Sawithah Yousufy v. Emal Yousufy and Elizabeth Lorusso, 2019 ONCJ 791

Sawithah Yousufy v. Emal Yousufy and Elizabeth Lorusso

Citation: 2019 ONCJ 791

Court: Ontario Court of Justice

Date: October 31, 2019

File Number: Brampton 397/17

Before: Justice Lise S. Parent

Parties

Applicant: Sawithah Yousufy

Respondents: Emal Yousufy and Elizabeth Lorusso

Counsel

For the Applicant: David H. Nuri

For the Respondents: James Battin

Hearing Dates

April 29, 30; May 1, 7; July 11; August 19, 21, 22, 23, 26, 27, 28, 29, 30, 2019

PROCEEDINGS BEFORE THE COURT

1The Applicant, Ms. Yousufy, and the Respondent, Mr. Yousufy, are the biological parents of two children, A.Y., born […], 2007 and H.Y., born […], 2009.

2The Respondent, Ms. Lorusso, is the common-law partner of Mr. Yousufy and as conceded by all parties, the step-mother to A.Y. and H.Y.

3At the time of the commencement of the trial, A.Y. was eleven years old and H.Y. was seven years old.

4On April 7, 2017, Ms. Yousufy filed an Application seeking an order of sole custody, child support, a restraining order and other relief relating to the issues of custody and access.

5On May 18, 2017, Mr. Yousufy and Ms. Lorusso filed an Answer disputing the requests of Ms. Yousufy and seeking an order granting them custody of the children, child support and other relief relating to the issues of custody and access.

PROCEDURAL BACKGROUND

Commencement of the Trial

6The matter was addressed at the Trial Audit on March 27, 2019. Following discussions during this appearance, the matter was traversed to the April/May 2019 trial sittings.

7On April 3, 2019, counsel was advised by the Assistant Trial Co-ordinator that the matter was called to proceed to trial beginning on April 29, 2019.

8On April 29, 2019, the trial of this matter began as scheduled.

9During the examination of Ms. Yousufy, it became clear that the interpreter assisting her was not translating in the specific dialect of her mother tongue. The result being that Ms. Yousufy was unable to understand the questions being asked.

10On consent, the trial was adjourned to secure the assistance of the appropriate interpretation services for Ms. Yousufy.

11The trial resumed on April 30, 2019 as an appropriate interpreter was secured.

12The trial continued on May 1, 2019.

Mid-Trial Adjournment and "To Be Spoken To" Appearances

13During the cross-examination of Ms. Yousufy, evidentiary issues arose regarding the introduction, for trial purposes, of statements the children had made to various individuals.

14Following discussions and on consent of the parties, the trial was adjourned to continue in August 2019 as these issues needed to be addressed prior to the resumption of the trial and could not be addressed mid-trial.

15The matter was also adjourned, on consent, to (1) May 7, 2019 "to be spoken to" on the issue of counselling pending the resumption of the trial and (2) July 11, 2019 for counsel to address the evidentiary issues, including possible voir dires and other preliminary matters, arising from counsels' review and subsequent instructions on these issues.

16On May 7, 2019, counsel and the parties attended and reported no consent had been achieved on the issue of counselling.

17On July 11, 2019, a discussion occurred in court, in the presence of counsel only on the leading of the evidence relating to statements made by the children Mr. Yousufy and Ms. Lorusso were seeking to introduce at trial.

18Following discussions, a consent was reached between counsel on the following terms:

(a) The children's out of court statements are necessary in this case because of the age of the children and the harmful impact of testifying in court;

(b) The threshold reliability of the children's out of court statements to the Halton Children's Aid Society worker, Ms. Nicole Clarke, are not being questioned or opposed by either party and same is being admitted into evidence, with ultimate admissibility and reliability still in issue, under section 35 of the Evidence Act;

(c) The reliability of the children's out of court statements to the Office of the Children's Lawyer clinician, Ms. Kelly Schweitzer and that appear in the OCL report are not being questioned or opposed by either party and same is being admitted into evidence, with ultimate admissibility and reliability still in issue, as a fact finding report of the court under section 112 of the Courts of Justice Act;

(d) Voir dires will be held at the resumption of the trial on August 19, 2019 of the following children's statements made by them to:

(i) The Peel Regional Police on or about February 13, and

(ii) The Respondents in text or Skype communications.

(e) The voir dires shall proceed by the questioning of Constable Shawn Bernie, Detective Constable Blair Kerfoot, Emal Yousufy and Elizabeth Lorusso.

19The matter was thereafter adjourned to August 19, 2019 for the resumption of the trial.

Voir Dires

Children's Statements to Mr. Yousufy and/or Ms. Lorusso

20On August 19, 2019, a voir dire was held regarding the statements made by A.Y. and H.Y. to the Respondents through text and/or Skype communication during the period of November 2016 to November 2017.

21Following the examination and cross-examination of Mr. Yousufy and Ms. Lorusso and submissions by counsel, and for oral reasons given, I excluded the documents containing the children's statements from the document briefs filed on behalf of the Respondents.

22After hearing the voir dires, I found that there were insufficient elements of both procedural and substantive reliability to admit each child's statements for the truth of their contents as requested by Mr. Yousufy and Ms. Lorusso.

23In my ruling, I gave detailed reasons referencing specific examples of why the thresholds of procedural and substantive reliability were not met. Following this decision, the documents relating to these statements contained in the Document Briefs filed were removed, on consent.

Children's Statements to Peel Regional Police

24On August 19, 2019, counsel indicated that, following discussion, they consented to the introduction of the children's statements made during police interviews held on February 13, 2017. Counsel indicated that in advising the Court of this consent, they were satisfied that the issue of procedural and substantive threshold reliability was met with the issue of ultimate reliability to be determined following the hearing of all of the evidence.

25Prior to the viewing of the police interview recordings, counsel proceeded to call the interviewers, namely Constable Shawn Bernie and Detective Constable Blair Kerfoot, to satisfy me that the consent regarding admissibility was supported by the evidence.

26Counsel further consented that, due to the witnesses' availability, Constable Bernie would be called during the presentation of Ms. Yousufy's evidence and that Detective Constable Kerfoot would be called during the presentation of Mr. Yousufy and Ms. Lorusso's evidence.

27It was further agreed that should I accept the consent of counsel on the issue of admissibility, the trial would immediately continue with the viewing of the interview recordings followed by the examination-in-chief and cross-examination of Constable Bernie and Detective Constable Kerfoot.

Statements by A.Y.

28Constable Bernie was the first interviewer to be called.

29As to his qualifications, Constable Bernie testified that:

• He had been employed by the Peel Regional Police for fifteen years;
• He was initially assigned to the Criminal Investigation Bureau, but has been a member of the Special Victims Unit for two years;
• The Special Victims Unit is tasked to deal with children and adults identified as potential victims in cases where allegations of sexual abuse have occurred; and
• In the Fall of 2018, he took a Child Interviewing course while assigned to the Criminal Investigation Bureau, and also other courses on how to interview children.

30As to his contact with the child, A.Y., Constable Bernie testified that:

• On February 13, 2017, while still assigned to the Criminal Investigation Bureau, he was on a "ride along" with the Special Victims Unit;
• The officer in charge received a call from the Halton Children's Aid Society and as a result, he was assigned to interview the child, A.Y. within the context of this investigation;
• He was briefed that the allegations raised were that A.Y has been locked in her room, hit with a hanger and not fed by the mother;
• The protocol procedure was followed for the interviewing of A.Y., namely that he met A.Y. in the waiting room, that he introduced himself and made sure the child was comfortable and only then, the child accompanied him to a private room for the interview;
• Once in the interview room, he discussed with A.Y. that lying is not the goal, to tell the truth, that if a question is not clear, to tell him and he will re-phrase and not to guess at an answer and to say "don't know";
• The discussion regarding telling the truth was done in age appropriate language, namely of a nine year old child, which was A.Y.'s age at the time of the interview;
• The interview lasted fifteen to twenty minutes and that he was in the room with A.Y. the entire duration except when he stepped out at the end of the interview to update the officer in charge of the investigation;
• During the interview, he asked questions which were "not directive" but rather "free flowing";
• A.Y. was, in his view, responsive and not trying to mislead him;
• Ms. Yousufy, Mr. Yousufy and/or Ms. Lorusso were not present during the interview; and
• At the completion of the interview, he brought A.Y. back to the waiting area.

