ONTARIO COURT OF JUSTICE
CITATION: E.M. v. M.Q., 2021 ONCJ 533
DATE: 2021-10-15
COURT FILE No.: Brampton 1319/13
BETWEEN:
Ms. E. M.
Applicant
— AND —
Mr. M. Q.
Respondent
Before Justice A.W.J. Sullivan
Heard on August 19 to 30, 2021
Reasons for Judgment released on October 15, 2021
Mr. Michael Polisuk ..................................................................... counsel for the Applicant
Ms. Swetha Ajit Kumar ................................ counsel for the Respondent Moving Party
SULLIVAN, J.:
1This is the reasons and decision from a 7.5-day trial from a Motion to Change filed by the father, Mr. Q, on September 14, 2018.
2The mother Ms. M. has responded to this Motion to Change.
3Mr. Q.’s parenting time/relationship to their daughter M.M. born - - 2013 is the main issue in this trial.
4The Orders sought to be changed are the two final orders of Justice Clay dated January 2014 and April 2014. The first order was based on a consent Minutes of Settlement. The second was a default order as only Ms. M. attended court. These orders provided decision making/primary residence of the child M.M. to be with the mother. The second order on default set out that the father’s parenting time (access) with his daughter M.M. was to be at the discretion of the Applicant mother, Ms. M.
5Mr. Q. seeks a change to his daughter’s primary residence and decision making for his daughter to him based on what he claims is Ms. M.’s actions and words that have caused their daughter to fear him and not want to have any contact with him. It is this issue that is the subject of this trial.
Litigation History
6Mr. Q. commenced this Motion to Change in September 2018 at which time his principal request to the court was to set his parenting time.
7In February 2020 he filed an Amended Motion to Change seeking a change to the primary residence of his daughter, M.M. to him and final decision making. M.M. is now 8 years old. This is the central issue of this trial.
8Ms. M., the mother, filed her Response to Motion to Change and to the amended Motion to Change on November 25, 2020.
9The evidence is that between the final Order of January 2014 and the Motion to Change, Mr. Q.’s parenting time with M. did not exist.
10There were 16 temporary orders dealing with several issues of Mr. Q.’s parenting time with his daughter M.M. during the 3 years that this file has been before the Court.
11From the evidence in this trial over this period of time, M.M. has had parenting time with her father on two occasions. Once on July 13, 2019 through the Peel Supervised Access Centre and once on March 2, 2021 for approximately 10 minutes while he stood beside the car in which his daughter was seated in the parking lot of the 12 Division of the Peel Regional Police.
The Father Mr. Q.’s position/evidence
12Mr. Q. testified that before the 2014 orders that Ms. M. basically informed him he was not welcome to be involved with their daughter if he did not want to be with Ms. M. as a couple.
13He suggested this he learned from Ms. M. and her family members who he believed rejected him in part because of his Afro Latin American heritage.
14I permitted both parents in this trial to provide to me some history before the last order to provide context. This evidence has not been the source of facts that I have relied on to make my findings in this trial in relation to the law in a Motion to Change.
15There is some evidence that he attempted to return to court after the last order. In questioning he agreed that he failed to update the Court on his change of address and was waiting for something and found out about the last order when he went to the Court Registrar.
16I was provided an endorsement from a 14B brought by Mr. Q. to commence a Motion to Change which was not accepted. There is a statement in the record that indicates he has to wait six months before doing so. This is an error that was not caught and in part set the course of events in this matter.
17Some evidence was provided in both direct and cross-examination regarding the history of Mr. Q.’s mental health. He is currently receiving ODSP. His initial application is based on his Bipolar diagnosis. He was diagnosed at about 19 years old. His evidence is that he is managing his health and takes daily medication, 250 mg of Divalproex (Epival).
18He currently receives ODSP and in the past was working as a painter of homes and commercial properties but stopped this in part because of a slowdown due to the pandemic. Instead of receiving CERB he was directed by his ODSP social worker that he remained eligible for ODSP as his file is open and based on his needs, he was able to reactivate this.
19When questioned about how his daily living is affected by his mental health, he suggests at times he has lack of concentration which he claims in part is caused by this litigation. He stated he was having trouble focusing at work which at time is around heavy equipment and on construction sites.
20Mr. Q.’s family doctor, Dr. Kebede, testified about Mr. Q.’s health and in particular to Mr. Q.’s managing his mental health.
21Dr. Kebede testified that Mr. Q. has been his patient since 2005. He was aware of Mr. Q.’s mental health diagnosis of Bipolar in 2010-2011. He stated that Mr. Q. was last hospitalized for this in 2011 and that Mr. Q. is prescribed 250 mg of Epival twice a day. This is provided to Mr. Q. every 3 months or so with refills up to 6 months to a year.
22When questioned he agreed that Mr. Q.’s hospitalization in 2011 was due to a suicide attempt.
23He testified that upon discharge some counselling was recommended to Mr. Q. and that Mr. Q. had seen Dr. Johnston, a Psychiatrist, in 2019 for a review of treatment/ medication and that Dr. Johnston had no concerns regarding Mr. Q.’s management of his mental health.
24Dr. Kebede testified that each time he sees Mr. Q. he is calm, not angry, and properly dressed.
25The doctor was aware that Mr. Q. applied for ODSP and receives this as the doctor had assisted with that process for mental health reasons and that Mr. Q.’s health issues are around depression at times and this affects concentration and one’s interest.
26In conclusion, the doctor had no concerns regarding how Mr. Q. is working with his health issues and concluded that Mr. Q. is and has been stable for years.
27Mr. Q. led evidence on his follow-up regarding parenting time from the Temporary orders within this litigation.
28As per the April 4, 2019 order, he contacted the Peel Supervised Access Centre (PSAC) and completed his registration. He answered the PSAC’s additional questions to complete their inquiries and waited to start.
29He was contacted by PSAC to commence the first visit on June 1, 2019, but this did not happen.
30After June 1, 2019 he continued to attend the Supervised Access Centre for 3 to 4 more attempted visits and each time was informed by staff that his daughter was reluctant to visit with him until July 13, 2019.
31PSAC notes were entered in evidence and show that over 11 attempts only one visit was successful. Most times M. refused to attend citing being afraid of her father, not being safe or having a sore stomach.
32On July 13, 2019 Mr. Q. had his only visit via the PSAC with his daughter. From the evidence at trial, but for about a 10-minute visit outside a car in the parking lot of 12 Division of the Peel Police Services, this has been Mr. Q. and M.’s only parenting time together over the 3-year period of this litigation.
33Mr. Q. describes the July 13, 2019 visit as follows:
At first when M.M. entered the visiting room, she was shy. He knelt down to her level and showed her a backpack that he had purchased for her as a gift.
He asked M.M. if she wanted to draw/colour and M. agreed. They coloured in a Cinderella book and he drew/painted an owl for her at M.’s request and coloured a unicorn.
34Photos of them both were entered into evidence at trial. These were taken by staff and sent to Mr. Q. and to Ms. M. The notes from this visit were entered at trial under Notice in advance as business records . These notes reveal that Mr. Q and his daughter on this day chatted about how she learned to draw and the care she was providing to a neighbour’s cat, and her plans for her next birthday.
35After this painting/drawing, they watched movies together and M. asked a few questions of her father. At one point, M.M. asked her father if he has a child and Mr. Q. replied yes and “her name is M.,” referring to her. During this visit M.M. asked her father if he could come over to her house. Mr. Q. asked if she would like this and M. nodded in the affirmative to which the father said they would need to ask M.M.’s mother before planning this.
36When they grew tired of the movies, they moved on to play dinosaurs until it was time to end the visit.
37Upon leaving, Mr. Q. offered his daughter a backpack and a few gifts and she accepted these and said to her father that she would bring these back so they could play with them at their next visit. While Mr. Q. was waiting the mandatory 15 minutes for M.M. and her family to leave the PSAC facility, the staff returned the backpack as Ms. M. refused to take it and asked the staff to return this to Mr. Q. He testified that he was not surprised by Ms. M.’s action but somewhat sad as well. He recalls that upon leaving his daughter M.M. was excited of the prospect of a future visit with him which from all the evidence I heard in this trial did not happen after this date.
38The Peel Supervised Access Centre notes state that when Ms. M. saw the gift items given to her daughter by the father that Ms. M. in front of her daughter handed the items to the staff and stated “This is staying here. We don’t want gifts.”
39Mr. Q. testified that in total he attended the Supervised Access site some 7 to 8 times for an anticipated visit with M. and only one visit happened. He went about 3 other times after the July 13, 2019 visit then received letters from PSAC on October 1st and December 3rd, 2019 indicating that the family file was put on hold and eventually closed.
Police Enforcement Order
40On February 22, 2021, Justice Clay made an order that the Peel Regional Police would assist to enforce Mr. Q.’s parenting time. This order provided weekly parenting time in the community, day visits supervised by the paternal grandmother followed by alternate weekend visits unsupervised with exchanges at Peel Police Division 12. This order had a police enforcement clause.
41Two police officers from the Peel Regional Police Services (PRPS) testified at this trial.
42Constable Fryer testified about a call received by the PRPS and she attended Mr. Q.’s home and spoke to him about the order for parenting time not happening. She then attended Ms. M.’s home and spoke to her. This took place at about 8:00 p.m. and 10:00 p.m. after the time set out in the order for the parenting time to occur.
43Constable Fryer testified that she and two other officers met Ms. M. outside her home’s door.
44Ms. M. was anticipating their arrival as apparently Ms. M. had called earlier to 12 Division as the parenting order set this location for exchanges and on that day Ms. M. reported to the police that her daughter did not want to go to the exchange location. When at Ms. M.’s home, she observed the child M.M. who was behind her mother and did not want to talk with the officers.
45She stated that she observed M.M. was distressed “climbing the door frame.”
46As it was after the time set out for Mr. Q.’s parenting time in the order, the police did not do anything further.
47A second officer, Constable Haywood, testified to his involvement to an attempted exchange for a parenting visit at 12 Division on March 2, 2021.
48He testified that he received a call regarding a domestic dispute and went to the parking lot of 12 Division of the Peel Police.
49There he spoke to Ms. M. first and then to Mr. Q.
50He recalled Ms. M. stating that she tried everything to have her daughter go on a visit, but it was not working. He testified that he was not convinced of her sincerity but admitted he did not know her to evaluate her emotions in any fashion.
51He recalled Mr. Q.’s demeanor of wanting to visit with his daughter if at all possible.
52He testified that he then went to the car where M.M. was sitting in the back-passenger side.
53There he saw an older gentleman in the car that he later learned was M.M.’s grandfather that had attended the exchange location. The grandfather was video recording the events on a cell phone. He recalled the child was aware of the grandfather recording these events and her.
54Constable Haywood asked the grandfather to step out of the car while he spoke to M.
55He recalls asking M.M. about attending a visit with her dad and recalled at trial the following statements from M.M.
M.M. did not want to go for a visit because:
“He has not had any contact with her for 7 years”
He has cuts on his arm.
Notebook, 10 min after the parties left the parking lot.
56His notes from this date filed with the court state the child said:
She did not want to go, and she didn’t want to talk to her dad.
