high conflict custody and access cases where distrust and negative parental allegations abound. Supervised access is appropriate in specific situations, some of which include where a child is being reintroduced into the life of a parent after a significant absence. In doing so, I encourage the therapist to assist in the reunification of the father and daughter relationship during the supervised access visits.

179I have also carefully considered Anieca's views and preferences. In assessing the significance of a child's wishes, the following are relevant in the circumstances of this case: (i) how clear and unambivalent the wishes are; (ii) how informed the expression is; (iii) the age of the child; (iv) the maturity level; (v) the strength of the wish; (vi) the length of time the preference has been expressed for; (vii) practicalities; (viii) the influence of the parent(s) on the expressed wish or preference; (ix) the overall context; and (x) the circumstances of the preferences from the child's point of view: See Decaen v. Decaen, 2013 ONCA 218. The wishes of an older child are only one factor. The judge should not allow the views or comments of the child to be the sole basis of the judgment while disregarding other evidence of what may actually be in the child's best interests.

180Here, despite evidence of Anieca's stated refusal to see her father, there was also evidence of ambivalence and a desire by her for some contact with her father. Ms Barclay's evidence that Anieca is conflicted regarding her relationship with her father and that she sent her clear mixed messages regarding contact was compelling and credible. In reading her letters to her father, I share Ms Barclay's view that Anieca was very conflicted about her feelings for her father and her desire for contact.

181A child's views and preferences, even an older child, are but one factor in the best interest analysis and in my view, should not be determinative in the circumstances of this case, particularly given. In Ms Barclay's opinion, it is clearly in Anieca's best interests to have a relationship with her father. I accept her position that a lot of children who are estranged from their parents in circumstances similar to this simply want a neutral third party to step in and make the decision, thereby lifting it from their shoulders.

182In my view, both of these parents have left this decision on Anieca's shoulders for far too long, putting her in a completely untenable position, given her obvious awareness of their hostility for each other. Leaving access at Anieca's discretion, as the mother wants me to do, will only continue to keep Anieca in this untenable situation.

183Ms Scott needs to permit her daughter to have a relationship with her father, however imperfect, and to refrain from projecting her own obvious anxiety towards Mr. Lloyd onto Anieca. Mr. Lloyd needs to apologise to Anieca, to take responsibility for his very hurtful and angry conduct towards Anieca, and to offer her unconditional love. Both parties need to stop projecting their hostility for each other onto Anieca and to completely avoid all conflict in her presence.

6.2 The Determination of Retroactive Child Support

184The mother seeks a retroactive adjustment of child support to January 1, 2007 in the motion to change. The total amount that she claims is owed is $10,720.08 from January 1, 2007 to December 31, 2011.

185The leading case regarding retroactive child support is the decision of the Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. In that case, the court held that retroactive awards cannot simply be regarded as exceptional orders in exceptional circumstances (at paragraph 5).

186The court in D.B.S. sets out the factors that a court must consider in addressing retroactive claims for child support. There are four factors that the court raised, at paragraphs 94 to 116 of the decision:

1. Is there a reasonable excuse for why support was not sought earlier?
2. The conduct of the payor parent.
3. The circumstances of the child.
4. The hardship on the payor as a result of the retroactive order.

187The court provided further guidance in considering these four factors as follows:

1. Reasonable excuse for the delay in applying for retroactive support

188A delay will generally be unreasonable when the recipient knew higher support payments were warranted but decided not to apply. However, the court should not hesitate to find a reasonable excuse for the delay where the recipient spouse harbored justifiable fears of the payor's reaction, the recipient lacked the financial or emotional means to bring an application or the recipient was given inadequate legal advice (at paragraph 101).

189Caution should be exercised before penalizing a child for a recipient parent's delay in attempting to recover support to which a child is entitled. There may be practical financial and psychological realities inhibiting a recipient parent's ability to pursue the issue of child support (at paragraph 172).

2. The Conduct of the Payor

190The court should take an expansive view of what constitutes blameworthy behavior on the part of the payor. Blameworthy conduct can be characterized as anything that privileges the payor's own interests over the children's right to an appropriate amount of support and includes hiding income and intimidating the recipient. The payor cannot mislead a recipient into believing that the child support obligations are being met when they are not being met. On the other hand, a payor who does not automatically increase support payments is not necessarily engaging in blameworthy conduct (at paragraph 106).

191A reasonably held belief by the payor that he was meeting his obligations is a good indicator that there is no blameworthy conduct. However, the more material the increase in the payor's income, then the less likely the payor will be presumed to believe he was meeting his obligations. (at paragraph 102 to 107).