31Following the questioning of Constable Bernie, I accepted counsel's consent to the admissibility of the recording of the police interview of A.Y. The basis of this ruling was that, after hearing the testimony of Constable Bernie regarding the steps and questions prior to the interview beginning on the allegations of abuse, I did not have concerns that the thresholds of procedural and substantive reliability were met.

32Thereafter, and on consent, the digital recording of the Peel Regional Police interview of A.Y. was accepted and entered as Exhibit 3. The trial continued with the viewing of the recording of the interview of A.Y. by Constable Bernie.

Statements by H.Y.

33As to his qualifications, Detective Constable Blair Kerfoot testified that:

• He had been employed by the Peel Regional Police for sixteen years;
• He has been a member of the Special Victims Unit for three years;
• He has taken specialized training in sexual assault and in challenging interviewing techniques;
• He has graduated from college and has taken some university courses;
• He has done in excess of 100 interviews since being employed with the Peel Regional Police of which approximately 25 would have been with children; and
• At the time of the interview with H.Y. he would have been assigned to the Special Victims Unit for six months.

34Following the determination that his notes were made contemporaneously to the interview and not altered, and on consent, leave was given to Detective Constable Kerfoot to refer, if necessary, to his interview notes with H.Y. during his testimony.

35As to his contact with the child H.Y., Detective Constable Kerfoot testified that:

• On February 13, 2017, he was assigned to interview H.Y. and report back to the officer in charge;
• He was briefed by the constable in charge that allegations had been received by the Halton Children's Aid Society, by way of an e-mail from Mr. Yousufy, regarding allegations of abuse of the children while in the care of their mother;
• The child, H.Y., had been brought to the police station by Mr. Yousufy, and Ms. Lorusso;
• He did not have a conversation with H.Y. outside of the context of his interview;
• During the interview, H.Y. appeared willing to answer questions in relation to name, age and school; and
• Following the completion of the interview, he briefed the investigating officer and no further follow-up questions were asked of H.Y.

36Following the questioning of Detective Constable Kerfoot, I accepted counsel's consent to the admissibility of the recording of the police interview of H.Y. The basis of this ruling was that, after hearing the testimony of Detective Constable Kerfoot regarding the steps and questions prior to the interview beginning on the allegations of abuse, I did not have concerns that the thresholds of procedural and substantive reliability were met.

37Thereafter, and on consent, the digital recording of the Peel Regional Police interview of H.Y. was accepted and entered as Exhibit 12. The trial continued with the viewing of the recording of the interview of H.Y. by Detective Constable Kerfoot.

TRIAL

Background

38At the Trial Management Conference held on January 16, 2019, an order was made by Khemani, J. requiring the parties to file Document Briefs and a Joint Trial Record by January 25, 2019.

39The endorsement further indicated that, on consent, all evidence-in-chief would be presented by affidavit. The order further provided that the Document Briefs were to contain the affidavits of the parties and their updated financial statements for trial purposes.

40These documents briefs were entered, on consent, as exhibits to the Trial.

41The following facts are not disputed between the parties:

• Mr. Yousufy is from Mississauga, ON;
• Mr. Yousufy is the youngest of several siblings;
• Mr. Yousufy's family immigrated to Canada from Afghanistan in 2005;
• The marriage between Ms. Yousufy and Mr. Yousufy was an arranged marriage;
• Mr. Yousufy was not present at the marriage ceremony in Mazar-e-Sharif, Afghanistan which occurred in June 2004;
• Mr. and Ms. Yousufy did not meet in person prior to their marriage;
• Ms. Yousufy is Mr. Yousufy's cousin;
• Ms. Yousufy arrived in Canada on December 2, 2006;
• At the time of her arrival, Ms. Yousufy was not able to read, speak or write in English;
• Ms. Yousufy's skills in the English language continue to be minimal;
• For the initial six months following Ms. Yousufy's arrival in Canada, she and Mr. Yousufy lived with the paternal grandparents;
• The child A.Y. was born on […], 2007;
• In early January 2008, Mr. and Mrs. Yousufy were able to secure their own apartment unit in the same building as the paternal grandparents;
• The child H.Y. was born on […], 2009;
• In late 2015/early 2016, Ms. Yousufy's third pregnancy was terminated;
• Since Ms. Yousufy's arrival in Canada, she has not worked outside of the home;
• Mr. Yousufy graduated from High School in 2002 and then studied Business Administration at Humber College. Following his graduation, he held various employment positions in the Region of Peel;
• One of the employment positions held by Mr. Yousufy was at a pizza franchise. It was during this employment that Mr. Yousufy met Ms. Lorusso, as she was also employed at this business;
• In late 2013/early 2014, Mr. Yousufy left his employment at the pizza franchise and began working in Milton, ON with his brother in his pizza franchise;
• In June 2016, Mr. Yousufy, Ms. Yousufy and their children relocated to Dawson, British Columbia to allow Mr. Yousufy to work with another one of his brothers in opening up pizza franchises in that province;
• On August 24, 2016, Ms. Yousufy and the children returned to Mississauga, ON;
• August 24, 2016 is the date of separation;
• Following their return, Ms. Yousufy and the children resided with the paternal grandparents until securing their own unit in the same building in early 2017;
• Mr. Yousufy returned to Ontario in or about September 28, 2016;
• Upon his return, Mr. Yousufy began to reside in the basement of Ms. Lorusso's mother's home in Milton, ON;
• Mr. Yousufy did not pay any rent for this accommodation;
• From the date of the parties' separation, namely August 24, 2016 to January 29, 2017, the children, A.Y. and H.Y., were in the primary care of Ms. Yousufy;
• Since January 29, 2017, the children have been in the primary care of Mr. Yousufy and Ms. Lorusso;
• A limited number of supervised access visits occurred between Ms. Yousufy and the children between the period of July 25, 2017 to July 20, 2018;
• There has been no in-person contact between Ms. Yousufy and the children since July 20, 2018;
• A limited number of telephone contact has occurred between Ms. Yousufy and the children since January 2017 to present;
• On November 9, 2018, a Report of the Children's Lawyer pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 was filed in this matter;
• Both parties disagree with the recommendations contained in the report however only Mr. Yousufy and Ms. Lorusso filed a Dispute pursuant to Rule 21 of the Family Law Rules, O.Reg 114/99; and
• All parties characterize this matter as a high conflict custody and access case.

Issues for Determination

42The major issue for determination is custody. Mr. and Ms. Yousufy are each requesting that they be granted an order for sole custody of their children.

43Arising from the determination of custody are the issues of access, child support and other relevant terms incidental to the issues of custody and access.

44Ms. Yousufy also seeks a restraining order against Ms. Lorusso.

Orders Relevant to the Issues for Determination

45These are the relevant orders granted in these proceedings:

1. An order dated April 7, 2017 denying Ms. Yousufy's request for an order of sole custody and other relief sought on an Urgent Ex-Parte basis;

2. An order dated April 27, 2017, denying Ms. Yousufy's request to schedule an urgent motion and relief regarding service on Mr. Yousufy by substitutional service;

3. A temporary without prejudice order dated July 25, 2017, on consent of the parties, for:

(i) supervised access between Ms. Yousufy and the children through the Lutherwood's Child and Parent Place; and

(ii) telephone access every evening between the hours of 7:00 and 7:30 p.m. between Ms. Yousufy and the children.

4. A temporary order dated July 25, 2017 recommending the involvement of the Office of the Children's Lawyer;

5. A temporary order dated December 8, 2017 varying the July 25, 2017 order to provide that access occur at a specific location of the Lutherwood's Child and Parent Place or such other location as determined by them;

6. A temporary order dated December 27, 2017 denying the motion by Mr. Yousufy and Ms. Lorusso, brought in chambers and on notice to Ms. Yousufy, seeking leave to bring a motion to transfer the proceedings to Woodstock, ON and recommending the involvement of the Office of the Children's Lawyer;

7. A temporary order dated November 8, 2018 denying the motion by Mr. Yousufy and Ms. Lorusso, brought in chambers and on notice to Ms. Yousufy, seeking an order granting them permission to travel with the children and other orders; and

8. A temporary order dated December 18, 2018 denying:

(i) an urgent motion by Ms. Yousufy, brought in chambers and on notice to Mr. Yousufy and Ms. Lorusso, seeking an order for sole custody, primary residence and access; and

(ii) an urgent motion by Mr. Yousufy and Ms. Lorusso, brought in chambers and on notice to Ms. Yousufy, seeking an order for sole custody, therapy for the children and for the trial of this matter to be expedited.