He hasn’t been around so why does he want to see her now.
She is afraid of him.
He has cuts on his hands.
Only bad guys have cuts on their hands.
57He recalled that he attempted to engage M.M. by telling her that he has a scar on his forehead and that did not make him a bad person. To which she responded that she did not know. This had little impact on M. who did not leave the car.
58Constable Haywood testified that when he asked Ms. M. about these statements, she responded that her daughter may have overheard her talking to someone on the phone regarding these issues and that is where she picked up this information.
59Ms. M. when she testified repeated this when questioned
60Officer Haywood then arranged for Mr. Q. to go over to the car where his daughter was sitting to speak to her while standing by the car, while he stood by. He asked Ms. M. to move away and she did by going to the driver’s side of the car as he was going to have Mr. Q. come over to talk to his daughter while standing outside of the car and that he would be there beside the father as well.
61At this point he recalled Mr. Q. went to the car where his daughter was sitting and chatted with her while Constable Haywood was at his side. The officer recalled how M.M. was a lot more open then when the grandfather was in the vehicle. M. began chatting with her father about Pokémon cards that she had as he showed her some cards he had brought for her and a doll as well.
62The officer testified that the more Mr. Q. talked with his daughter the more she opened up based on his observations.
63This was interrupted by the grandfather returning to the car after about 5 minutes in an irritated state according to the officer wanting to return to the car. The grandfather then said something to his granddaughter in a language other than English and she shut down at that point. When the grandfather testified later in this trial, he said that he returned to the car as he was cold and just commented in Polish how very cold it was outside upon entering his car. He was seen during this attempted exchange to be recording the event on his phone . This he suggested he did as he had not seen Mr. Q for many years and wanted something by which to recognize him .
64Office Haywood recalled that through all this Mr. Q. appeared thankful for the 10 minutes or so he had to chat with his daughter.
65Mr. Q. testified that he has taken parenting programs online. He presented two certificates from these programs from the Family Education Centre taken in April 2019 and July 2021. In these sessions he recalled the different parenting strategies reviewed for children aged 0 to 11 and noted that M.M.’s age is one that requires a parent to be patient with a child as their wants are not always aligned with the parent's directions to a child.
66Mr. Q. testified that he attempted to investigate what services would be available to him if M.M. was placed in his care but did not find much available when the child was not with him. He conceded in questioning that he has done little in this regard. Some has to do with the cost of these resources for reintegration and other services were not available if the child is not having contact he stated.
67In questioning, Mr. Q. did agree that if M.M. is placed in his care with any police enforcement that such a process is not what he wants and would be difficult and a bad scenario for M. overall.
68Mr. Q. testified that if his daughter is placed with him, he would maintain her in her current school and programs to maintain this consistency. She would live with him at the maternal grandmother’s home where she has her own room.
Grandmother Ms. L.D. and sister Ms. D.Q.D.
69Mr. Q.’s mother Ms. L.D. and his older sister Ms. D.Q.D. testified. They both indicated their support for Mr. Q. and stated they could be of practical assistance to him in caring for M.
70They both confirmed that Mr. Q. is stable in managing his health and they have never feared from him while living with him.
71The grandmother Ms. L.D. did provide some historical testimony that predated the last order as background. She suggested that she observed the parents’ early relationship to be toxic.
72When Ms. M. testified, she concurred with this although placing the cause on Mr. Q.
73The grandmother testified that she is 56 years old and works at Pearson International Airport. Mr. Q. is her only son who lives with her and her husband and younger daughter.
74The sister Ms. D.Q.D. is now married and lives with her husband.
75Her main testimony was that she wanted the court to know that she was there to assist her brother in any way possible to have parenting time with M.M. That her brother was always kind and supportive to her and she sees that he is also like that with their younger sister who still resides with him at the grandmother’s home.
76That she always felt close to Ms. M. when she lived briefly with her family years ago and she recalled on one occasion after the parent’s separated she saw Ms. M. and her niece briefly in a mall where she was working at the time and they exchanged pleasantries. After this encounter she testified that she texted Ms. M. who responded that she did not want to communicate and that she should lose her number.
77This I presume I was told of to bolster the suggestion of Mr. Q. that Ms. M. wanted nothing to do with him or his family historically and today.
78When Ms. M. testified, she denied telling Mr. Q.’s sister to lose her number and stated that she remembers pleasant exchanges with her and has no ill feelings towards her or members of Mr. Q.’s family.
79The grandmother stated that she has seen her son for years attempting to have a relationship with his daughter and that the family has always bought things for M.
80I heard about the family having purchased items for M.M. but that these never reached the child. The explanation for this was that Ms. M. had rejected Mr. Q.’s assistance and made it known to the family that she wanted nothing to do with them, hence these items/gifts remained at the grandmother’s house then eventually were sold and other objects purchased in the anticipation for a parenting time to eventually occur I was told.
Grandmother and December 7, 2020 Order of Justice Clay
81Ms. L.D. testified about her involvement in following through with paragraph 4 of the December 7, 2020 Temporary Order of Justice Clay during the case management of this file. That order provided for her to pick up M.M. at her school on January 15, 2021.
82She testified that she attended the school and was provided a quiet space by the Principal to meet with M. The Grandmother explained that despite her best efforts to explain to her granddaughter about all the preparations the family and her father arranged to greet her at the house, that M. refused to go. She showed M.M. pictures of the family members, but this had little effect.
83Ms. L.D. in her testimony stated that M. had said to her that the reason she refused was because of “all the cuts” – referring to cuts on her father’s arms that M. noticed at the one visit with her father on July 13, 2019 at the Supervised Access Centre.
84The grandmother testified that upon hearing this she asked M. to explain what she meant, and her granddaughter stated, “I don’t know.”
85At this point the grandmother testified that she didn’t want to pressure M. and left the school and while she exited she saw Ms. M. in a car in the parking lot. Ms. M. denied being there at that time of the day and testified that she was at a friend’s home and later that day the friend’s husband assisted her in picking up her daughter when the school notified her that the visit did not happen.
86The grandmother Ms. L.D. also testified to what she witnessed regarding her son’s attempts to exchange M. between the parents at 12 Division of the Peel Police as directed in Justice Clay’s Temporary Order.
87She recalled she attended 12 Division along with her son 7 to 8 times and M. refused to leave her grandfather’s car. I heard in Ms. M.’s evidence that at this time she has no valid license and her father was assisting with drives.
88She recalled her son attempting to conduct exchanges and M.M. refusing to go.
89She testified that Ms. M. did not provide the space to Mr. Q. when officer Haywood was helping on one occasion and asked her to step away from the car. The grandmother stated Ms. M. circled the car and went to the other side in view of the child.
90Ms. L.D. also testified that during the period of attempting the 12 Division exchanges, Ms. M. had texted her once stating “baby locked herself in the bathroom” refusing to leave the home and she missed several Uber drives and would not be coming. Upon receiving this news, she testified that her son asked for the assistance of the police to enforce J. Clay’s February 22, 2021 order. Upon doing so the police asked him to wait for news from them on an adjacent street to where Ms. M. and her daughter resided with the paternal grandparents as a police officer would attend at this home. She testified that she accompanied her son and waited as directed by the police and while doing so she saw her granddaughter in the company of her grandfather walking to a park nearby to play and that visit did not happen.
91On another of these 12 Division attempts to exchange the child, the grandmother testified that Ms. M. arrived with the child and stated that she could not let M. go with her father as the child did not have proper winter boots or socks and was in her pajamas, although the grandfather took the child to washroom. In Ms. M.’s testimony she denied this event.
92When cross-examined the grandmother was questioned if she recalls arguing with Ms. M. while M.M. was in the car and could see or overhear the adult’s dispute. She recalled an incident where she claims Ms. M. was raising her finger to her. She did recall telling the maternal grandfather in response to a suggestion that he was not supporting his daughter that her son has been paying child support for some time.
93She agreed that such adult arguments in front of her granddaughter was not the best but both sides shared this fault.
94She denied that her son was adversely affected by his mental health and that he was managing this well and had, at times, depression in the past, but this was years ago. She stated that she never locks her doors to bedrooms in her home as was suggested and that she has no concerns regarding her son.
Peel CAS worker Ms. M. Webster
95Ms. Webster testified that she has been working with Peel CAS from June 2017.
96She became involved with this family on February 4, 2020 when the file was assigned to her team. At the time Justice Clay had made a request for PCAS to investigate his concerns.
97His endorsement that formed part of the Trial Record reads that he had concerns regarding the child M.’s mental health and wellbeing given conflict over lack of parenting time.
98Ms. Webster testified that Ms. M. had been in contact with PCAS on her own initiative starting in November 2019 regarding her concerns over a custody/access dispute and court case with Mr. Q.
99The PCAS notes from November 29, 2019 to February 25. 2021 were entered in evidence through Ms. Webster and Notice was served under the Evidence Act and Family Rules that Mr. Q., the father, would be relying on the contents at trial.
100Ms. Webster in direct evidence was asked to review her notes regarding her work with this family. She reviewed her initial transfer meeting from the previous intake/assessment worker, Ms. Halfyard, and the mother, Ms. M., on February 4, 2020.
101She recalled on cross-examination about this meeting setting out the reasons PCAS was asked to work with the family and their daughter as well as the PCAS expectation to meet with Ms. M. every 30 days and as well as to have private meetings with her daughter M.M.
102Ms. Webster testified that at this transfer meeting Ms. M. spoke of her concerns regarding the court case and parenting time visits for her daughter and Ms. Webster met M. very briefly and M.M. appeared pleasant but shy. At the conclusion of this meeting Ms. M. was open to permitting Ms. Webster to call and set up a next meeting.
103Ms. Webster then testified to her attempts to set up a next meeting and meet as well with the child from February 11, 2020 to May 14, 2020 with no success. Ms. Webster went through each contact log some 15 to 17 times in this period in which she left messages via phone calls/text messages and on February 26, 2020 during this block of time went unannounced to Ms. M.’s home in an attempt to set up a meeting. Ms. Webster reviewed the different reasons Ms. M. provided when she either returned the call or was reachable. These ranged from M.M. being sick, or them both, or her need to assist her parents with their medical needs.
104Ms. Webster testified that on May 19, 2020 she spoke to Ms. M. and asked to speak to the child and Ms. M. handed the phone to her daughter. The notes for that day indicate that Ms. M. reported to the worker that her daughter does not want to take the phone.
105Ms. Webster testified that Ms. M. on May 19, 2020 sounded frustrated in tone with her and what she said. Ms. M. stated as set out in the notes that she had not signed up for working with PCAS every 30 days and reviewed with Ms. Webster that her daughter was seeing her family doctor and a psychiatrist and that once they reported to PCAS that should be sufficient. Ms. M. repeated that she has done everything to encourage her daughter to attend visits and that when her daughter informed Ms. Halfyard, the previous worker that she...“did not have a father” this was her daughter’s way of avoiding the subject.
106When asked if the Psychiatrist report was provided to Ms. Webster, she recalled asking for this, but it never came her way nor consent to speak to this doctor but did receive consents to speak to the OCL investigator and M.M.’s family doctor, Dr. Bhandari.