192Even where a payor parent does nothing active to avoid his obligations, he may still be acting in a blameworthy manner if he consciously chose to ignore such obligations. A parent who knowingly avoids or diminishes his support obligation to his children should not be allowed to profit from such conduct (at paragraph 107).

3. The Circumstances of the Child

193The court must consider both the present and past circumstances of the child. A child who went through hardship due to not being properly supported may be compensated. However, the argument is less convincing when the child has already enjoyed all of the advantages they would have enjoyed if the payor had been properly supporting them. Further, a child currently enjoying a high standard of living may benefit less from a retroactive award than a child currently in need (at paragraph 113).

4. Hardship for the Payor

194In determining whether a retroactive award will cause hardship for the payor, the court needs to consider more than the payor himself, and must also consider his children from a second family, if any. The court should be careful to craft a retroactive award in a way that minimizes hardship.

5. Other Guiding Principles in the D.B.S. decision

195None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.

196Once a court decides to make a retroactive award, it must then determine the amount. There are two elements to this decision: first, the court must decide when the order should be retroactive to and second, the court must decide the amount of support that would adequately quantify the payor's deficient obligations during that time.

197The court should generally make the award retroactive to the date the recipient gave effective notice to the payor that support was being sought or the current amount needs to be renegotiated. Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair. However, once the issue is raised, the recipient must still be responsible in moving the discussion forward. If she does not, legal action should be contemplated (at paragraph 124).

198It will usually be inappropriate to make a support award retroactive to a date more than three years before formal, legal notice was given to the payor, subject to the exception for blameworthy conduct. However, where the payor has engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive date of the award. It will then be open to the court to determine the quantum (at paragraphs 124 and 125).

199The principles set out in the D.B.S. cases regarding retroactive child support apply to section 7 expenses as well. See Selig v. Smith, 2008 NSCA 54. The court in the D.B.S. cases makes no distinction between the table amount of child support and section 7 expenses for child support.

200In considering all of the evidence at trial, I find that the mother is not entitled to a retroactive award for child support retroactive to January 1, 2007, for the years 2007 to 2011. First, the mother offered no evidence or explanation for her delay of five years in seeking retroactive support. Significantly, the parties signed an amended agreement in 2010 which increased the child support going forward to an amount which reflected the father's actual income at the time, or very close to it. The parties agreed to increase the child support in 2010 to $1,900.00 per month and the table amount owing at the time was $1,943.00. The issue of the retroactive adjustment of arrears owing was addressed in the amended agreement and settled.

201The court does not accept the mother's evidence that the father added the handwritten sentence regarding the resolution of pre-2010 arrears to the amended agreement after the mother had already signed it, and without her consent. The amended agreement was witnessed by Ms Scott's neighbour and friend. She was not called by the mother to give evidence on this issue at trial. Further, the mother conceded that she signed a letter for the father on June17, 2010, approximately one month after the amended agreement was signed, in which she confirmed that there are no arrears owing pre-2010. The court does not accept Ms Scott's evidence that she agreed to sign this letter to make things easier with Mr. Lloyd.

202I find that Mr. Lloyd reasonably believed that he was meeting his child support obligation and that he was not engaging in blameworthy conduct. The parties negotiated an increase in the child support in 2010 which reflected the increase in Mr. Lloyd's income. Although Mr. Lloyd's income did increase in 2011, the increase in the monthly child support for 2011 was $197.67, according to the calculations prepared by the mother's counsel. In my view, this is not a significantly material increase. Mr. Lloyd's income declined significantly in 2012.

203Ms Scott did not provide any evidence of Anieca's circumstances during the period that she is claiming retroactive support. There was no evidence advanced that Anieca went through hardship during that period and there was little or no evidence advanced regarding her current circumstances.

204Regarding Mr. Lloyd's circumstances, as indicated, Mr. Lloyd lost his employment in 2012 due to restructuring and has now obtained new employment at a significantly reduced rate. Mr. Lloyd's job loss was not disputed by the mother at trial, although the issue of what commission he will earn in the new position was raised and has yet to be determined. Mr. Lloyd has also remarried, and has a second child and additional expenses.

205In balancing all of the D.B.S. factors, the retroactive child support for 2007 to 2011 is therefore fixed at nil.