The Positions of the Parties

Ms. Yousufy

46Ms. Yousufy's position supporting her claim for sole custody is that she has been the primary parent for the children since their birth up to and including until January 29, 2017.

47Ms. Yousufy's position is that she has, since her separation and Mr. Yousufy's return to the Region of Peel on September 28, 2016, always encouraged and facilitated contact between the children and their father. She submits that she has fulfilled this obligation even in the face of Mr. Yousufy not demonstrating an interest in seeing the children upon his return to the Region of Peel from British Columbia.

48Ms. Yousufy states that initially Mr. Yousufy, and then with the support of and active involvement of Ms. Lorusso, implemented a plan to remove her entirely from her children's lives once he returned to the Region of Peel from the Province of British Columbia.

49Ms. Yousufy states that Mr. Yousufy and Ms. Lorusso removed the children from her care on January 29, 2017 under false pretenses of bringing them to a scheduled doctor's appointment and without her consent.

50Ms. Yousufy believes that once the children were with their father, Ms. Lorusso contacted the Halton Children's Aid Society and made false allegations against her and her care of the children in order to solidify their role as the children's primary caregivers.

51This plan, Ms. Yousufy submits, continued even in the face of the completed investigation of the Halton Children's Aid Society on March 29, 2017. The completed investigation report did not support the allegations raised as a whole, but found that inappropriate physical discipline had been used by Ms. Yousufy in the care of the children. It was found that no other protection concerns existed.

52Despite this outcome, Ms. Yousufy states that Mr. Yousufy refused to return the children to her care and only agreed to supervised access between herself and the children. This access was only arranged after a court order granted on July 25, 2017.

53The supervised access visits did not occur until January 2018. By July 2018, the supervised access visits were ended as a result of the children not wishing to participate.

54Ms. Yousufy is of the belief that Mr. Yousufy and Ms. Lorusso have influenced the children in not wanting to see or communicate with her thereby alienating them from her.

55Ms. Yousufy submits that the alienating behaviour of Mr. Yousufy and Ms. Lorusso include them not allowing the children to speak to her on the telephone and telling and re-enforcing to the children that they were abused while in her care.

56It is on this basis that counsel for Ms. Yousufy seeks an order granting her the immediate return of the children to her care, an order for sole custody, an order for supervised access by Mr. Yousufy, a restraining order prohibiting Ms. Lorusso from having contact with Ms. Yousufy or the children and child support from both Mr. Yousufy and Ms. Lorusso in accordance with the Child Support Guidelines.

Mr. Yousufy and Ms. Lorusso

57Mr. Yousufy submits that throughout his marriage to Ms. Yousufy, he was the children's primary parent.

58Mr. Yousufy submits that Ms. Yousufy abducted the children and left British Columbia with them on August 24, 2016 without his consent. He submits that he had no knowledge of the children's whereabouts until he received a telephone call from his parents informing him that the children and Ms. Yousufy were in the Region of Peel.

59Mr. Yousufy submits that, upon his return to the Region of Peel, on September 28, 2016, Ms. Yousufy only allowed him limited contact with his children.

60Mr. Yousufy and Ms. Lorusso's position is that the children were placed in their full-time care on January 29, 2017 with the consent of Ms. Yousufy.

61Once the children were in their full-time care, Mr. Yousufy and Ms. Lorusso submit that A.Y. and H.Y. began disclosing incidents of abuse while in the care of their mother. Given these disclosures, they contacted the Halton Children's Aid Society which resulted in the children being interviewed by the Peel Regional Police and a subsequent joint investigation with the Halton Children's Aid Society occurring.

62Mr. Yousufy and Ms. Lorusso both deny being the authors of the e-mail sent to the Halton Children's Aid Society as alleged by Ms. Yousufy.

63Mr. Yousufy and Ms. Lorusso submit that they were told by the Halton Children's Aid Society to only allow Ms. Yousufy to have supervised access to the children. They submit that this direction continued following the completion of the Society's investigation.

64Mr. Yousufy and Ms. Lorusso submit that it is the children, of their own initiative, who do not wish to see their mother for in-person visits. They submit that the children have suffered while in the care of their mother and this has resulted in their views that no contact should occur.

65Mr. Yousufy and Ms. Lorusso submit that the children's choices have been independently formulated and as their primary caregivers, they have encouraged, supported and offered incentives for the children to visit with their mother as they wish the children to have a positive relationship with their mother, but in a safe environment.

66Mr. Yousufy and Ms. Lorusso submit that the telephone contact permitted by the existing court order is not occurring given Ms. Yousufy not following through.

67Mr. Yousufy and Ms. Lorusso submit that the children have thrived academically, emotionally, developmentally, physically and socially since being in their full-time care.

68It is on this basis that counsel for Mr. Yousufy and Ms. Lorusso seeks an order granting Mr. Yousufy sole custody, an order for supervised access by Ms. Yousufy, and counselling for the children to occur in Woodstock, ON.

ANALYSIS

405There is no dispute between counsel that the legislative framework under which an order for custody of and/or access to a child is to be determined is section 24 of the Children's Law Reform Act, R.S.O. 1990, c.C.12 as am. (CLRA).

406Section 24 of the CLRA specifies that when determining an appropriate order for custody or access to a child, the court shall consider the best interest of the child including:

Merits of Application for Custody or Access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best Interests of Child

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

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application.

407Of the eight factors contained in subsection 24(2), not one factor has greater weight than the other or is particularly determinative of the issue before the court. See: Libbus v. Libbus, 2008 O.J. No. 4148, (Ont. SCJ).

408I have considered all of these factors in light of the issues and evidence presented on behalf of all parties.

409In closing submissions, counsel described the conclusion of the trial as leaving the court with an extremely difficult decision as to which order is in the best interest of A.Y. and H.Y.

410Ms. Yousufy, Mr. Yousufy and Ms. Lorusso, throughout the duration of this trial, have presented their evidence in support of their clear belief as to how A.Y. and H.Y. have suffered.

411Counsel on behalf of Ms. Yousufy depicted the evidence throughout the trial as supporting his client's belief that Mr. Yousufy, has for the past three and a half years devised and then implemented, with the assistance of Ms. Lorusso, a plan to achieve his goal of ensuring that Ms. Yousufy not play a role in her children's lives. To that end, the children have gradually been led to believe and ultimately accept that their mother is not a person they are safe with.

412Counsel of behalf of Mr. Yousufy and Ms. Lorusso depicted the evidence throughout this trial as supporting his clients' belief that the children were innocent victims of abuse while in the care of their mother and that only when they were removed from her care did they feel able to disclose the full extent of the harm they had suffered.

413It is clear that in this highly contentious case, A.Y. and H.Y. need help.

414The court must also consider subsection 24(3)(b) which reads as follows:

"A person's past conduct shall be considered only,… (b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent."

415The court's decision in Leggatt v Leggatt, 2015 ONSC 4502 stated that If one parent does not facilitate, or undermines the child's relationship with the other parent, this will be a relevant factor in determining their ability to act as a parent.

416The conduct of Mr. Yousufy, Ms. Lorusso and Ms. Yousufy is at the heart of this matter.

417The fundamental issue to determine therefore is does the evidence support a finding that A.Y. and H.Y. have been (a) victims of abuse by the conduct of their mother or (b) victims of parental alienation by the conduct of their father, assisted by Ms. Lorusso.

418It is only following this determination can the appropriate order as to what is in these children's best interests be determined. It is within this context that I have carefully considered all of the evidence presented by the parties throughout this trial.

Abuse vs Alienation and Credibility of the Parties

419Counsel on behalf of Ms. Yousufy has referenced the decision of Madam Justice J. Mackinnon in Fielding v. Fielding, 2013 ONSC 5102.

420In her decision, MacKinnon, J. qualified an expert to provide opinion testimony on the theory and research pertaining to parental alienation. She states at paragraphs 135 and 136 of her decision as follows:

"[135] Part of the generic report listed 17 alienating strategies which foster unjustified rejection of the other parent and eight behaviours displayed by an alienated child. These are derived from Dr. Baker's research with parents who, based on their reports, she concluded had been alienated as a child. Dr. Baker's opinion is that parental alienation is established if:

• there was a prior positive relationship with the targeted parent;
• there is an absence of abuse by the targeted parent;
• there is use of many of the alienating strategies; and
• the child exhibits most of the alienated child behaviours.