107After the May 19, 2020 telephone contact, Ms. Webster stated that from June 12, 2020 to August 12, 2020 another 5 attempts were made to communicate with Ms. M. and another unscheduled home visit was attempted on which day she left a letter for Ms. M. asking to meet. Then again contact on September 9, 2020 leaving voice messages that it was urgent to meet, with no results. Again, October 1, 2020 leaving a voice message and at this point she was advised in a supervision meeting to contact the investigating OCL clinician regarding parenting time visits.
108Ms. Webster went on in her testimony that she then reached out to mom again on November 5, 2020, and on December 10, 2020 Ms. Webster was able to speak directly with the child M. Ms. Webster’s notes indicate M.M. stated her father cuts himself and she has no dad.
109Ms. Webster in both her main evidence and cross-examination explained that she provided to Ms. M. some suggestions/options around the parenting visits for M. to feel more comfortable such as asking for close friends and family to assist to set the tone. Ms. M. reported and revealed that she had not informed her family with whom she lives of this ongoing litigation and the father’s requests for visits with their daughter.
110Ms. Webster in answering questions in cross-examination stated that other supports to mom were not put in place as Ms. M. did not have contact with her to permit these to be established.
111These could have been family counselling options and/or a Child Youth Worker coming to the home to meet the child and work with them both, play therapy and other resources that would be available to meet M.M.’s needs if they could be assessed. She answered that although she is on leave from PCAS at the moment, she believes PCAS would have funding for some of these services and these options are available to families.
112Ms. Webster testified in cross-examination that she spoke to the OCL, Mr. Prajapat, who conducted the section 112 report filed in this matter, approximately 5 times, and Dr. Bhandari.
113But for the emotional harm that M.M. is experiencing in this litigation surrounding how the visits with her father have been managed, the PCAS has no concerns with either parent caring for and parenting M.M.
Dr. Bhandari
114Dr. Bhandari is both the mother’s and the child’s family doctor.
115He testified that he has seen M. about 25 times from January 2020 when she was taken on as an official patient. M. was seen as a walk-in patient in August 2019.
116He gave testimony on his notetaking of the child’s comments to him. He stated he has a duty to take notes and these are done electronically and within a day of seeing a patient. His notes show when he wrote or made an entry or whether it was done by the front office staff before he would see a patient.
117He stated that given the sensitive nature of this case he made detailed notes and when M. said something to him on his one-on-one meetings with her, he placed quotation marks on these direct statements from her.
118He did review at trial his notes from some particular visits that he was asked to comment on these as Ms. M. through her counsel wanted these to be relied on for their truth. A voir dire was held on these statements and an oral decision provided accepting some and rejecting others as set out below.
119The doctor testified that but for 4 to 5 of the 25 times M.M. was brought to his office, it was in relation to reporting that the child was having anxiety surrounding going on parenting time visits with her father.
120He recalled that Ms. M. was encouraging her daughter to attend visits and that he referred M. to see a child psychiatrist as M.M.’s clinical status was somewhat outside of his scope being her continuous complaint regarding anxiety. His notes indicate that the request to see a child psychiatrist was made by Ms. M. and he facilitated this request as he agreed with the need.
121Dr. Bhandari did recall when reviewing his notes surrounding M.’s statements to him that beforehand on many occasions the child was present with him and the mother while Ms. M. reviewed her concerns about the court case with him and that child was present when her mother explained and reported on M.M.’s actions and anxiety on days that she is to visit her father.
122When asked how he poised questions to M. when he met with her privately, he stated “something like so what’s going on.”
123During one of these visits the doctor recorded the following conversation with M.M. when asked what was upsetting her. The patient responded:
“I’m mad and sick of being forced of to see you know who.”
When asked if she feels this way occasionally about the situation, patient responded “all the time.”
When asked if she would like to see him again, the patient responded, “of course not.”
When asked why she does not want to see him again, the patient responded, “he has been arrested by the police.” When inquired on how she was told, she reports “my mom told me.”
124Before this interview as with many of the 25 visits, the doctor explained that his notes indicate he had an interview with Ms. M. and that her daughter would have been beside her. During this Ms. M. explained ongoing custody issues and that her daughter is increasingly anxious and frustrated and took one hour to fall asleep.
125Ms. M. testified in her main evidence that she claims she recognized this and had taken to phoning and texting to at least the front-line staff her reasons for bringing in her daughter to see the doctor.
126Dr. Bhandari testified that Ms. M. reported that M. was wetting her bed. This was reported to be in October 2020 although again raised at an appointment in April 2021.
Dr. Battaglia CAMH Psychiatrist
127Dr. Battaglia testified that he was asked to see M. based on a referral from Dr. Bhandari.
128He interviewed M.M. and Ms. M. on March 3, 2020 and November 5, 2020.
129His notes indicate and he recalled that Ms. M. explained her concerns about her daughter’s anxiety and bed wetting in June 2019 and January 2020 after attempted visits with Mr. Q. and his family.
130In the one-on-one interview M. reported remembering the scars on her father’s forearm.
131Dr. Battaglia concluded that M.M. was responding to stressful events.
132His notes from his interview with M.M. and her mother conclude that his diagnosis was adjustment disorder in remission, and that the child does not qualify for generalized anxiety or OCD and that she does not have any phobias, depression or problems with her appetite. He did note that Ms. M. is “obviously under a lot of stress.” The doctor concluded that for the child his recommendation is “I have no advice except for a watchful eye.”
133When asked what he meant by this he could add little to this as he found the child was not needing any intervention other than this when he saw her.
OCL Section 112 Reports
134Mahesh Prajapat was assigned by the OCL to conduct the 112 report. His report was in two parts as the first attempt was discontinued on November 23, 2020 and then restarted on December 9, 2020 as per the request of J. Clay to reengage the family and complete the work by January 15, 2021. This was done and the second report filed January 21, 2021. Both reports were entered as evidence at trial as Exhibits 22 and 23.
The OCL’s report reviews the many attempts to engage Ms. M. in this process as well as the details of the telephone interview with the child M.M. on December 28, 2020 as follows:
The records from Dr. Battaglia were received by this clinician from Ms. M. on December 14, 2020.
Three attempts were made to engage M.M. in an interview. These occurred on December 18th and December 28th, 2020 and on January 15th, 2021. Observation visits were not completed as Ms. M. advised that M.M. refused to be on a video call.
During the December 18th, 2020 call, Ms. M. was unsuccessful in her attempts to have M.M. participate in a telephone interview. Ms. M. called this clinician at the scheduled time and she had M.M. in the room with her. This clinician asked for a video interview and Ms. M. stated that M.M. would not agree to be on camera. This clinician could hear Ms. M. ask M.M. to take the phone and M.M. could be heard saying no. Ms. M. continued to encourage M.M. to come to the phone for approximately 10 minutes without success. The attempt was discontinued, and this clinician had a brief interview with Ms. M. Ms. M. stated that the next time she could be available for another attempt to interview M.M. was on December 28th, 2020.
On December 28th, 2020 another attempt was made to interview M.M. and this attempt was successful, however, M.M. did not agree to a video call. Therefore, a successful telephone interview was completed with M.M. on this date.
A short interview was completed with Ms. M. after the call with M.M. on December 28th 2020 and Ms. M. stated that she would like to take M.M. to see her family physician in the first week of January 2021 to seek assistance on how to make M.M. more comfortable with this clinician’s request for interviews. Ms. M. advised she would call this clinician after the doctor’s appointment to make a subsequent appointment for additional interviews and the observation visits.
As there had been no communication from Ms. M. since December 28th, 2020, this clinician contacted Ms. M. through email on January 11th and again on January 12th, 2021 asking to set a time to meet with M.M. Ms. M. replied on January 12th through email and offered January 15th, 2021 as a meeting time with M.M., and this clinician accepted.
On January 15th, 2021 a telephone interview took place with Ms. M. and she advised that she had been trying for a few hours to have M.M. agree to speak to her without success. She stated that M.M. was not agreeing to speak to her further. This clinician then completed another telephone interview with Ms. M.
Ms. M.M. emailed this clinician on January 15, 2021 stating she is not sure what happened with M.M. during this day’s attempt to complete an interview with her. She expressed concern for M.M. stating M.M. becomes angry and frightened when asked to speak about “this situation” and she stated that with time and patience she is confident that M.M. will overcome her fears. This clinician advised that the endorsement stated that all interviews had to be completed by January 15th and as a report has to be written and the matter is back in court on January 27th, it would not be possible to wait further for additional interview attempts.
This clinician completed two telephone interviews with Mr. Q. on December 18th, 2020 and on January 17th, 2021. Mr. Q. was cooperative and answered all questions.
135Mr. Prajapat was questioned by both parents’ counsel and he reviewed his work and recommendations.
136Mr. Q. accepts the OCL’s work and recommendations.
137Ms. M. had a number of disagreements with the OCL report and also in her testimony she denied was she was reluctant and non-cooperative with the investigator and denied statements attributed to her as reported by the OCL, specifically during a second interview on October 1, 2020: Ms. M…“simply advised that there is nothing she can do to get M. to cooperate with either a virtual observation visit or a virtual private meeting. She added that M. is doing well otherwise in all aspects of her life and there is no need to proceed with this assessment as it only upsets M. She added there is no need or value in having M. see her father when she is doing well in all aspects of her life.”
138Mr. Prajapat recalled meeting Ms. M. in the community on March 4, 2020. At the time he was not certain why. He testified that her position was to arrange as little parenting time between her daughter and Mr. Q.
139Ms. M. told him that she will not force her daughter to attend visits and will in general not force her to do anything.
140Mr. Prajapat reviewed his many attempts to engage Ms. M. in his investigation and found Ms. M. disinterested. She was clear that her daughter will see her father when she is ready and overall Ms. M. did not see the value in this process.
141Ms. M. felt that no one was focusing on what was good for her daughter and that she will regress if forced to see her father. She has had no relationship with him and that when her daughter had asked her about the marks she noticed on her father’s forearm during the one visit that she had with him, Ms. M. admitted telling her daughter that her father cut himself with a knife, harming himself.
142Ms. M. testified to this that she was taken aback when her daughter raised this issue with her. She felt caught off guard and felt it was best to tell her daughter the truth.
143Mr. Prajapat agreed that he did not interview Ms. M.’s parents or brother with whom she and her daughter live with and this would have been useful. He also did not have an observation visit between the child and her father which he agreed on cross-examination is the normal procedure for the OCL in finalizing section 112 reports.
144When asked if he had concerns regarding Mr. Q., he indicated that nothing arose from his interviews with the father, and as well Peel CAS was contacted by him and that agency also had no concerns about the father’s ability to care for his daughter.
145He agreed that he only had one interview with the child for about 20 minutes virtually and concluded when asked if he felt M.’s views were independent he said he did not believe they were independent as she has been given information about the case and information about her father from her mother.
146He observed on October 1, 2020 when attempting to talk with M.M. that she was simply not cooperating with her mother rather than being distressed by the prospect of talking with him as if she was simply acting out.