206However, for 2014, the ongoing child support owing by the father should be adjusted to $982.00 per month, based on the 2013 Notice of Assessment filed by him, which states an income of $113,000.00. Therefore, for 2014, the child support arrears owing from January 1, 2014, to October 31, 2014, is $2,280.00. When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination, particularly in this case, given Mr. Lloyd's evidence that a significant portion of his income is commission based. See Vanos v. Vanos, 2010 ONCA 876. However, once Mr. Lloyd's actual income for 2014 is determined after the exchange of annual financial disclosure, there should be adjustment in 2015 and so forth

6.3 Termination of Spousal Support and Rescission of Spousal Support Arrears

207Mr. Lloyd relies on the decision of Bruni v. Bruni, 2010 ONSC 6568 to support his position that the mother's parental alienating conduct constitutes a gross repudiation of the parties' separation agreement or domestic contract and that the appropriate remedy in the circumstances is to terminate the spousal support provisions of their separation agreement. However the legal and factual issues before Justice Quinn in Bruni are significantly different from those before me.

208In Bruni, Justice Quinn considered whether the post-separation parental alienation conduct of the mother was a relevant consideration in determining the mother's claim for spousal support. In that case, the parties' separation agreement provided that the mother had the "sole discretion to commence an application for spousal support" on or before a specific date as spousal support had not yet been determined in the agreement, save and except for the nominal sum of $1 annually, presumably to keep the mother's claim for spousal support open.

209The mother did bring a claim for spousal support which was determined at the trial before Justice Quinn. In considering that claim, Justice Quinn was required to determine the issue of both entitlement and quantum, having regard to section 30 and 33 of the Family Law Act and the Spousal Support Advisory Guidelines. Justice Quinn found that notwithstanding the Spousal Support Advisory Guidelines, sub-section 33(10) of the Family Law Act gives the discretion to the court to consider spousal conduct in arriving at the amount of support. (See paragraph 203 of the decision). That provision states as follows:

" 33 (10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship."

210Justice Quinn found that sub-section 33(10) does not restrict a course of conduct to pre-separation conduct. The definition of relationship, in his opinion, also includes the relationship of spouses as co-parents. The relationship of parent and child is inextricably linked to that of husband and wife. Accordingly, he considered the post-separation alienation that he found the mother had created between the daughter and the father in determining the amount of spousal support to which the mother was entitled (see paragraph 208 of the decision). Justice Quinn found that an effective method of expressing the court's condemnation of the mother's parental alienation is by reducing the spousal support provided to her.

211The facts in Bruni are also significantly different and can be distinguished. Justice Quinn found that the parental alienation in Bruni reflected a deliberate, evil and systematic intent by the mother to destroy the relationship between the father and daughter and that the conduct was shocking, amounting to "a hideous repudiation of the relationship between the spouses as co-parents of the daughter". Accordingly, he found that the conduct in that case satisfied the requirements of sub-section 33(10) and that it was one of the rare cases that met the test of unconscionability. He therefore reduced the spousal support to which the mother would otherwise be entitled to $1.00 monthly.

212In the case before me, sub-section 33(10) is not applicable because the parties have already determined entitlement, quantum and duration of spousal support in a binding domestic contract, prepared with independent legal advice. The provisions of spousal support in the separation agreement are non-reviewable and non-variable.

213The proper approach in this case is to determine whether the spousal support provisions can be set aside under section 56(4) or section 33(4) of the Ontario Family Law Act, R.S.O. 1990, c. F-3, as amended, ("the FLA"). The court's power to set aside a provision in a separation agreement derives from those subsections.

214Sub-section 56(4)(c) codifies the common law grounds regarding unconscionable agreements under contract law and sub-section 33(4) of the FLA provides as follows:

(4) Setting aside domestic contract. — The court may set aside a provision for support or a waiver of the right to support in a domestic contract or paternity agreement and may determine and order support in an application under subsection (1) although the contract or agreement contains an express provision excluding the application of this section,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

215In her decision Barton v. Sauvé, 2010 ONSC 1072, Justice Jennifer A. Blishen of the Ontario Superior Court of Justice explains how subsections 33(4) and 56(4) of the Family Law Act operate together. At paragraph [74] of her decision, she relies upon the Ontario Court of Appeal's decision in Scheel v. Henkelman, 2001 CanLII 24133, which states as follows [emphasis added]:

The use of the phrase "results in" in s. 33(4)(a) means that the subsection is not directed to unconscionable agreements, but to unconscionable results . . . An agreement which was fair and reasonable when it was signed, may, through circumstances that occur in the future, result in unconscionable circumstances at the time of a support application: . . . As for an unconscionable agreement, it may be set aside under s. 56(4) of the FLA , which is a codification of the general law of contract applicable to unconscionable agreements.