136Dr. Baker's list of 17 alienating strategies is a useful checklist of parental misconduct which may impair a child's relationship with the other parent. The strategies she includes are:

• Badmouthing;
• Limiting contact;
• Interfering with communication;
• Limiting mention and photographs of the targeted parent;
• Withdrawal of love/ expressions of anger;
• Telling the child that the targeted parent does not love him or her;
• Forcing the child to choose;
• Creating the impression that the targeted parent is dangerous;
• Confiding in the child personal adult and litigation information;
• Forcing the child to reject the targeted parent;
• Asking the child to spy on the targeted parent;
• Asking the child to keep secrets from the targeted parent;
• Referring to the targeted parent by their first name;
• Referring to a step-parent as mom or dad and encouraging the child to do the same;
• Withholding medical, social, academic information from the targeted parent and keeping his/her name off the records;
• Changing the child's name to remove association with the targeted parent; and
• Cultivating dependency on self / undermining authority of the targeted parent."

421Justice Mackinnon when on to state at paragraph 137 of her decision as follows:

"The difficulty with applying the generic list to a particular case, without an individualized assessment, is that interpersonal dynamics are complicated and nuanced. There are degrees and continuums of behaviour not susceptible to analysis by reference only to a checklist. Nor does the generic report account for the reality accepted by Dr. Baker; that all rejections are not due to alienation. For example, the generic report does not address any behaviours of a rejected parent that might contribute to the child's rejection."

422Alienation then must be distinguished from realistic estrangement.

423In this case, Mr. Yousufy and Ms. Lorusso did not present an expert witness to provide an opinion supporting that the children have been victims of abuse. In advancing this theory, they rely exclusively on A.Y. and H.Y.'s statements, primarily to them but also to third parties.

424In this case, Ms. Yousufy did not present an expert witness to provide an opinion supporting her belief that the children have been alienated by Mr. Yousufy and Ms. Lorusso. In advancing this theory, she relies exclusively on her denial of abusive conduct towards her children, the inconsistency of the children's disclosure, the absence of credibility of Mr. Yousufy and Ms. Lorusso in their testimony and the absence of evidence to support the children's statements.

425Counsel for Mr. Yousufy and Ms. Lorusso submits that the children have been clear and consistent in their disclosures regarding the trauma they suffered while in the care of their mother. Counsel submits that consistent disclosures have been made not only to his clients, but also to several of the children's teachers, their school social worker, a nurse practitioner, the police, a child protection worker and the clinical agent from the Office of the Children's Lawyer.

426Counsel concedes that there are some minor discrepancies, such as not disclosing to all third parties being poked with a sewing needle. Counsel submits however these should not result in the court questioning the veracity of the children's disclosures and the foundation as to why they have clearly expressed a fear of being with their mother.

427I have thoroughly reviewed the oral testimony and the documents of Mr. Yousufy and Ms. Lorusso and well as the evidence of the witnesses called on their behalf. After careful consideration, I cannot accept that the abuse and trauma they so firmly believe happened to A.Y. and H.Y., while in the care of their mother, did occur to the extent these children have stated.

428I accept that conclusions reached by the Halton Children's Aid Society and the Peel Regional Police that some inappropriate form of physical discipline was used by Ms. Yousufy towards her children. The disclosure of both children indicates that this occurred prior to Mr. Yousufy and Ms. Yousufy's separation, as the children disclosed that this occurred when their father was at work. I accept that the evidence supports the determination by the Halton Children's Aid Society that the incident was historical in nature.

429Furthermore, I accept Halton Children's Aid Society and the Peel Regional Police's conclusion that following their warning to Ms. Yousufy, she is not likely to engage in this form of discipline again.

430I do find it concerning that Ms. Yousufy continues to deny the inappropriate use of physical discipline. In order to move forward, she must gain insight into her actions and the impact of this on H.Y. and A.Y.

431In accepting that the only concern supported by the evidence regarding the care of the children while with Ms. Yousufy is limited to the use of inappropriate physical discipline, I am rejecting that concerns of lack of hygiene, nutrition and ongoing use of inappropriate physical discipline existed during this period.

432I have reached this conclusion on the following evidence:

• The children were visible in the community and at school during the period of alleged abuse. The children's doctor, Dr. McIntyre, their teachers and the nurse practitioner that was consulted never saw any indication of bruising, marks, improper nutrition and/or concerns regarding their hygiene pre and post separation;

• The children were seen almost daily by their paternal grandparents, who also testified that they never saw the children abused and not well cared for by their mother. The paternal grandmother testified that she would assist Ms. Yousufy in bathing and feeding the children. In this role, she never saw bruising, marks or other concerns. The paternal grandfather also corroborated and added to his wife's evidence regarding their almost daily involvement with the children;

• Mr. Yousufy corroborated his parents' testimony regarding their contact with his children. He described his mother as a "loving grandmother" and that he was supportive of the children having contact with both his parents;

• The Halton Children's Aid Society, in their investigation, did not verify the concerns of abuse, both physical and emotional, lack of proper hygiene and nutrition and any mental health concerns relating to Ms. Yousufy;

• Ms. Collins testified that when she saw the children at the clinic, Mr. Yousufy and/or Ms. Lorusso would describe the children having physical ailments which increased in frequency around times when they had contact with their mother. The children would thereafter immediately describe their symptoms linking them exclusively to contact with their mother;

• Ms. Schweitzer, Ms. Clarke, Constable Bernie, Detective Constable Kerfoot all noted, following their interaction with the children, that they appeared to have been coached by Mr. Yousufy and/or Ms. Lorusso;

• Ms. Schweitzer concludes following her investigation that Ms. Yousufy's relationship with her children has been interfered with;

• The children, despite numerous contacts with several third parties, would selectively disclose certain facts to some and not to others;

• The children made several disclosures while in the presence of Mr. Yousufy and/or Ms. Lorusso. These disclosures appeared to contain more details then disclosures made outside of Mr. Yousufy and/or Ms. Lorusso's presence;

• Ms. Schweitzer concluded that the children's disclosure "…changed over time and depending on who they spoke to.";

• The children's disclosures to third parties were described by these third parties as A.Y. and H.Y. mirroring each other's words, using words not typical of their respective ages but more typical of adult vocabulary;

• The evidence of the police officers and Ms. Schweitzer that the children had difficulty remembering details supporting their disclosures yet described being abused and maltreated on a consistent basis until January 2017;

• The pattern of behaviour by Mr. Yousufy and Ms. Lorusso of describing the children as victims of abuse to third parties in contact with the children; and

• H.Y. specifically identified, to the OCL clinical investigator, Ms. Lorusso and Mr. Yousufy as adults who would be upset with H.Y. getting the answer wrong when speaking about Ms. Yousufy.

433I also find that Mr. Yousufy and Ms. Lorusso lack credibility before the court.

434The children's disclosure to Ms. Schweitzer included that both Mr. Yousufy and Ms. Lorusso spoke to them about the court proceedings, told them about statements being made by Ms. Yousufy, inquired about what occurred during the access visits and what was discussed during the telephone calls.

435H.Y. disclosed to Ms. Schweitzer that Mr. Yousufy and Ms. Lorusso cried when being brought to the "safe place" for visits with their mother.

436A.Y. advised her school counsellor, Ms. Watson, that she was aware of the recommendations of the OCL report. This disclosure was made at the time that A.Y. was not having any in person contact with Ms. Yousufy.

437Mr. Yousufy and Ms. Lorusso's outright denied this conduct.

438I accept the testimony of Ms. Schweitzer and Ms. Watson over the testimony of Mr. Yousufy and Ms. Lorusso. I make this determination knowing Mr. Yousufy and Ms. Lorusso's views that Ms. Schweitzer is biased. However, no evidence was presented to support this characterization of Ms. Schweitzer's report or as to why Ms. Watson would misstate what A.Y. told her.

439I find that the evidence does support a determination that Mr. Yousufy and Ms. Lorusso exposed the children to the litigation, created an atmosphere of apprehension surrounding their contact with Ms. Yousufy and conveyed a message to A.Y. and H.Y. that they should fear their mother.

440Furthermore, I do not accept Mr. Yousufy's evidence that he was the children's primary parent and that this role was usurped when Ms. Yousufy "abducted' the children on August 24,2016 by returning to Ontario from British Columbia without his consent.

441Mr. Yousufy's evidence was that he was employed full-time outside of the home and that the children were left in the care of their mother. This evidence is not disputed by Ms. Yousufy or the paternal grandparents.