147He agreed that the use of the police to enforce orders is not the best and that if used the police would need to use their judgment in these matters and have the training to assess what is safe in situations.
148He went on to state that the police as well as other agencies, such as the CAS, can be sensitive and should not be seen as negative from the start.
149In response to the suggestion that M.M. would be stressed or react poorly to his recommendations to long periods of time with her father given the limited time she has spent with him, Mr. Prajapat noted that from his investigation and interviews with persons in the child’s life that she has shown a demonstrated capacity to adjust and show adaptation to new people and situations in a positive manner, such as with her school, her visits to the doctors on repeated occasions, and to the CAS that visited with her at her home.
150He agreed that Ms. M. spoke often at her attempts to discipline her daughter for not cooperating with visits and that Ms. M. always stated she encouraged their relationship. He added that as M.’s mother and main caregiver Ms. M. had considerable ability to influence her daughter and that his observations point to Ms. M. distancing the two of them.
151He concluded that given the situation some measures are now required to move the relationship forward with different community resources being employed to coordinate this effort such as social workers at Peel CAS, M.M.’s school and as well the police.
152The OCL was not convinced that given the active campaign by Ms. M. to discourage a relationship between M.M. and her father, that methods normally employed such as reintegration counselling would not be beneficial and allow this situation to continue longer than it should. The OCL conclusion is to get on with parenting time now and there is no magic to this happening and that Ms. M. must change her approach.
153Ms. M. argued that the OCL report should be given little weight. The main reasons for this were submitted to be:
The Clinical Investigator confirmed in his evidence that the Office of the Children’s Lawyer (OCL) provides its investigators with guidelines when completing section 112 Reports which include the following, some of which was not followed completely or time did not permit a proper assessment to be concluded.
The Clinician gathers information by making inquiries about the child from significant persons in the child’s life and obtains the parties’ views, opinions and plans for the child. To do so, the clinician will need a release from the parties, authorizing the clinician to obtain collateral information.
Meeting with the Parties - The Clinician will always meet with all parties on the Order, except in very special circumstances.
Observation visits with the Child - The Clinician will always hold an observation visit with all children named on the Order, except in very special circumstances.
Meeting with the Child - The Clinician will always meet with all children named on the Order, except in very special circumstances.
On page 10 of his Report (found at page 186 of the Trial Record and page 10 of exhibit 23) Mr. Prajapat states that the Applicant Mother has “blocked a relationship” between M. and her father.
Ms. M. resides with her maternal parents and brother who were not interviewed. Ms. M. submitted that interviewing these three people in depth would have provided information in respect to what she has said and done in respect to encouraging M. to see her father.
Mr. Prajapat spoke to M. once, over the telephone with her mother present, for 15 to 20 minutes and concluded this was a great interview. In final submissions for the mother it is argued that one 20-minute telephone interview does not allow an investigator to understand the circumstances surrounding a child’s views and preferences and does not allow the investigator to understand the context behind them.
Ms. M. further had issues with the OCL work and report as follows:
The investigator was struck by the comment of the Applicant Mother in not accepting the gift of the Respondent Father at the Supervised Access Centre. Nevertheless, he did not even see fit to ask the Applicant Mother the reason she did this.
The OCL seems to have interpreted M.’s factual comment that her father does not speak Polish in a way that a 15 to 20-minute telephone conversation does not warrant.
The investigator noted that the comment that the Applicant Mother made to M. about the marks on the Respondent Father’s arm was not child focused. The Applicant Mother acknowledged this at trial. The investigator did not seem to ask the Respondent Father how he would address this. At trial, the Respondent Father was unable to state what he would say to M. about this and would have to obtain professional advice.
The investigator does not address in his report whether a six-year absence of the Respondent Father from M. could have a psychological impact on her. It is assumed that if the Applicant Mother simply influenced M. better, M. would be open to a relationship with her father.
Testimony of the Mother Ms. M.
154She is the mother to M.M. who is 8 years old, having been born in - - 2013. This is her only child.
155From a few months after his daughter’s birth through to today, her daughter’s contact with the Mr. Q. has been very limited.
156M.M. did not see Mr. Q. at all from a few months after her birth until July 2019, a period of 6 years.
157Except for a supervised access visit on July 13, 2019, and their exchange at the parking lot of 12 Division, M. has had very limited contact with her father since then.
158She stated that she believes that children are better off with both parents in their lives.
159That she has encouraged her daughter to connect with her father by writing a letter to him, place a phone call, bring her to the Supervised Access Centre and the police station.
160She stated that in talking to M.M. about going to visit that she told her “this is not going away.” When questioned in cross about the use of this language she indicated that it was not meant in any negative fashion and that she wanted to assist her daughter that Mr. Q. would be in her daughter’s life so she would understand this.
161She gave evidence about her daughter’s school and neighbourhood where she has lived all her life. The street has other children that her daughter plays with.
162Ms. M. noted in her testimony that her daughter has not had sleepovers at other people's homes yet and that but for a visit Ms. M. took for a few days to New York that she and her daughter have not been separated longer than school hours.
163She further explained that since her daughter was about 18 months old that she and her daughter co-sleep. She has talked to a doctor about this and to her daughter as well and she feels that her daughter should take the lead with this rather than force the issue.
164Ms. M. made a point to explain that she does not force her daughter to do things against her will, even things that Ms. M. had excelled in such as music and piano. Ms. M. noted her daughter started and stopped piano and gymnastics and it is her position that her daughter will come around to these at her own pace. “It’s not about me, it’s about her.”
165Ms. M. testified that M.M. has taken to swimming and that Ms. M. considers this “crazy important” and her daughter is proud of this achievement.
166The above parenting style of Ms. M.’s was emphasized as the approach she has taken with her daughter when explaining how she has encouraged M.M. to attend access visits with her father in order that he gets to know her and they can both speak their own hereditary languages being Polish and Spanish.
167Ms. M. also testified that on other occasions she used other tactics with her daughter to prove that she was encouraging her. When reviewing the notes from the 11 attempts to use the Peel Supervised Access Centre (PSAC), Ms. M. noted that she had offered to her daughter rewards as a means to have her daughter go to the Access Centre. In particular, she recalled doing so on the day of the initial tour when M. was promised to be able to go to a store and build her own play bear or on other occasions when she told her daughter they would be going to the library or to a friend's birthday party.
168Ms. M. also testified to returning a gift provided by Mr. Q. to his daughter at the only successful Supervised Access visit on July 13, 2019. In explaining her reasoning Ms. M. gave two reasons. Initially she explained that at the initial tour the Centre staff policy was explained to her that the child should not be bribed as such.
169She also explained that on a previous attempted visit at the end of June 2019 she returned a gift to the Centre staff as she had asked her daughter to thank her father who was waiting inside for a visit and that her daughter refused and did not want to visit on that day. Ms. M. testified that as a punishment, she returned the backpack gift as her daughter was being rude.
170Ms. M. denied the statement recorded in the Access Centre notes that when she returned a gift on the July 13, 2019 successful visit that she stated, “This is staying here we don’t want gifts.”
171Ms. M. did not agree when questioned that her actions in returning the gift after this successful visit set a negative signal or messaging to her daughter.
172Ms. M. testified by way of explanation regarding the return of this gift that at an earlier attempt at a visit at the Supervised Centre on June 15, 2019 she had to discipline her daughter who was being rude when the child was hesitant to visit and did not take up the staff’s suggestion that she could come in to thank her father for a backpack gift he brought for her. The notes from that visit indicate that the staff had shown the gift to M. who accepted it and put it on saying, “I can take this on my field trip.” The notes then record Ms. M. telling staff with M. present “I don’t want her to be bought” and then Ms. M. asked her daughter to take the backpack off and returned it to the staff.
173Ms. M. testified that she lives with her parents and brother and that her daughter and grandfather are very close and have a special bond “both are each other’s worlds.”
Ms. M. stated that although she is close to her family, she did not inform her parents of
this litigation that had commenced in 2018 until January 2021.
174She described her daughter as doing well in school as indicated in M.’s report cards filed. “M.M. lights up the classroom.” M.M. transitioned well into full-time school for J.K. as they had used the school playground in the past and M. was familiar with the school in general and others from the neighbourhood attended the school that was “super/super” close to their home.
175Ms. M. spoke of the criminal charges laid against Mr. Q. for assault against her for events that date back to 2012 when they were dating. Ms. M. stated that as she had called the police to report drive-bys her home and community by Mr. Q. and his family members that she began to notice in 2015.
176Regarding the drive-bys, the grandmother stated that she happened upon Ms. M. while out shopping and this was not planned nor did anything happen. Mr. Q. did admit to having driven by Ms. M.’s street a few times.
177Ms. M. testified that she was afraid of these drive-bys as Mr. Q. had disappeared after the final order in 2014 and now without notice reappeared in her daughter’s life.
178Her concerns were further heightened after a court appearance in December 2019 during which Justice Clay asked her directly for the name/location of M.’s school to attempt to arrange an exchange there as a neutral space.
179She stated this concerned her as she had not disclosed this information to Mr. Q. although he had the right to this information from the last order. The CAS notes reveal that Ms. M. called then CAS worker Ms. Halfyard on December 11, 2019 asking CAS to not reveal the child’s school to anyone nor the fact that she works in the same school her daughter attends. Mother expressed fear that if the school information was shared, she feared the “worst thing happening.”
180Ms. M. called again on December 18, 2019 after Justice Clay ordered the parties use the school as a neutral location for pick-up and drop-off via the paternal grandmother. The CAS notes from this conversation reveal the mother crying during this discussion as she is concerned how to talk to her daughter regarding being picked up by the grandmother “a stranger to her” when her daughter is refusing to see the father via Peel Supervised Access.
181She stated that she met Peel Police officers in December 2019 at a pre-arranged street corner in a police car to report these drive-bys. She met the police outside and away from her parents' home as she stated that she only informed her parents and brother in January 2021 about this Motion to Change and Mr. Q.’s attempts to have parenting time with M. Apparently, it was because of her concern for her parents’ poor health, no explanation was given why she did not inform her brother.
182After reporting her concerns regarding the drive-bys, she explained the officers asked her if Mr. Q. had at any time hurt her. When asked this she explained two choking events from 2012. It was from this exchange of information that the charges were laid.
183Ms. M. was questioned about her 35.1 Affidavit from the initial litigation filed in 2014 in which she did not mention any violence by Mr. Q. and instead stated at page 4… but he has never been violent towards me or our child. Ms. M.’s reply to this was that the events did happen and this is noted in her 35.1 Affidavit dated October 23, 2018 filed in this Motion to Change. She also testified that she was assisted by duty counsel to prepare the 2014 35.1 Affidavit and that statement was that of the duty counsel.
184Ms. M. stated in 2015 when she noticed the paternal grandmother stopped in an intersection close to her home her daughter was with her. She testified that when she noticed Mr. Q. drive by 3 to 4 times her daughter had not noticed and was ahead of her on the sidewalk. She did recall telling M. to be careful regarding strangers so no one could grab her.