216The onus is on Mr. Lloyd to persuade the court that the spousal support provisions in the parties' agreement are now unconscionable and should be set aside to remedy the mother's alleged breaches of the custody and access provisions of the agreement as a result of deliberate parental alienation. In Scheel v. Henkleman, the Ontario Court of Appeal discusses the definition of the word "unconscionable" as follows at paragraph 19:

The word "unconscionable" is defined in the Canadian Law Dictionary as "that which is contrary to the conscience of the Court". It is defined in the Webster's New Collegiate Dictionary as shockingly unfair or unjust. Whether "unconscionable" is used in a legal or non-legal sense, it can best be described as "something which is shocking, oppressive, not in keeping with a caring society".

217As a starting point, courts are expected to grant considerable deference to separation agreements. Courts have recognized that it is desirable that separating spouses settle their affairs, when possible, through the negotiation of separation agreements and that such settlements will only be encouraged if, as a general rule, they are upheld by the courts. It is important for parties to an agreement to be able to rely upon it as final and binding. See Miglin v. Miglin, 2003 SCC 24; Hartshorne v. Hartshorne, 2004 SCC 22 and Rick v. Brandsema, 2009 SCC 10.

218This case does not meet the test of unconscionability defined in the case law, nor is it appropriate to set aside the spousal support provisions in the agreement. I agree with Mr. Lloyd that Anieca's estrangement from her father is very serious, given that the lack of regular contact has now continued for almost four years. However, for the reasons stated earlier, I do not find that the estrangement between Anieca and her father is a result of deliberate and calculated parental alienation by Ms Scott, but is a result of both parents' conduct and behaviour. It is far too easy for Mr. Lloyd to blame Ms Scott for "alienating" him from Anieca and labelling this as a case of "parental alienation" without accepting any responsibility for his role in contributing to his daughter resistance to contact with him.

219I decline to reduce the arrears of spousal support owing for these reasons. Mr. Lloyd knew that he had a legal and contractually binding obligation to pay spousal support until 2019, pursuant to the parties' separation agreement, negotiated between the parties. The parties agreed that the spousal support was non-variable and final. Mr. Lloyd chose to unilaterally stop paying this amount of spousal support based on his view that this was an appropriate remedy for what he viewed as parental alienating conduct. I did not find deliberate parental alienating conduct in this case.

220I have calculated the total spousal support arrears owing at $36, 678.00. I see no reason to exercise my discretion to reduce the arrears of spousal support owing, based on Mr. Scott's decision and circumstances.

221In conclusion, I sincerely hope that both parents take these reasons to heart. Notwithstanding the concerns that I have raised with both, they love Anieca very much. Anieca deserves the opportunity to have a loving relationship with both of her parents.

Final Order

222For the reasons above, I make the following final order:

1. The mother shall have sole custody of the child, Anieca Lloyd, born, February 12, 1998.

2. The father shall have access to the child as follows:

   a. Supervised access in the presence of a family reunification therapist, preferably Ms Andrea Barclay, for six separate sessions for a minimum of one hour for each session, this to begin no later than 30 days from the date of this order. The Reasons for this Judgment and the section 30 Report shall be shared with the therapist.

   b. Thereafter, the father shall have unsupervised access to Anieca on Saturday or Sunday from noon to 6:00 p.m. on every third weekend on four consecutive occasions.

   c. Thereafter, unsupervised access on either a Saturday or Sunday on alternate weekends from noon to 6:00 p.m.;

   d. on either the morning or afternoon of Christmas Eve or Christmas Day, unsupervised access for a minimum of four hours commencing December 2014;

   e. telephone access on Anieca's birthday and access for a minimum of four hours on either the Saturday or Sunday of the weekend before or the child's birthday; and

   f. Anieca is permitted to call the father at any time that she wishes; the father can telephone Anieca each Wednesday between 8:00 p.m. to 8:30 p.m. or any other day or time agreed upon in writing by the parties. The calls shall be private.

   g. Any other access that the parties and Anieca may agree upon.

3. The cost of the therapist for the first six visits set out in paragraph 2.a above shall be paid by the parties proportionally. The father shall pay 70 percent of the cost and the mother shall pay 30 percent of the cost.

4. The father shall have full access to all medical, dental, educational information pertaining to the child, and will obtain this information directly himself through school and medical professionals. The mother shall sign any appropriate authorizations to allow the father to do this.

5. In the event of a serious illness, accident or other misfortune involving the child, the mother shall immediately and promptly notify the father.

6. Neither parent shall make any derogatory comment about the other or their partners in the presence of the child, and shall ensure other friends, partners or other family members follow this requirement. The parents shall ensure that no verbal or physical aggression shall occur in the presence of the child at any time.