442Furthermore, Mr. Yousufy's testimony, which at times was not consistent, with respect to his caring of the children at the end of his work day, does not, in my view, support his conclusion that the children were in his primary care. Rather the evidence establishes a somewhat traditional arrangement whereby Ms. Yousufy was left with the responsibilities of caring for the children and the household while Mr. Yousufy earned income to support the family.

443This arrangement is not exclusively traditional in the sense that the evidence does support that Ms. Yousufy required and sought the assistance of the paternal grandparents in caring for the children.

444Furthermore, I do not find that the assistance of the paternal grandparents minimized Ms. Yousufy's role as the children's primary parent. Ms. Yousufy had arrived from her native homeland not knowing how to communicate and adapt to a new country, feeling isolated and limited in her social connections and married to someone who was a stranger to her. Her reliance on her in-laws in such circumstances displays insight in her requiring assistance to care for her children. This, I find, is a strength and not a weakness.

445Mr. Yousufy denied being in a romantic relationship with Ms. Lorusso prior to September 2016. He specifically denied being the author of a letter of apology addressed to Ms. Lorusso whereby he advises her that he is choosing to work on his relationship with Ms. Yousufy, which included undertaking a fresh start in British Columbia.

446The only evidence before the court was the message itself and the denial of both Mr. Yousufy as the author and Ms. Lorusso as the recipient. However, the evidence is not disputed that following the departure of Ms. Yousufy from British Columbia in August 2016, Mr. Yousufy immediately reached out to Ms. Lorusso, who he described as a "good friend' with whom he has had "occasional communications" with over time.

447The result of this communication is that Mr. Yousufy, upon returning to Ontario, moved into Ms. Lorusso's mother's basement without any financial obligations. I find the evidence regarding the platonic parameters of their relationship, as described by Mr. Yousufy and Ms. Lorusso, questionable in light of this arrangement.

448Mr. Yousufy's credibility is further diminished by his testimony that Ms. Yousufy abducted the children and returned to Ontario without his consent.

449I find that the testimony of Mr. Yousufy is not plausible given the evidence of Ms. Yousufy's limited knowledge of English, the absence of any evidence that she would have been able to gather the necessary information, reserve and pay for airline tickets, and the evidence that she was assisted by Mr. Yousufy's brother, who although he did not testify, confirmed to Ms. Schweitzer that he brought Ms. Yousufy and the children to the airport.

450The paternal grandfather also testified that Mr. Yousufy advised him during a telephone conversation that he was "sending the children back to Ontario".

451Perhaps most damaging to Mr. Yousufy's testimony is the fact that although he claimed to be the children's primary parent, being aware that his children have suffered "abuse" while in the care of their mother, and his children having been "abducted", his own evidence is that he did not contact the police upon discovering that Ms. Yousufy and the children were not at home and did not have contact with Ms. Yousufy and the children for the period between August 24, 2016, being the date Ms. Yousufy and the children left B.C., and September 28, 2016, being the date he returned to Ontario.

452I do not accept, that in the backdrop described by Mr. Yousufy during the trial, his explanation regarding the absence of communication for over one month, namely that Ms. Yousufy's departure required time for him to "sever his business ties with his brother, clean the house, pack the UHaul and drive to Ontario." is credible.

453I find that the evidence of the paternal grandfather and uncle is more credible on the circumstances surrounding Ms. Yousufy and the children's return to Ontario than that of Mr. Yousufy, as he clearly would benefit in mounting a claim of abduction within a custody battle.

454I further find that Ms. Lorusso lacked credibility during her testimony.

455Ms. Lorusso's denial of her relationship, for the reasons stated above, is questionable. Her denial as the author of the message on social media announcing her longstanding intimate relationship with Mr. Yousufy to members of the paternal family is questionable. It is difficult to accept her explanation that her social media page was hacked as she did not provide any expert evidence as to if, how and when such an invasion could have occurred. Her evidence was limited to a denial and accusing someone from the Yousufy family as the perpetrator.

456Furthermore, her evidence in response to the hacking of her social media page, which she identified as hers, was that she did not take this message seriously as it contained no date and there was "no basis" to it, is concerning.

457The evidence of the paternal grandfather during the trial and through Ms. Schweitzer's investigation of other paternal family members interviewed as collaterals, confirms that they received the message on social media.

458Ms. Lorusso was vague and at times evasive in her evidence regarding when she met Mr. Yousufy and the nature of their relationship over time. She provided no explanation as to why she felt open to approach her mother to allow a co-worker/friend from the past to live in her home rent-free.

459I find that the evidence of the collateral witnesses presented to support the conclusion that Ms. Lorusso is likely to have sent a message through social media declaring her longstanding romantic relationship with Mr. Yousufy, while still with Ms. Yousufy, to be more credible than the denial stated by Ms. Lorusso.

460Of great concern is Ms. Lorusso's denial as the person making the referral which led to the investigation of abuse by the Halton Children's Aid Society of Ms. Yousufy.

461I find that the evidence establishes that in the period between September 28, 2016 and March 2017, Ms. Lorusso, with the consent of Mr. Yousufy, achieved the place of "parent" in the eyes of A.Y. and H.Y. This conclusion is supported by the children's own description of Ms. Lorusso as their "parent" and part of "their family", Ms. Lorusso's own evidence regarding her relationship with the children, Ms. Lorusso's portrayal as a parent to teachers, health professionals and the OCL, and her involvement in the supervised access visits.

462It is within this context, coupled with the overwhelming details attached to the referral complaint to the Halton Children's Aid Society, which leads me to conclude, when weighing the evidence, that Ms. Lorusso was likely, on a balance of probabilities, the one who triggered the abuse investigation by this referral.

463I further find that Mr. Yousufy was aware of this referral as, despite his denial, the referral note indicates that "the father is aware of the call" and Detective Constable Kerfoot also noted in his evidence that Mr. Yousufy was aware of the referral.

464I am also troubled by the timing of the relocation of Mr. Yousufy, Ms. Lorusso and the children to Woodstock, ON.

465Ms. Lorusso testified, and I accept, that the home in Woodstock was purchased jointly with her grandfather. Furthermore, the facts are undisputed that:

• the property in Woodstock was purchased as an investment vehicle;
• Ms. Lorusso and her grandfather allowed their current tenants to break their lease prior to the end of term, and did not seek compensation from them;
• the decision to move to Woodstock from Milton was made by Mr. Yousufy and Ms. Lorusso within a one week time period following the closing of the Halton Children's Aid Society investigation;
• at the time of the decision to move, Ms. Lorusso did not have employment in Woodstock;
• at the time of the decision to move, Mr. Yousufy was employed in Woodstock on a part-time basis and had been commuting from Milton to Woodstock for the purposes of this employment; and
• Ms. Lorusso's mother did not indicate to Mr. Yousufy and/or Ms. Lorusso that they had to vacate her home.

466The impact of this relocation was to remove the children from their home environment in Milton, where they had been having access and then resided in since January 2017, distance themselves further from Mississauga where their mother and paternal grandparents resided and where they had lived from birth until January 2017 and from the only school they had attended, midway through their academic year.

467This relocation, I find, achieved the objective of Mr. Yousufy and Ms. Lorusso to solidify their desired positions as primary parents to the children while impeding the children's ability, especially given their entrenched position that contact should be supervised by an arm's length agency, to continue their relationship with their mother.

468I accept that Mr. Yousufy loves his children. However, through his testimony and the evidence presented, the court saw a man who entered a marriage with a stranger through family pressure, found himself unhappy and sought support from Ms. Lorusso, tried to salvage his familial relationships, but ultimately rejected his wife, parents and other family members, and within this challenging time, saw an opportunity, and took advantage of it, with the willingness and assistance of Ms. Lorusso, to become his children's primary parent, a role the evidence supports he had never played following their birth and immediately after separation.

469At their ages, A.Y. and H.Y. are beginning to want to focus on their own lives, their friends, and their wants and needs. I accept Ms. Schweitzer's conclusions in her report that A.Y. and H.Y. have been placed in a "loyalty bind" resulting in them having to choose between their parents.

470In making their choice following their relocation to Woodstock in January 2017 under what Mr. Yousufy describes as an agreement giving him custody, the children, as concluded by Ms. Schweitzer in her report "… appear to have internalized and identified as 'abused". The result is that this self-identification justifies their outright rejection of their mother.