185She describes her daughter as shy in the sense of not speaking up and not wanting to offend people. She gave an example of how M. did not speak up to a family friend whom she knew well when asked if she wanted to stay longer at a pool party as she did not want to offend anyone. Ms. M. repeated this to both the CAS and to Peel Supervised Access staff as this example provided by Ms. M. is found in each of their notes filed at trial.
186Ms. M. testified that the following efforts are proof on her part that she encouraged her daughter to see her father and find supportive services to address her daughter’s concerns. Some of these efforts were:
The 11 trips to the Peel Region Supervised Access Program (PRSAP) – observation notes state that Ms. M. asked M.M. to go inside for a little while and see her father.
She had asked the PRSAP to offer some techniques to help with the transition, this is recorded in the notes.
On November 9, 2019, the PRSAP Observation Note states that the mother talked to her daughter about visiting her father while at home and asked her to try to enter the visiting room (p. 105).
On November 16, 2019, the PRSAP Observation Note states that after M.M. said that her father had never been in her life, and that Ms. M. informed her that her father was present when she was born (p.111).
Ms. M. found a doctor for her daughter to see, Dr. Bhandari, and brought her to see this doctor to deal with her daughter’s stress.
Ms. M. arranged and took her daughter to the referred psychiatrist, Dr. Battaglia, on account of her reported anxiety.
Ms. M. took her daughter to see a social worker at CAMH as recommended by Dr. Battaglia. (This worker did not testify at trial and no report from this work was filed).
Ms. M. testified that she took up Mr. Q.’s suggestion from this trial when he stated that she should put a picture of him and his daughter up in their home. She stated she did this a day earlier. It was one of the three photos of her daughter and Mr. Q. taken by Supervised Access staff on the July 13, 2019 visit. She stated that she pinned this in her daughter’s room and that M. when seeing this destroyed it.
Discussion and Decision
In this trial the following questions need to be answered:
Does the evidence establish that a material change has occurred from the date of the last order in 2014? If there has been a material change, the following issues need to be resolved.
If so, does the evidence establish that the child’s refusal to attend parenting time with her father is based on a natural estrangement given the history of parenting time in this matter or is it based on the parenting of Ms. M. such that the result is the child being alienated from Mr. Q .
Depending on how question 2 above is resolved, what Order would be in MM.’s best interest as per section 24 of the Children’s Law Reform Act/jurisprudence in relation to the evidence of her parenting to date and my findings.
Legal Test Regarding Motions to Change
Under Section 29 of the CLRA, the court may change a final custody/access order if there is a material change of circumstances affecting the best interests of the child. This is a two-step process:
The moving party must first meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.
Second, if the threshold is met, the court must embark on a fresh inquiry into the best interests of the child, having regard to all the circumstances in Section 24 of the CLRA. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement. See: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, which has been held to apply to section 29 CLRA cases, see: Allen v. Allen, 1998 14873 (ON SC), 38 R.F.L (4th) 96 (Ont. Gen. Div.).
The requirement of a material change in circumstances means that a change motion cannot be an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its opinion for that of the first judge. It must assume the correctness of the decision and consider only the changed facts since the first order was made. Docherty v. Beckett, 1989 8869 (ON CA), 21 R.F.L. (3d) 92 (Ont. C.A.). The court should allow only a limited look at evidence predating the order to understand how it was made in order to determine if a material change in circumstances has been established. Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.).
Variation of a final order for custody or access is a two-part process. The Ontario Court of Appeal in P. v. G.-P., 2009 ONCA 782, made it clear that a material change must be established first, before any variation or evidence about “best interests” is considered.
As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485, 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional, and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation.
Once the court determines that there has been a material change in circumstances, the court should then look at all the evidence, including the evidence predating the order from which change is being sought. Segal v. Segal, 2002 41960 (ON CA), 26 R.F.L. (5th) 433 (Ont. C.A.).
The aging of a child does not necessarily constitute a material change in circumstances. The change must have altered the child’s needs or the ability of the parent to meet those needs. The last order is presumed to be correct. Wiegers v. Gray, 2008 Sask 10 (CA).
In order to determine if the conditions for a variation exists, the change of circumstances must be material as opposed to trivial or insignificant: Hickey v. Hickey, 1999 691 (S.C.C.), [1999] 2 S.C.R. 518.
187At the conclusion of the trial in closing submissions, it was conceded by Ms. M. that Mr. Q. had established a material change that affects or likely affect the child M. Specifically, she submitted, and I accept the following.
188The Applicant Mother acknowledges that the first step in the Gordon Goertz has been met for reasons that include that the Respondent Father clearly wishes to have a relationship with M.
189In addition I find that since the date of the last order, that the ordered Parenting time in the discretion of the Mother has not occurred and as well the actions of both parents that touch on their daughter’s parenting time with her father, to be an unforeseen material change since the last order.
190In embarking on this second step, there is little dispute that the test to determine decision-making, primary residence and parenting time is the best interests of the child: CLRA, s. 24.
191The best interests test is the only test to be applied. Parental rights, interests and preferences play no role in this determination: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 35-36, 44, 57, 117.
192In order to do this, I must examine the parenting plans for M.M. by Ms. M. and Mr. Q. in the context of the evidence presented in this trial and past parenting and the parenting time that has been ordered but has not happened.
193In doing so the following must be answered:
Does the evidence establish that the child’s refusal to attend parenting time with her father is based on a natural estrangement given the history of parenting time in this matter or is it based on the parenting of Ms. M. such that the result is the child being alienated from Mr. Q.
Alienation
194In H.B. v. M.B. 2018 ONCJ 916, Justice Clay at paragraph 40 of this decision succinctly reviewed the following leading authority on the issue of alienation of a child from a parent:
The term “alienation” is a loaded one in family law cases.
In Fielding v. Fielding, 2013 ONSC 5102 the Honourable M. Justice H. McKinnon qualified an expert to provide opinion testimony on theory and research pertaining to parental alienation and allowed certain portions of her generic report into evidence.
Justice H. McKinnon noted at paragraph 134; ….a generic report focuses on what is parental alienation, not on what is not parental alienation….by …(receiving a report)….describing what parental alienation is, the court can, on its own, differentiate between alienation and realistic estrangement.
She went on to state.
Part of the generic report listed 17 alienating strategies which foster unjustified rejection of the other parent and eight behaviors 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.
Dr. 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 stepparent 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.
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.
Justice Clay notes in H.B. v. M.B. 2018 ONCJ 916, at paragraph 43,
Alienation then must be distinguished from realistic estrangement. In many, if not most cases, the lack of a relationship between a parent and a child can be attributed to realistic estrangement. In those cases, the child has experienced negative behaviour by a parent either towards the child or the other parent that causes the child to independently form the view that they do not wish to have a relationship with the estranged parent. In true alienation cases there is an absence of an objective reason for the child to reject the other parent.
195At one stage during cross-examination when questioned if she had influenced her daughter with negative statements or portrayals of Mr. Q., Ms. M. stated, “No if I told her anything it would come out.”
196I found Ms. M.’s evidence at trial, when set against all the evidence, not to be convincing.
197I find that there is credible evidence from a number of sources that M.M. has been alienated from her father by Ms. M.
198This finding does not need expert evidence to assist the court 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.”
199I also find that Ms. M. might not actually recognize that she has done this and that her unfounded fears of Mr. Q. and his efforts to have a relationship with his daughter after some six years of little to no contact has sent her down this path.
200There is no evidence that Mr. Q. was ever abusive to the child and the allegations that led to the assault charges against Mr. Q. are alleged to have occurred in 2012 before the child’s birth.
201The child M.M. having had no contact with her father that she remembers, would only have gained knowledge from her mother about Mr. Q. and of what to expect from him as a father.
202In terms of what M.M. knows of father figures is from her school experience and home life. The evidence from Ms. M. is that her daughter lives with her and her parents and brother and that within this family structure that the caregiving from the grandparents to M.M. is a kind and supportive model to her daughter.
203Ms. M. testified that her daughter and the maternal grandfather are “each other’s worlds,” showing how close they are. I also did not hear of any negative information about the other family members that would cause M.M. to have negative views or attitudes toward them as caregivers. So why does M.M. hold such negative views of her father?
204I recognize that M.M. would have some natural uncertainty about her father given that there has been little to no regular parenting time between them. She has from the testimony of Ms. M. seen her friends with their fathers and would have seen how a father parents’ friends in the neighborhood and her mother’s family friends.
205I have noted that Mr. Q. and M.M. have not had a relationship for some six years before his filing this latest Motion to Change and in that sense, he was not known to her. As such it would take time and good parenting to grow their relationship and trust. This the child M.M. has done with other new people in her life as was pointed out by the OCL, Mr. Prajapat, when questioned. He noted that M.M. has successfully accepted her school setting and met and worked with Dr. Bhandari and Dr. Battaglia. M.M. was also prepared and did meet with a CAS worker, Ms. Halfyard, whom she had only met for the first time in December 2019.
206The key to all the above examples of M.M. accepting these people is the direction and signaling provided to her by her mother Ms. M. that it was permitted to do so.
207Ms. M. did point to her statements in front of staff at the Peel Supervised Access Centre, Peel CAS workers, and Dr. Bhandari and Dr. Battaglia as proof of her efforts to guide her daughter to visits with Mr. Q .
208I find that Ms. M. in her testimony reaches for different explanations as to why her daughter has adopted a negative attitude towards Mr. Q. and why her daughter has made the comments to others that she has.
209Ms. M. flatly denied influencing her daughter, or at times suggested her daughter may have overheard her talking to friends about the case and Mr. Q. over the phone in their home while Ms. M. was speaking in her room. Ms. M. gave this explanation at trial and it was also provided to the CAS workers who recorded the same in their notes.
210I find that the evidence reveals the following:
Direct statements by Ms. M. to her daughter that created a fear that Mr. Q. was different, dangerous and a stranger. Even if I was to accept that Ms. M. was scared regarding the drive-bys that Mr. Q. and his family admitted to doing five to six times, such concerns should be shielded from her daughter rather than emphasized.
Ms. M. took steps to counter each step taken by the case management Judge, Justice Clay, to assist her daughter to grow into a relationship with her father.
In so doing Ms. M. exposed her daughter to repeated situations or meetings with doctors and the Peel SAC in which the child was influenced against her father.
211Ms. M. repeatedly stated in both her direct evidence and cross how her parenting philosophy for M. surrounding things that her daughter is not happy or comfortable with is to let her grow into/let her be. Examples she provided were:
Co-sleeping
Piano
Gymnastics
Seeing her father
212I do not accept that Ms. M. simply approached this issue of visits with Mr. Q. with this laissez-faire manner that she claims is her parenting style. Rather I find in my review of the evidence that a picture emerges of Ms. M.’s fundamental resistance to allowing a relationship to develop between M.M. and her father, Mr. Q.
213Ms. M. takes issue with the OCL report in which Mr. Prajapat states that her goal was to limit any parenting time between her daughter and Mr. Q. Ms. M. rejects this as being accurate. However, a review of her actions with other third parties in this file and steps she took to counter the court's work reveals an opposite landscape.