7. The spousal support terms of the parties' separation agreement shall continue in full force and effect and commencing November 1, 2014, the father shall pay spousal support to the mother in the amount of $1,098.90 per month, subject to any further cost of living increase, as calculated by the Family Responsibility Office.

8. The spousal support arrears currently owing are fixed at $36,678.00 as of November 1st, 2014, less any payments made to the Family Responsibility Office towards spousal support in 2014. The arrears are due forthwith, to be payable no later than thirty days from the date of this Order. Alternatively, the spousal support arrears are payable at a rate of $500.00 per month, in addition to the ongoing spousal support, commencing December 1, 2014 until all arrears are paid in full.

9. Commencing January 1, 2014, the father shall pay child support to the mother in the amount of $982.00 per month, on the first day of each month thereafter. This is based on the table amount for one child pursuant to the Child Support Guidelines for Ontario, based on the father's 2013 income, determined to be $113,000.00 per annum.

10. The child support arrears are therefore fixed at $2,280.00, calculated by adjusting the amount of child support owed for 2014, based on the father's 2013 notice of assessment. There is no further retroactive child support owing. This amount shall be payable no later than 30 days from the date of this order.

11. The parties shall exchange copies of their income tax returns and notices of assessment each year by June 30th, starting June 30, 2015, pursuant to sections 21 and 25 of the Child Support Guidelines. The parents shall adjust child support accordingly, retroactive to January 1st of that year. For example, the child support owed for 2015 shall be based on the father's 2014 notice of assessment, and any arrears owing for 2015 shall be payable within 30 days of the exchange of notices of assessment by the parties, and so forth for each subsequent year.

12. The retroactive section 7 expenses owed by the father are fixed at nil. For any future section 7 expenses:

    a. the mother shall advise the father in writing of the category and the expense;

    b. for any expense claimed by the mother, she shall deliver proof of the expense to the father on a quarterly basis; and

    c. the parents shall share these expenses proportionally, in accordance with their income as determined by their income tax returns, t-4 records, and notices of assessment.

    d. The parents shall also adjust their proportional contribution to section 7 expenses in the same manner as the adjustment of child support set out under paragraph 11 of this order, that is based on the previous year's notices of assessment, exchanged by the parties by June 30th of each year, commencing June 30th, 2015 and adjusted to January 1st of the year;

    e. for future post-secondary education expenses under section 7, the mother and father shall each be responsible for paying the child's post-secondary expenses in proportion to their respective incomes, including tuition, books, and transportation costs, after any RESP payments and the reasonable contribution by the child through part-time or summer employment, scholarships or grants, and student loans, the student loans not to exceed $5,000.00.

    f. The mother shall provide the father each school term with: proof of the child's enrolment in university or college, transcripts, details of student loans if any, tuition, book and transportation expenses and income. The mother is to immediately notify the father and the Family Responsibility Office if the child stops attending school.

    g. A Support Deduction Order shall issue.

223If the either party seeks costs, then they shall serve and file costs submissions, with a bill of costs and offers to settle attached, within 30 days. Any written response to costs submissions shall be served and filed within 20 days.

Released: October 30, 2014

Signed: "Justice Sheilagh O'Connell"

Footnotes

1It should be noted that this case was commenced as a motion to change, which is not the proper procedure to change the custody and access provisions of the separation agreement. Rule 15 (2) of the Family Law Rules applies to motions to change an agreement for support only filed under section 35 of the Family Law Act (FLA). Motions to change should not be used to change custody and access terms in a domestic agreement, even if the agreement is filed with the court. The proper procedure is by way of application. However, the court has some flexibility to hear motions to change custody and access provisions in a domestic agreement pursuant to Rule 15, even if it is not the proper process. If possible, parties should not be put to the time and expense of starting a case over in the proper form. See Linett v. Linett, [2006] O.J. No. 1632 (OCA), where the Court of Appeal held that this was at worst an irregularity and that subrules 1 (6) and (7) of the Family Law Rules gave the court the flexibility to give directions about the process. I therefore did not raise this issue with the parties at the outset of trial and permitted the motion to change to proceed on all of the issues.

2However, since Kaplanis, the recent amendments to Rule 17(8)(b) of the Family Law Rules permit the court to make the following orders at case conferences, settlement conferences or trial management conferences: requiring parties to attend (i) a mandatory information program; (ii) a case conference or settlement conference conducted by a person named under subrule (9); (iii) an intake meeting with a court-affiliated mediation service, or (iv) a program offered through any other available community service or resource. [Emphasis added].