471Ms. Schweitzer's conclusions at pages 37 to 39 of her report bear repeating. She writes:

"It is insufficient for Mr. Yousufy and Ms. Lorusso to say that the children do no want to see their mother, or that the children want them to be together as a couple. A.Y. and H.Y. are too young to make this kind of decision, and should not be put in a position to do so. Mr. Yousufy and Ms. Lorusso's credibility must also be questioned when the information they put forth contradicts itself in a continuing record and by multiple collaterals as well as the children's own interviews. What is certain, is that they have placed these children in the middle of a custody dispute that has had significant impact on these children's lives.

Interviews with this clinician provided ample evidence that the children are experiencing a loyalty bind, and are looking to the adults in their life to help them see the way forward. A.Y. and H.Y. need the opportunity to re-establish a positive, attached relationship with their mother, and they need adults to create the conditions for this to take place. This is such a fundamental part of their development experience, it cannot be overstated."

472Counsel for Ms. Yousufy submits that not all cases of parental alienation require expert testimony. I accept counsel's submission that, as stated by Nicholson, J. in the decision of Malhotra v. Henhoeffer, 2018 O.J. No. 5806 at paragraph 107 that:

"Parental alienation is a legal concept as opposed to a mental health diagnosis. As such, it is my view that the court can make a finding of alienation based upon an analysis of the facts alone without expert evidence."

473The evidence in this case has seen A.Y. and H.Y. accept a full relationship with their father and step-mother and no relationship with their mother. Why has this choice been made within the context of their parents' separation, which was an involuntary change in their young lives?

474It is clear that A.Y. and H.Y.'s views and preferences are that Ms. Yousufy is the "bad parent" and Mr. Yousufy and Ms. Lorusso are the "good parents".

475I find that this view has been formulated by A.Y. and H.Y. due to Mr. Yousufy and Ms. Lorusso engaging in behaviours amounting to parental alienation, based on the evidence at this trial, which as identified in Fielding and Malhotra decisions, include:

• Allowing, insisting and adopting the decisions of A.Y. and H.Y regarding contact with their mother without question;
• Displaying no concern regarding an absence of meaningful contact between the children and their mother since July 2018;
• Exposing the children to the details of the court proceedings and the position of their mother;
• Encouraging, re-enforcing and supporting the children's belief that they were victims of abuse at the hands of their mother and exposing the children to numerous professionals allowing them to depict themselves as such;
• Relocating their residence in order to achieve their objective of further distancing the children from their mother, paternal grandparents and familiar environments without consideration to the children's ability to see their mother and adapt to a new home and school environment;
• Saying the right words to encourage the children to attend visits while displaying disapproval by their actions;
• Taking no responsibility in creating the absence of a relationship between the children, their mother and paternal grandparents;
• Blaming Ms. Yousufy as the sole creator of the children's rejection of her;
• Insistence of Mr. Yousufy that all contact between the children and Ms. Yousufy be supervised, despite a clear direction from the Halton Children's Aid Society that supervision was not required following their investigation and the recommendations contained in the report from the Office of the Children's Lawyer;
• The persistence of this requirement of supervision which assisted Mr. Yousufy to cement the status quo of the children in his care given the delays which transpired in (a) obtaining an order for supervised visits and (b) the unwillingness of Mr. Yousufy to accept that the visits occur in the Region of Peel given Ms. Yousufy's transportation and language issues; and
• Giving the indication to the Halton Children's Aid Society that, following the completion of their investigation, Mr. Yousufy would be seeking custody of the children through court proceedings and not following through as the court record is clear that Ms. Yousufy was the initiating party when she filed her Application on April 17, 2017.

476I find that the behaviour engaged in by Mr. Yousufy and Ms. Lorusso created a pattern of recognition in the minds of A.Y. and H.Y. The result is that A.Y. and H.Y. learned that when they met someone in authority, be it a nurse, a teacher, a police officer or a social worker, they needed to ensure that their description of the abuse they suffered at the hands of their mother was identical on the details of the abuse they suffered.

477As stated by A.Y. to Ms. Schweitzer when describing the abuse "A.Y. reported that [A.Y.] and H.Y. would give the same answer so they would know they were not lying." (see pages 21 to 23 – OCL report).

478This pattern of recognition also existed when the children faced supervised visits with their mother. The children learned that if they rejected their mother and displayed, by the actions and their words that they did not wish to see her, the visits would not occur, and they would be supported by Mr. Yousufy and Ms. Lorusso in this decision.

479The outcome of these reactions was quickly learned by A.Y. who then tried to influence H.Y., which the evidence shows struggled more with the dilemma that she was not supposed to want to go to the visits with Ms. Yousufy.

480In addition to the above, I find that the evidence supports the determination that A.Y. and H.Y. display the following behaviours which falls within the factors indicative of parental alienation:

• Their views of Mr. Yousufy and Ms. Lorusso are that they are the "good parents" and that Ms. Yousufy is a "bad mother";
• They do not see their mother and paternal members as part of their family;
• An unwavering belief that only Mr. Yousufy and Ms. Lorusso are members of their family;
• They do not see their mother as playing a role in their upbringing and participating as a parent in their lives;
• An open hatred of their mother;
• A consistent pattern of refusing to have in-person contact with their mother since July 2018, even within the contact of a supervised environment;
• An absence of any positive memories of contact with their mother and the inability to imagine good times in the future with her;
• Only positive memories and recollections of times in the care of Mr. Yousufy and Ms. Lorusso; and
• An absence of any indication that they wish to have a relationship with their mother at any time.

481Although more credible in her testimony, I find that Ms. Yousufy did display a disturbing lack of insight into maintaining her denial of the use of inappropriate physical discipline of her children. She holds this view despite the Halton Children's Aid Society and the Peel Regional Police confirming this behaviour following their investigation.

482Ms. Yousufy must accept that, prior to January 2017, she chose to rely on the physical punishment of her children which has impacted their view of her as an appropriate provider and protector. This behaviour however is not to the degree that it would impair her relationship with her children to the point of their rejection of her.

483On the evidence, I find that Ms. Yousufy is the parent better suited to attend to the children's needs even with this lack of insight.

484Ms. Yousufy, I find, was the only parent who has shown an acknowledgement that the children require the involvement of both their parents in their lives. I accept Ms. Yousufy and the paternal grandparents' evidence that she facilitated access to Mr. Yousufy upon his return to Ontario from British Columbia over Mr. Yousufy's evidence that she prevented access from occurring as he has described in his testimony.

485I am further satisfied that despite her language limitations, she does have the support of members of the paternal grandparents who have and testified, are prepared to continue assisting in the caring of the children.

486Given these findings, I accept Ms. Yousufy's evidence over Mr. Yousufy and Ms. Lorusso's evidence to support my determination that A.Y. and H.Y. have been alienated to the point of completing rejecting their mother. I am persuaded by the evidence that this alienation was the direct result of behaviour by Mr. Yousufy and/or Ms. Lorusso. In making this determination I have considered the list of indicators of alienation outlined in the Fielding and Malhotra decisions.

487In arriving at this determination, I am rejecting the position of Mr. Yousufy and Ms. Lorusso that the children were victims of abuse while in the care of their mother.

A.Y. and H.Y.'s Views and Preferences

488In support of his request for sole custody and that access between A.Y., H.Y. and Ms. Yousufy be determined following counselling for children who have suffered abuse, Mr. Yousufy submits that his children have consistently expressed a desire to not have a relationship with their mother.

489The children's views and preferences are not disputed by Ms. Yousufy. The OCL report further confirms the children's views and preferences as do other witnesses presented. It is also undisputed that the supervised access community resource ended the visits between the children and their mother due to A.Y and H.Y.'s refusals to participate.

490A child's views and preferences are a factor to be given strong consideration. However, it is important that this consideration is to be given only if the child's views can be reasonably ascertained and in what context.

491The Ontario Court of Appeal, at paragraph 42 in its decision in Deacon v. Deacon, 2013 ONCA 218, stated the following regarding the wishes of children:

"In assessing the significance of a child's wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parents(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child's point of view." See: paragraph 142 Malhotra.

492In this case, I have found that the children have been significantly influenced by the behaviour and views of Mr. Yousufy and Ms. Lorusso. I agree with Nicholson, J. conclusion at paragraph 146 of his decision in Malhotra wherein he states "When there is a finding of parental alienation, little weight should be given to the child's wishes".

493Accordingly, I find that the court should not accept and accede to the expressed views of the children. I have therefore not allocated much weight to the expressed views and preferences of A.Y. and H.Y that they wish to continue to reside with Mr. Yousufy and Ms. Lorusso given my finding of parental alienation.