214In April 2019 Justice Clay made an order that access should occur through the Peel Supervised Access Centre PSAC and in August 2019 he graduated these access visits from the PCAS to the paternal grandmother supervising the father and daughter’s parenting time in the community
215Evidence at trial showed that Ms. M. was slow at registering with the PSAC which delayed the start of this process for several months. At trial she laid part of the blame for this on her then lawyer as well as suggested on several occasions that her previous lawyer did not explain why she was to work with the CAS and OCL as requested by Justice Clay. For Ms. M.’s needs it was sufficient that her daughter was seeing a doctor and was seen by CAMH staff to capture in their notes what the child felt about her father and the “encouragement” of Ms. M. to her daughter.
216The evidence shows that after this order M.M. did not want to visit initially but did visit her with father on July 13, 2019, and this went well. The evidence from Mr. Q. matches the positive interaction as set out in the filed PSAC notes that he and his daughter had on that day.
217This was a major day and development in their nascent relationship on which to build trust and love between them. Instead from minutes after this visit Ms. M.’s words and actions in front of her daughter took from her daughter this opportunity.
218Photos of M.M. and her father colouring together and smiling for a few pictures were entered and show a relaxed father and child. This was the only successful visit over the 2.5 years that this file has been before the court.
219Ms. M. reacted to this July 13, 2019 visit by returning the backpack and other gifts provided by Mr. Q. to his daughter. Her daughter was aware of this action as the gifts were taken from her immediately by her mother and returned. For a child this action is a significant statement and a clear signal that her mother is not pleased with this development.
220Ms. M. claims she did this as she was told not to bribe a child to attend access. However, she also stated in questioning how she did, as parents tend to do, offer events or things to encourage her daughter. This explanation is not credible in the context of the overall evidence in this trial.
221The evidence in the Supervised Centre notes shows that on the next scheduled visit in August 2019 that M. refused to attend and kept looking towards her mother for direction when asked by PSAC staff if she would enter to visit with her father. It was on this occasion that Ms. M. told the staff that she essentially is there to speak for her daughter rather than permit M.M. to answer a few simple questions when the staff were encouraging M.M. to visit. This shut down that visit and M. did not have a successful visit with her father from this date through to today.
222Ms. M. testified that her daughter on July 13, 2019 was actually scared but did not speak up. This Ms. M. also repeated to CAS staff and is found recorded in the notes filed at trial. Again, this is not credible.
223All the other evidence on July 13, 2019 points to a fun visit in which her daughter and father were slowly getting to know one another in their own way through small conversation and play.
224On November 5, 2019 Justice Clay made an order requesting that Ms. M. contact PCAS regarding counselling for her daughter. The notes from PCAS filed from November 28, 2019 show that Ms. M. called and stated that Mr. Q. was seeking access and that Ms. M. was worried about her daughter who was to have supervised access. She described the father as mentally unstable and a “cutter” and stated that the father threatened to take her child away from her and she was fearful as the paternal family had been seen doing drive-bys in her area and that she has informed the police and the child’s school about this.
225The above evidence is a clear record of how Ms. M. viewed Mr. Q. and how she wanted the world to view him as well and this was after many months of Mr. Q. attending the Supervised Access Centre and waiting to visit only to be told visits were not going to happen on most occasions. This view is eventually adopted by her daughter who views her father as a stranger out to remove her from her mother for nefarious reasons.
226On December 17, 2019 Justice Clay set up a meeting in a neutral location on January 15, 2020 for the paternal grandmother to attend at M.’s school to pick-up the child for a community visit with her father and asked Peel CAS for a reporting letter to the court regarding their involvement with this family.
227Ms. M.’s response to this direction of the court, as revealed in the CAS notes filed, was to call the PCAS worker Ms. Halfyard on January 7th and 8th, 2020 leaving messages regarding the need to talk.
228On January 9, 2020 Ms. Halfyard returned Ms. M.’s calls. The CAS notes from this conversation reveal Ms. M. crying during this discussion as she is concerned and suggests she is unsure as to how to talk to her daughter about being picked up by the grandmother “a stranger to her” when her daughter is refusing to see the father via Peel Supervised Access.
229During this conversation Ms. M. reported to CAS that she would like an unbiased third-party present, such as a doctor, when she tells her daughter about the impending visit that will start at the child’s school, so that this person can document what she is saying to her daughter. This Ms. M. states is because she is being accused of not encouraging her daughter to visit.
230Ms. M. informed the CAS that her daughter has been seeing a family doctor and will talk to her daughter about this pending visit in front of the family doctor, Dr. Bhandari.
231The worker Ms. Halfyard eventually was able to connect with Dr. Bhandari on January 16, 2020, who reported the following regarding the visit to his office regarding the upcoming pick-up by the paternal grandmother at her daughter’s school as set out in J. Clay’s order for January 15, 2020.
Ms. Halfyard’s notes read:
Dr last saw M.M. on Monday January 13, 2020 as mother requested doctor be present as mother discussed with M.M. that paternal grandmother would pick up M.M. from school for a visit with father on Wednesday.
Dr reported that on Monday, M.M. appeared well before he entered the examination room.
Dr observed mother to explain to M.M. the request that M.M. go with grandmother to have a visit with dad.
Dr observed M.M. to say, “I don’t want to,” and shook her head “no.”
M.M. responded she doesn’t want to go then began crying.
Dr said he asked M.M. why she doesn’t want to go visit with father and M.M. said it’s because of the cuts on father’s arms, and said she is scared, she believes father will take her away from mother.
Dr asked M.M. why she believes this, however M.M. did not respond.
Dr observed mother to reassure M.M. that if she didn’t feel okay during the visit, she could ask paternal grandmother to bring her back to mother.
Dr observed that M.M. became silent, tearful, and hugged her mother.
232What is significant from this record and conversation with Dr. Bhandari is that he was unaware that the mother, Ms. M., was the one who told her daughter that it was Mr. Q. the child’s father that cut himself with a knife causing the scars or “cuts on the father’s arm” that the child reported to him.
233When Dr. Bhandari testified at trial he was asked if the mother had informed him of her telling her daughter about the father cutting himself to which Dr. Bhandari answered, no she did not.
234As noted above he also testified at trial and his notes do not reveal that Ms. M. spoke to him about this issue of the scars on the father’s arm and how to best address this with her daughter in a way that a 6 year old would understand.
235In questioning of Ms. M., she confirmed that she told her daughter how Mr. Q. used a knife to cut himself and this is what caused the scar. She added that she did this when about two weeks after the July 13, 2019 visit her daughter asked her about the scars.
236She testified that she recalls her daughter who was 6 at the time being persistent in wanting to know about these scars and Ms. M. stated “she was not going to avoid it anymore” and told her then 6 year old daughter to “satisfy her imagination,” rather than let this linger in her young imagination.
237This admission was forthcoming as Ms. M. had also admitted to telling her daughter of the cause of the scars in an earlier conversation with the CAS worker Ms. Halfyard as early as December 11, 2020 during a face-to-face-home visit with mother and a private meeting with the child M. The notes from this date Ms. M. reported amongst other things the following:
Mother advised that M.M.’s father did not have regular access until the past year when he requested access. Mother stated that in the court documents mother indicated her concerns about father’s mental health as he has been diagnosed with bipolar disorder and has displayed behaviours such as cutting himself. Mother stated that in June, the court ordered supervised access between father and M.M. at a Supervised Access Centre.
Mother stated that a few days after the access visit with father, M.M. asked mother about cuts on father’s arms. Mother stated that M.M. told her she saw cuts that were straight lines on father’s arms, and that this scared her. Mother stated that father does not cut himself, and mother has observed in the past that father will use a knife to cut him arms. Mother stated that she was unsure how to explain this to M.M. however did not want to lie to M.M. so stated that father does cut himself.
Interview with M.M.
I met privately with M.M. in her bedroom.
M.M. denied that she ever feels sad or scared at home and did not identify anything that she wishes were different at home. I asked M.M. to tell me about dad. M.M. stated, “I don’t have a dad,” then stated, “but my mom has a dad, and her dad is my grandpa.” M.M. stated that she doesn’t have a dad because she “never met him.” I asked M.M. about going to a centre to meet dad. M.M. stated that she did go to a centre, and her dad was there. I asked M.M. what she thought of the centre. M.M. stated that she was scared at the centre. I asked M.M. what was scary about the centre. M.M. did not respond right away. I asked M.M. how she knew she was feeling scared, and M.M. stated, “I don’t know.” I asked M.M. what it was like to meet dad, and M.M. stated that she saw dad had a cut on his arm. M.M. showed writer where the cut was on dad’s arm, pointing to her left forearm. M.M. stated that the cut was a straight line. M.M. stated that the cut scared her. M.M. then excused herself from the interview as she said she needed to go pee.
M.M. returned. I asked M.M. what she did when she felt scared at the centre. M.M. stated that she told a lady who worked there but they didn’t do anything. I asked M.M. what she did at the centre. M.M. stated that she played with some toys and coloured with dad while she was there. M.M. stated that colouring and playing at the centre was “okay.” M.M. stated that after mom picked her up, they went to the library and she didn’t feel scared. M.M. stated that she told mother she felt scared. I asked M.M. if she has seen dad since and M.M. said no., I asked M.M. if this was the first time, she met father, and M.M. stated that she met him when she was younger but she doesn’t remember. I asked M.M. what she thought of meeting with dad again, and M.M. stated that she did not want to as she felt scared. I asked M.M. if there was anything that would help to make her feel less scared when visiting with dad. M.M. stated that she would feel less scared if mother was nearby. M.M. did not identify anything else that she thought would help her to feel less scared.
I asked M.M. if she has any worries. M.M. stated that she worried her dad will take her away from her mom. I asked M.M. why she thinks this might happen. M.M. stated that her mom told her that dad cannot take her away from mother, and that she should tell the teacher or mom if a stranger or dad tries to take her.
238I find that Ms. M. knew what she was doing and was prepared to allow the child’s doctor to record the child’s statements and have the doctor also make notes that suggest her so-called encouragement to her daughter for the record.
239What is also significant and revealing from the above is how Ms. M. was prepared to have her daughter repeatedly seen by doctors to be questioned about her feelings about her father or her reasons for not wanting to visit, as Ms. M. had wanted these professionals to have a record of her encouraging her daughter to visit the father. Ms. M. also suggested that her daughter had a mental diagnosis of anxiety because of the visits.
240I find that at home and/or in the community Ms. M. had sowed the fear in her daughter about her father, regarding cutting, he being arrested by the police and that Mr. Q. was going to take her from her mother like a stranger would.
241It is not surprising that her daughter reported to the CAS and to the family doctor and doctor at CAMH her feelings regarding visits and also answered that she was told about this from her mother. I find M.M.’s feelings regarding visits with Mr. Q. were instilled in her and not independent views that she objectively developed based on her observations of Mr. Q.
242Dr. Bhandari testified that but for four or five times out of about 25 visits at his office with the child, some 20 doctor appointments centered around the litigation and access visits with Mr. Q.
243It is also significant that Dr. Bhandari testified that the child was present beside her mother at the start of most of these doctor visits while Ms. M. spoke openly to him about her concerns regarding the father and litigation matters when he was recording in his notes the reason for the visits. The doctor also testified that he assumed the child was also beside her mother while his front office staff took the initial notes as to the reason for the visits to his office.
244Ms. M. attempted to mitigate this by suggesting that she recognized this and began emailing her reasons for a doctor visit but provided no proof of this at the trial. This I do not believe she did and is an example of Ms. M. reaching in her testimony at the last minute in trial when caught out which did not assist in her credibility.
245Dr. Battaglia from CAMH stated in his March 2020 notes that the child during a one to one chat told him she remembers these scars on her father’s arm from the one visit in July 2019 some eight months earlier as the reason she does not wish to visit. This is not surprising given the above evidence of how M.M. was exposed to conversations with the family doctor and conversations with her mother for months before.
246When Justice Clay asked the CAS to take on a more active role with this family Ms. M. pushed them away after not being able to engage Ms. Halfyard, the first CAS worker, to assist with her concerns with the father’s requests for visits.
247The CAS notes show how from the initial contact Ms. M. informed the CAS workers that Mr. Q. was mentally ill, “a cutter” and asked them to tell Mr. Q. that he could not take his daughter away from her when Justice Clay ordered exchanges to happen at her daughter’s school. From these CAS notes it reveals that Ms. M. stated to the CAS worker that she felt Mr. Q. was manipulating the court and that his mental health was not being managed as he suggested nor this issue was not taken seriously by the court as well.
248The testimony of Ms. Webster was that effectively Ms. M. told her that she did not agree to work with them and made it difficult for PCAS to meet and assist in this situation. Ms. M. had sought the assistance that she wanted for her daughter from the above doctors and that would be sufficient in her eyes. She was not open to permitting any other viewpoint from entering the discussion. This was a significant squandering of what is a significant resource that could have changed the course of this litigation in M.M.’s best interest.
249The same pattern emerged with Ms. M.’s unwillingness to work with the OCL, another service that Justice Clay requested to assist the family and the court for her daughter’s well-being.
250When Ms. M. testified she stated that she was not certain what the OCL was suggesting when in his testimony the OCL clinical investigator said that Ms. M. was abdicating her potential authority as a mother to M.M. and that Ms. M. could be able to influence her daughter in this situation if she wanted to.
251When I had an opportunity to ask Ms. M. some questions, I did review this aspect of her parenting of her daughter in the context of signaling things that she wanted from her daughter in general and in this litigation.
252I asked if she felt she could communicate with her daughter around being pleased or upset with her just with a gaze or a look that parents so often do across the room at their children.
253To this Ms. M. eventually agreed she could. This I pointed out is what she has been doing with her daughter in the context of this file and one example of this was when she gave her daughter permission to speak with the first CAS worker, Ms. Halfyard, during the face to face meeting on December 11, 2020. On this occasion Ms. M. did not correct her daughter’s impression that Ms. Halfyard was a family friend and during which M.M. was encouraged by her mother to speak to Ms. Halfyard and was open with Ms. Halfyard and told her that Mr. Q. could not take her away from her mother, equating him to a stranger who might do the same. M.M. went on and told Ms. Halfyard that her mother told her that he, (Mr. Q.) could not do this.
254I find this and other situations as examples of M.M. being given permission by Ms. M. and Ms. M. using her influence to ease her daughter into situations that suited Ms. M.
255Ms. M. found the means and way to have her daughter successfully visit the doctors on many occasions as this suited Ms. M. Yet, somehow, she had no ability or means to do so and no influence over her daughter when it came to do the same with Ms. Webster, the second CAS worker, the OCL and with Mr. Q., the father, as requested by the court.
256I find Ms. M.’s suggestion that she takes a wait and see attitude with her daughter on issues that upset her daughter not to be credible and an example of her reaching for thin reasoning to explain her actions in this litigation.
257How then does her daughter have clear disdain register in her voice toward her father if not told by Ms. M. as captured by Dr. Bhandari in his notes below:
When questioned on what may be upsetting her; patient responded, “I’m mad and sick of being forced of (sp) to see you know who.”
When asked if she feels this was occasionally about the situation; patient responded, “all the time.”
When asked if she would like to see him again, patient responded “Of course not.”
When asked why does she not want to see him again, the patient responded, “He has been arrested by police;” when inquired on how she was told, she reports “My mom told me.”
When inquired on whether she would be willing to do a phone call, to try and establish a relationship alone and/or with mom, patient responded by shaking head side to side.
When inquired on whether she feels safe when she is with her mother, the patient responded by shaking her head in an approving manner.
258Contrary to Ms. M.’s assertions that she did not negatively influence her daughter against Mr. Q.,…“No if I told her anything it would come out,” I find that she did as revealed in the evidence in this trial.
259As well that her actions were done with a degree of understanding on her part as to what she was doing and that it amounts to the poisoning of her daughter against Mr. Q. and amounts to what I find to be alienation behaviour against Mr. Q.
260Given my findings above what Order would be in M.M.’s best interest as per section 24 of the Children’s Law Reform Act/jurisprudence and in so doing the court should consider the matter afresh without defaulting to the existing arrangement. See: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, which has been held to apply to section 29 CLRA cases, see: Allen v. Allen, 1998 14873 (ON SC), 38 R.F.L (4th) 96 (Ont. Gen. Div.).
261Mr. Q. seeks that M.M. be placed in his care as her primary residence with decision making authority and with limited parenting time with Ms. M.
262The central issue with this request is how would M.M. react to such a change if ordered and is this consistent with her best interest as set against the criteria in the Children’s Law Reform Act that I am directed to consider in these matters which I review below.
263I have no assessment of M.M., such as her psychological functioning and resilience to change.
264The CAMH assessment did not conclude that M.M. met any psychiatric illness although she was reacting to stress. The source of this stress is around the visits with her father. I find this stress could have been because of messaging she is receiving from her mother and the child’s confusion in attempting to process this in general and during visits about the same with her family doctor repeatedly as the evidence reveals.
265Ms. M also testified that she did not inform her parents with whom she and her daughter live of Mr. Q Motion to change and Court ordered parenting time until Jan 2021. She claims this was to avoid stress for them . My question is what she told her daughter not to say and talk about at home with her grandparents after the many attempted visits and repeated doctor’s appointments.
266It must be remembered how M.M. and her father got on during the July 13, 2019 visit and how comfortable she was in the 10-minute conversation with her father at the police station as witnessed by the officer until this was disrupted by her grandfather’s return to the car. The evidence also reveals that she has done well with school and doctors, all new situations to her when eased into these new situations by her mother.
267The OCL investigator responded to a question about M.M.’s reaction to visits and changes by stating that she has shown the ability to adapt and adjust and that there is no science to transition when answering questions regarding the OCL’s recommendations for M.M. to spend increasing ramped up parenting time over two to three months concluding in week about parenting time with each parent.
268This is tied into Ms. M.’s willingness to allow a relationship between her daughter and Mr. Q. to develop and Ms. M. providing a positive message to her daughter to do so.
269This is the key and would mean Ms. M. needs to change her attitude towards that of nurturing a relationship between her daughter and Mr. Q. and reverse the damage she has done which amounts to a form of emotional harm to her daughter.
270Is their evidence before me such that I can be assured Ms. M. will do this while M.M. remains in her care rather than my making a more interventionist order and reverse primary residence of M.M. to her father?
271The Ontario Court of Appeal in M.P.M. v. A.L.M., 2021 ONCA 465 has recently commented on the options to a court in these matters and an ordering of the change in a child’s residence. Thornburn J.A. wrote:
34Social science evidence regarding the effectiveness of the reversal of custody orders in cases of alienation is inconclusive: see Nicholas C. Bala and Katie Hunter, “Children Resisting Contact & Parental Alienation: Context, Challenges & Recent Ontario Cases” (2015), Queen's University Legal Research Paper No. 056, online: <ssrn.com/abstract=2887646>, cited in A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1 (“A.M. v. C.H. (ONCA)”), at para. 76, aff’d 2018 ONSC 6472 (“A.M. v. C.H. (ONSC)”).
35As the motion judge in Leelaratna v. Leelaratna, 2018 ONSC 5983, at para. 52, observed, a “large and liberal interpretation of the statutory and regulatory powers conferred upon the courts to make a wide variety of orders with regards to parenting [under ss.16(1) and (6) of the then-in-force Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and ss. 28 and 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12], including therapeutic orders, is also entirely consistent with the courts’ duty to promote the best interests, protection and well-being of children.”
36Although courts retain wide discretion in crafting their orders, custody dispositions are, as a practical matter, often limited in cases of parental alienation. Courts may (a) do nothing, and leave the child with the alienating parent; (b) reverse decision-making and primary residence, and place the child with the rejected parent; (c) leave the child with the favoured parent and order therapy and counselling; or (d) provide a neutral, transitional, placement for the child and order therapy, so as to facilitate a placement with the rejected parent at a later date: see A.M. v. C.H. (ONSC), at para. 110.
37Where a reversal of decision-making and primary residence has been ordered, courts may order that that the alienating parent have no contact with the child for a minimum period: see M.M.B (V.) v. C.M.V., 2017 ONSC 3991; Foley v. Foley, 2016 ONSC 4925; A.M. v. C.H. (ONSC), aff’d in A.M. v. C.H. (ONCA).
272I review below the best interest factors as set out is section 24(1) of the CLRA and in so doing I have considered as directed the primary consideration to M.M.’s physical, emotional and psychological safety, security and well-being.
(1) Factors related to the circumstances of a child include,
(2) (note I have grouped these in a different order than as they appear in section 24 of the CLRA)
24 (3)(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability.
b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life
d) the history of care of the child.
h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.
273M.M. who is now 8.3 years old has the need for stable physical and emotional care.
274She has always lived with her mother in an extended family setting with her grandparents and uncle. Her contact with her father has been in the last few years and only on a few occasions for a few hours.
275The care she has received by Ms. M. overall is not in doubt except for how Ms. M. has exposed M.M. to a distorted view of her father, which is a significant failing in her parenting of M.M. and as such:
276This has denied M.M. of knowing her father and has made her fearful of him.
277This has impacted her emotional stability now and into the future if not addressed. I find this from the evidence provided of how M.M. has reacted to discussions around access.
278It has denied M.M. of better understanding her Afro- Latino heritage on her father’s side as she has known the Polish heritage from her mother’s side.
279It has denied M.M. from developing a relationship with her extended family on her father’s side, paternal grandmother and aunts which M.M. has with her maternal grandparents and from which she benefits. When the maternal grandfather testified, he mainly was there to explain his role at the visit that occurred at the police station. He provided little information about M.M. and their relationship. I have no reason to doubt it is close.
280All reports from CAS, doctors, school and the OCL section 112 report indicate that M.M. has thrived in Ms. M.’s care.
281When asked Mr. Q. also confirmed that he felt Ms. M. is a good mother to M.M. and that she has provided well for her.
282I find that Ms. M.’s plan would address the above noted criteria as historically she has proven this and that all can see how close M.M. is to her and the maternal grandparents.
283M.M.’s connection with her father is practically non-existent and as well with her paternal extended family. All independent reports from PCAS, father’s doctor, the OCL, and his extended family indicate Mr. Q. is capable of caring for his daughter.