Long-Term Best Interests of A.Y. and H.Y.

Primary Residence and Custody

494The decision of A(A.) v. A.(S.N.), 2007 BCCA 364 establishes the principle that the court must look at a child's long-term interests in cases where parental alienation is determined to have occurred. The court states that even if the child in question opposes or is upset by a move in residence, the facts may support a determination that it is not in that child's best interest to remain with the alienating parent.

495The children have been in the primary care of Mr. Yousufy and Ms. Lorusso since January 2017. They have resided in Woodstock, ON which required a change in school, in March 2017 and home, since January 2017. They have not had any in-person contact with Ms. Yousufy since July 2018. The telephone contact between the children and their mother has also been problematic since January 2017.

496The passage of time, their limited contact with their mother, the significant distance between the parties' homes, the children's positive adaptation to their new living, learning and social environments, the entrenched positions of the parties and the ages of these children make this an "extreme situation" as described by Ms. Schweitzer in her report.

497As stated by Nicholson, J. at paragraph 178 in Malhotra:

"Given my finding of unjustified alienation…, I am left with four options as articulated by Dr. Fidler, as the following:

1. Do nothing and leave the child with the alienating parent;

2. Do a custody reversal by placing the child with the rejected parent;

3. Leave the child with the favoured parent and provide therapy; or

4. Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent."

498I was not presented with evidence that placement with a neutral third party is an option. Ms. Yousufy has submitted that she has the assistance of the paternal grandparents, which could include placement of the children in their temporary care. I find however that the paternal grandparents cannot be seen as neutral given the evidence.

499If the children are left in the care of Mr. Yousufy and Ms. Lorusso, I find that the pattern of parental alienation will continue. I find that the evidence supports a determination that if the children remain in the care of Mr. Yousufy and Ms. Lorusso, they will continue to support, by their behaviour, the children's perception of victims of abuse and their rejection of their mother.

500I make this determination despite both Mr. Yousufy and Ms. Lorusso testifying that they have and will continue to support the children in their relationship with their mother. I cannot accept this statement given the contradiction between Mr. Yousufy and Ms. Lorusso's actions and words. Furthermore, their proposed plan of care for the children is built upon their firm belief that Ms. Yousufy abused and neglected the children. I find that their testimony did not even display the possibility that such abuse did not occur.

501I hold this view accepting that Mr. Yousufy and Ms. Lorusso have proposed a plan which includes that the children engage in counselling. The counselling proposed however is to focus on the issue of abuse thereby perpetuating the children's perception as victims.

502Given these determinations, I conclude that an order that permits the continued placement of A.Y. and H.Y with Mr. Yousufy and Ms. Lorusso is not in the children's best interests.

503I make this determination satisfied that the evidence supports that in January 2017, an agreement was reached between Mr. Yousufy and the paternal grandfather that the children should be in the care of their father.

504The paternal grandfather denied his involvement in this agreement during his testimony. However, the evidence of the paternal grandmother is more credible on this issue and supports his involvement in this discussion with Mr. Yousufy.

505I accept however that Ms. Yousufy did not willingly agree with this arrangement. I find that the evidence supports that this discussion occurred primarily between Mr. Yousufy and his father, that Ms. Yousufy was upset when the conversation concluded late on the evening of January 29, 2017 with an "understanding" that the children would be in the care of their father.

506I do not however accept that Ms. Yousufy agreed to a term whereby she would only see her children "occasionally" as claimed by Mr. Yousufy.

507These findings leave me with one option, namely that custody of the children be reversed.

508The return of the children to the care of their mother was recommended by the OCL clinical investigator. Her recommendations included a transition over time and under the guidance of a therapist having a cultural understanding specific to this family and experience with child resistance to contact with a parent post separation.

509In her report, Ms. Schweitzer stated "Due to the urgent nature of this situation, the parties should contact a chosen professional within one week of receiving this report." The evidence at trial is that the recommendations of Ms. Schweitzer, released on November 9, 2018 were never implemented by the parties.

510Ms. Schweitzer testified at trial that the absence of implementation of her recommendations and access between the children and their mother was concerning to her. She testified that "…the purpose of the recommendations was to get everyone to co-operate, without that not sure how the children will transition back to their mother."

511Ms. Schweitzer concluded in her report that:

"A.Y. and H.Y. need to experience their father taking credible steps to re-build the bridge for them back to their mother. That said, there is no evidence to indicate that Mr. Yousufy takes responsibility for the children's loss of relationship with their mother and/or extended family. The OCL is concerned about Mr. Yousufy's ability to facilitate the repair of the mother/child relationship."

512The evidence satisfies me that Mr. Yousufy and Ms. Lorusso did not take credible steps or even recognize their role in creating the relationship gap between the children and their mother.

513I also recognize that the option of reversing custody results in removing the children from the home and school environment they, as supported by the evidence, have thrived in since early 2017.

514Even in the face of this undisputed evidence, I find that without a reversal in custody, Mr. Yousufy and Ms. Lorusso will continue to sabotage the children's relationship with their mother. The evidence satisfies me that Mr. Yousufy, supported by Ms. Lorusso, would likely not comply with any order for therapy assisting to implement a transition of the children to the care of their mother.

515I find that given the evidence and for the reasons noted above, the only option in the best interest of these children and which will safeguard against the further alienation of them by Mr. Yousufy and Ms. Lorusso, is a reversal of custody.

516Orders reversing custody in cases finding parental alienation have been made. Counsel for Ms. Yousufy has provided references for such cases. I add to these cases Donald v. Leyton, 2008 CarswellOnt 1967 (Ont. S.C.J) and Johnson v. Ross-Johnson, 2009 NSSC 210 , 2009 CarswellNS 398.

517In making this order, I recognize that this course of action will not be easy for A.Y. and H.Y. However, the children will be returning to familiar surroundings.

518A.Y. and H.Y. will be returning to the home they shared with their parents since birth and their mother following their return to Ontario from British Columbia. This home is also in the same building as their paternal grandparents' residence, with whom they had a close relationship and the evidence supports that the maternal grandmother is missed by the children.

519A.Y. and H.Y. will be returning to the same school they had attended between September 2011 and September 2013 respectively, to March 2017. I am mindful that my order will require a change in school during the academic year, however the children have experienced this before and adapted positively, even with H.Y. learning under an individual education plan.

520I further find that an order of sole custody to Ms. Yousufy is appropriate in these circumstances.

521The recommendation made by the OCL clinical investigator was for joint custody. Ms. Schweitzer testified that in her view, this was the preferred option as it would equalize the power imbalance between the parties, recognize that the children had done well in the care of their father and Ms. Lorusso and ensure the children know they are permitted to have a relationship with their mother.

522Given my finding of parental alienation, I do not find, that given the evidence before me, a joint custodial arrangement would be in the children's best interests. It may be that over time, the parties are able to move towards such a parenting arrangement. At the present time however, the evidence does not satisfy me that Mr. Yousufy and Ms. Yousufy will be able to effectively communicate and co-operate in order to properly address, in a unified manner, the needs of their children.

523In making this determination, I am mindful of the fact that Mr. Yousufy and Ms. Yousufy were unable to discuss, agree and implement a pathway of counselling that they both agreed in principle was needed by the children. I accept that this discussion occurred under the umbrella of highly contested litigation however also with them both having knowledge of recommendations on this point by the OCL clinical investigator.

524I am exercising my authority in making this decision regarding custody based upon my findings of fact after carefully considering the evidence presented during this trial. This decision is based on my determination of what order is in the best interest of these children and not as a punative measure against Mr. Yousufy and/or Ms. Lorusso.

Contact Between the Children and Mr. Yousufy and Ms. Lorusso

525My obligation is to assess the evidence and determine a schedule that is in the best interests of the children.

526The OCL report recommended unsupervised access every second weekend for Mr. Yousufy.

527Ms. Yousufy's plan of care includes, that should she be granted custody of the children, that there should be a "cooling off" period of no contact between Mr. Yousufy and the children for an initial period followed by a gradual re-integration to ensure that alienation does not re-occur. Her plan proposes that access should be supervised for the next three to six months and followed then perhaps by the implementation of the OCL recommendation.

528Counsel further submits that Ms. Lorusso should not have any contact with the children at the beginning as the focus should be on the children's relationship with their father.

529Mr. Yousufy and Ms. Lorusso's plan of care did not include a proposal for contact between them and the children if H.Y. and A.Y. were to be in the care of their mother.

530The court recognizes that Ms. Yousufy and Ms. Lorusso are entitled to maximum contact with the children as may be in their best interests. Despite what has been questionable conduct by them, I accept that they both love A.Y. and H.Y.

531I do not accept Ms. Yousufy's position that access should be limited to Mr. Yousufy. Ms. Lorusso is part of Mr. Yousufy's life and therefore part of the children's lives. The evidence does support that the children want and deserve Mr. Yousufy and Ms. Lorusso in their lives.

532Precluding Ms. Lorusso from having any contact with A.Y. and H.Y., is in my view not in their best interests when considering the factors listed in section 24(2) of the Children's Law Reform Act, R.S.O. 1990, Chapter C.12 and the evidence that supports these factors as described above.

533However, given my findings of parental alienation, I find that a period of no contact followed by supervised access, on a temporary basis, is the structured approach needed in this case to allow the children to recognize that they are permitted to have a full and meaningful relationship with their mother.

534The order will be temporary as given my findings, this case will continue to be overseen by me during this stage of transitioning.

535I am exercising my authority in making this decision regarding access based upon my findings of fact after carefully considering the evidence presented during this trial. This decision is based on my determination of what order is in the best interest of these children and not as a punative measure against any of the parties.

Child Support

536Mr. Yousufy's evidence on financial issues regarding his ability to pay child support was non-specific and non-informative. He testified that he could not recall precisely his 2018 income but stated it was approximately $20,000.00 per year.

537Mr. Yousufy's financial statement, filed for trial purposes, was sworn January 25, 2019. This statement identified two sources of part-time employment income totaling $21,152.76. Mr. Yousufy testified that he is now employed on a full-time with one employer but "does not know his full-time salary."

538After a review of the limited financial documentation provided and Mr. Yousufy's evidence, I find that it is reasonable to impute an annual income of $35,000.00 to him given the description of his employment responsibilities.

539I do not accept Mr. Yousufy's position that he is unable to pay child support on his current income. The evidence is clear that he is contributing minimally to the household expenses and provided no current information supporting, and did not plead, a claim of undue hardship should he be required to pay child support.

540I am satisfied that any child support order should begin following the change in custody as I have ordered. Mr. Yousufy withdrew, at trial, his claim for child support payable by Ms. Yousufy. This issue for determination therefore is limited to only on a "go forward" basis.

541In making this determination, I find that Ms. Yousufy did not provide sufficient evidence to support her request to impute an income of $52,000.00 per year to Mr. Yousufy.

542In considering this issue, I do not accept that Ms. Lorusso has an independent obligation to support A.Y. and H.Y under the Child Support Guidelines. This financial responsibility rests with Mr. Yousufy and is addressed under this order.

Restraining Order

543I find that Ms. Yousufy did not provide evidence to support her request for a restraining order.

544It is clear by her testimony that Ms. Yousufy sees Ms. Lorusso as having played a significant role in interfering with her relationship with her children. However, there is no evidence to support a conclusion that Ms. Yousufy has reasonable grounds to fear for her own safety or for the safety of her children given the terms to be ordered regarding custody and access.

Other Terms

545The request for a non-removal order and an order permitting Ms. Yousufy to suspend access is denied given my orders regarding custody and access and the reasons stated in support of these orders.

ORDER

546For the reasons stated above, I make the following order:

(A) On a Final Basis:

Decision Making

1. The Applicant, Sawithah Yousufy shall have sole custody of A.Y., born […], 2007, and H.Y. born […], 2009.

2. The Applicant, Sawithah Yousufy, shall make the major and day-to-day decisions regarding the children including, but not limited to education, health care and religion.

3. The Applicant, Sawithah Yousufy, is specifically authorized to obtain any treatment and/or counselling for the children as she, in her sole discretion, deems necessary and appropriate for the children's best interests.

Residence

4. A.Y. and H.Y. will reside primarily with the Applicant, Sawithah Yousufy.

Transfer of the Children

5. The Applicant, Sawithah Yousufy, shall be permitted to obtain physical custody of the children on Friday, November 1, 2019 by attending at their school, over their lunch hour or at the end of the school day.

If this option is not possible at the choice of Sawithah Yousufy only, the Respondent, Emal Yousufy, without the presence of the Respondent, Elizabeth Lorusso or any other person, shall bring the children to Sawithah Yousufy on Saturday, November 2, 2019 by 10:00 a.m. to her residence located at 1900 North Sheridan Way, Mississauga, ON.

If possible, it is recommended that the paternal grandparents, especially the grandmother, be in attendance during the transfer of the children.

6. The Respondent, Emal Yousufy, is to ensure that the children's possessions, health cards and other government identification, including passports, if applicable, are delivered to the Applicant, Sawithah Yousufy, by no later than 10:00 a.m. on Saturday, November 2, 2019.

Police Enforcement

7. For the purposes of giving effect to the custody and residential terms of this order and pursuant to section 36 of the Children's Law Reform Act, R.S.O. 1990, Chapter C.12, an order is granted authorizing the police and other law enforcement agencies in this Province, including the Peel Regional Police service and the O.P.P, having jurisdiction in any area where is appears that the children, A.Y., born […], 2007 and H.Y., born […], 2009, may be, shall do all things reasonably able to be done to locate, apprehend and deliver the children to the Applicant, Sawithah Yousufy, and for the purpose of locating and apprehending the children, a member of a police enforcement agency may enter and search any place where he or she has reasonable and probable grounds for believing that the children may be with such assistance and such force as is reasonable in the circumstances.

Information Sharing

8. The Applicant, Sawithah Yousufy, shall provide to the Respondent, Emal Yousufy, the names, address and telephone numbers of the children's school officials and health professionals, including counsellors/therapists, involved with the children.

9. The Respondent, Emal Yousufy, shall have the right to make inquiries and be given information by these professionals regarding the children's health, education and welfare pursuant to section 20(5) of the Children's Law Reform Act, R.S.O. 1990, Chapter C.12.

Child Support

10. Commencing November 1, 2019 and on the 1st day of each month thereafter, the Respondent, Emal Yousufy, shall pay to the Applicant, Sawithah Yousufy, the sum of $532.00 per month as child support for the children, A.Y., born […], 2007 and H.Y., born […], 2009. This amount is based on an imputed annual income of $40,000.00.

11. The Support Deduction order is to issue.

Other Terms

12. The Applicant, Sawithah Yousufy's, the Respondent, Emal Yousufy, and/or Elizabeth Lorusso, is prohibited from discussing with the children any matters arising from this litigation and/or engage in making disparaging remarks to the children about any member of the children's respective families, including Ms. Lorusso and her family.

13. The Applicant, Sawithah Yousufy's, claim for a restraining order against the Respondent, Emal Yousufy, and/or Elizabeth Lorusso, is denied.

14. The Applicant, Sawithah Yousufy's, claim for child support payable by the Respondent, Elizabeth Lorusso, is denied.

15. The Applicant, Sawithah Yousufy's, claim for an order of no access between the Respondent Elizabeth Lorusso and the children is denied.

16. The Applicant, Sawithah Yousufy's, claim for a non-removal order against the Respondent, Emal Yousufy and/or the Respondent, is denied.

17. The Applicant, Sawithah Yousufy's, claim for an order permitting her to withhold access is denied.

(B) On a Temporary Basis:

Access

1. The Respondents, Emal Yousufy, and/or Elizabeth Lorusso shall have supervised access to the children A.Y., born […], 2007, and H.Y. born […], 2009.

2. The supervised access shall occur through a recognized independent supervised access facility, such as the Peel Supervised Access Program, in the Region of Peel.

3. The supervised access shall be for a two hour visit, every two weeks or given service availability, for a shorter duration every two weeks if the time ordered is not initially available to the facility.

4. The supervised access visits shall not occur until the month of December 2019.

5. The issue of access shall be returnable before me, on March 30, 2020 at 10:00 a.m. in Courtroom #207, at which time it shall be determined if a date to hear further evidence on the issue of access needs to be scheduled. The parties can provide their position as to next steps in a 17F confirmation form. I have reserved thirty minutes for this appearance.

6. As this matter has not yet been fully finalized, it is not appropriate to determine or award costs. This issue shall also be spoken to on the return date and if necessary, a timetable can be ordered for written submission to be submitted on behalf of the parties.

547Courts Administration is to expedite the issuing and entering of this order once submitted by counsel in accordance with the Family Law Rules.

Released: October 31, 2019

Justice Lise S. Parent