284There are none of the concerns regarding his mental health that were discussed in this trial that were present years ago that would impact his ability to care for M.M. although suggested by Ms. M. as he is in receipt of ODSP.
285The evidence shows that when Mr. Q. interacted with staff at the Peel Supervised Access Centre, Peel Police, CAS, and the OCL that he did so in a direct and calm manner. He showed appropriate emotion to what was at times stressful situations regarding visits and was at times frustrated but did not behave in an aggressive or confrontational manner.
286The reports from the one supervised visit on July 13, 2019 and the 10-minute chat at 12 Division Peel Police reveal Mr. Q.’s patience to grow a relationship with his daughter.
287He showed he understood where his daughter was coming from given their history of no contact and showed parenting skills that were appropriate to her age and stage of development. He also showed respect and deference for the role of Ms. M. as his daughter’s main parent when his daughter asked if he could visit her home and he replied that this would need to be arranged with Ms. M. before agreeing to do this or promise the same to his daughter.
288The above interaction revealed that M.M. was comfortable in this supervised setting and interacted appropriately with her father. She seemed pleased with the visit and noted upon leaving and accepting the backpack gift that she could use it for a field trip and could put things in it for the next visit.
24 (3) (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; and
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child.
On this best interest criteria, I have made findings above in this decision that Ms. M. has failed in this regard. In addition, her actions have harmed her daughter emotionally.
See Failure to provide access can be “emotional abuse” and subject to a protection application. Orszak v. Orszak (2000) 2000 22529 (ON SC), 8 RFL (5th) 350 (Ont. SCJ). Other courts have looked at this issue as significant. See also A custodial parent must not just accommodate access, they must facilitate it. Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551.
289Also, where there are equally qualified parents, who would best facilitate access is a significant factor in making custody and access decisions. See: Moreira v. Garcia Dominguez, 2012 ONCJ 128.Where there are equally qualified parents, who would best facilitate access is a big factor. Huisman v. Stafaniw (1997) 1997 24463 (ON SC), 26 RFL (4th) 406 (Ont. General Div.).
290If one parent does not facilitate, or undermines the child’s relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent (a listed best interest’s factor under s. 24 (2) of the CLRA. See: Leggatt v. Leggatt, 2015 ONSC 4502.
291Mr. Q. has stated that he recognizes the important care Ms. M. has provided to M.M., and that his request to change primary residence of his daughter will not necessarily be easy for his daughter.
292I find that Mr. Q. has been passive in seeking professional assistance regarding this part of his plan. When he testified to this he said that several services required the child to be with him and/or had costs associated to their work and that he eventually decided to await the outcome of this trial to plan any third party assistance with any transitional assistance M.M. may require if so ordered.
24(3) (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.
Although I was provided statements from M.M. about her feelings about visits with her father, I don’t consider these to be independent and find that they have been influenced by Ms. M.’s words and deeds.
(f) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage.
Each parent’s plan has benefits and elements that would address these issues in M.M.’s life in a positive manner.
(j) any family violence and its impact.
293I did hear in evidence of an allegation of violence by Mr. Q. against Ms. M. Police have laid charges against Mr. Q. and there are release conditions of non-communication.
294The charges are from 2012 when M.M. was not yet born. M.M. has not witnessed any violence by Mr. Q., and she has not been the subject of violence by Mr. Q. Violence in families that impact any parent/caregiver and children is taken seriously by the court and a factor in assessing the best interest of children.
295In this trial I have not received any other evidence of Mr. Q. being violent/controlling to anyone.
296The charges have not been tried and no findings made. I was presented with general details of events that are said to have happened from which I have not been able to make findings.
297Given the above history this factor has been considered by me I find it does not affect Mr. Q.’s plan to care for M.M.
Allocation of parenting time
24 (6) of the CLRA states: In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.
298From the above I find that my order set out below is required and in M.M.’s best interest.
299My findings of fact from this trial and review of the best interest factors above direct me to change both the sole decision making authority of Ms. M. regarding her daughter as well as, on a temporary basis, the parenting time between each household that M.M. will begin to have.
See:
The decision of A(A.) v. A.(S.N.) 2007 BCCA 364, 2007 CarswellBC 1591 (CA) 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.
300My order puts in place a joint decision-making order between Mr. Q. and Ms. M.
301This is so to signal to Ms. M. and the community at large that Mr. Q. is an equal parent to M.M. This type of order is counter to the thinking as to when these orders may be appropriate.
See:
The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 1625 (ON CA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody (decision-making responsibility) order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can’t be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
302Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511.
303Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 6423 (ON S.C )
304In this matter there exists mistrust between the parents and little historical communication.
305However, there has been no specific conflict over parenting issues that has impacted M.M., and the respective plans of the parents at this stage going froward for M.M.’s care are the same regarding school, medical needs when required, same doctor, and community events. This I heard in evidence at trial .
306I take some degree of comfort from this with my assessment that a reasonable level of communication and cooperation is achievable in the near future.
307I recognize this order will pose a practical problem that will require a work around given the non-communication condition in Mr. Q.’s release conditions as well as the need for the parents to simply learn to communicate in M.M.’s best interest. I do this as Ms. M.’s actions require such an order to be made.
308All the evidence points to Mr. Q.’s ability to properly make decisions for a child. He has been respective to Ms. M.’s role in caring for M.M., he has not been dismissive. I find the fear of this undermining behaviour continuing is from Ms. M. which must now change.
309Ms. M. will need to immediately change her world outlook in terms of how she has approached Mr. Q.’s request to be a parent to his daughter.
310As well Ms. M. needs to carefully measure how she will work with this court’s order which at this stage regarding parenting time shall be Temporary and I believe balanced given the evidence I received in this trial and overall history of care for M.M.
311See Liu v. Huang, 2020 ONCA 450 regarding a court’s ability to make a Temporary order at the end of a trial. In Hewitt v. Hewitt, 2004 ONCJ 325 court did so to obtain better evidence and also done when a temporary order was made for one year with a direction for counseling in Lust v. Lust.
312To be completely transparent if the below ordered parenting time does not happen a further order that is far more intrusive will be made.
313Where a reversal of decision-making and primary residence has been ordered, courts may order that the alienating parent have no contact with the child for a minimum period. See: M.P.M. v. A.L.M., 2021 ONCA 465, at para. 37; Bors v. Bors, 2021 ONCA 513, par. 41.
314I have considered the above and have not gone there today, nor do I necessarily wish to.
315I recall Ms. M. at one point in the trial stating she does not understand how a court makes decisions in these matters and I addressed both parents in reply to this query that they have the ability to assist and direct the court in making orders that are best for their family.
316Here is the opportunity to assist in doing so, albeit with some serious direction to both parents and their extended family.
317Ms. M. toward the end of the trial and through her counsel’s submissions suggested, really for the first time, that she would be able to work with Mr. Q.’s older sister D.Q.D.C., and meet with her and M.M. to discuss connecting with her father.
318This I will accept as a start. Much more will be needed from Ms. M. and immediately.
319From Mr. Q.’s sister’s testimony, she apparently is available to assist her niece in any way in this process and would be willing to work with Ms. M. I have accounted for this in my order below.
320I anticipate they will meet very soon and craft creative methods to immediately have M.M. spend parenting time with her father and his extended family that adheres to the time set out in my order below.
321As for the grandparents and other members of each family I know you love and care for M.M. and each parent. I ask that you all step back for the present and allow the needed steps to happen.
322As for a Police enforcement clause, the Peel Regional Police (PRP) legal counsel, Ms. J. Orabovic was present to provide submissions and filed a comprehensive factum of the law on when such orders should be considered by a court as a final order. This was very helpful to me in considering this issue. The PRP did not take a position on this request. Mr. Q. asks for this order and Ms. M. disagrees with its need.
323I accept the PRP submissions that section 36 of the CLRA should only be used as a tool of “last resort.” It should be limited and not open ended as a long-term solution, on-demand instrument.
324See Patterson v. Powell 2014 ONSC 1419 at para 30, L(N) v. M(RR), 2016 ONSC 809, at para 78 upheld on appeal, see N.L. v. R.R.M., 2016, ONCA 915 and also Allen v. Grenier 1997 14628 ONSC, 145 (4th) 286 (Ont Gen Div) at para 38.
325Finally, in submissions for Ms. M., I was invited to remain as the Case Management Judge in this matter. I have thought of this request and I am of two minds with such a notion in the context of a trial that is supposed to produce a final order for the parties to follow.
326In my order below I have made parenting-time between Mr. Q. and M.M. temporary. Other parts of the order are final. I have done this not to permit discussion about parenting time that shall happen, but rather to permit the order to be flexible to meet both M.M.’s needs and as well be changed such that, if it is not followed, the order shall be far more intrusive.
327Given this, I will make myself available to the parties to assist management of my order to shape the final order, the timeframe shall be no more than the next 3 to 4 months. Beyond this I see no utility of my involvement as this family needs to work on their own with family and community supports to nurture, love and guide M.M.
ORDER:
Final
This decision and Order shall be emailed to both counsel from this trial to provide to the Applicant and the Respondent.
The Applicant and the Respondent shall attend before me on Oct 22/ 21 in court room 202 for case management of this order and on other dates as need be as set by the court to prepare final terms of the order.
Mr. Q. will immediately take steps to request that the current Undertaking dated December 20, 2019 be changed such that communication with Ms. M. shall be pursuant to the following Family Court Order and for the purpose of their child’s best interest.
The orders of Justice Clay dated January 14 / 21 April 16, 2014 are terminated and as well all Temporary orders to date in this litigation and replaced as follows:
The applicant Ms. M. and the Respondent Mr. Q. shall have joint decision-making authority regarding their daughter M.M.’s health, education, and spiritual needs.
The parties will immediately (jointly) provide this order to the Children’s Aid Society for the Region of Peel (CASP) and request that CASP reopen a file to provide to the family any services that will assist M.M. as needed with the parenting transition as set out in this order.
To be clear the parenting time for M.M., between each of her parents’ homes, as set out in this order shall occur as ordered and not be dependent of any service that the parents are asked to enlist as assistance.
This order shall be provided to the child’s doctor and school with whom both parents will both be listed as contacts; first Ms. M. and second Mr. Q.
M.M.’s school and doctor shall remain the same unless agreed to between the parents in a written agreement.
Both parties shall have the same right to communicate directly with any service providers who provides service to the child (i.e. doctors). The consent of the other parent for such communication or for the service provider to release information, documentation, or records to the other parent, shall not be required. This order shall be sufficient authorization for said release.
In the event of an emergency involving the child, the parent who has care of the child shall provide the other with details of the nature of the emergency and the location where the child is. If the child is in hospital the parent who does not have the child in his or her care shall have the right to see the child
Ms. M. will within the next seven days contact and arrange to meet Mr. Q.’s sister D.Q.D.C., to discuss the terms of this order to begin the process of M.M. having parenting time with Mr. Q. as set out below: (They are to ask PCAS for suggestions on this process, including any counselling or therapy that could be offered if required).
Ms. M. with Ms. D.Q.D.C., will meet with M.M. and Ms. M. will give her daughter positive messages about her father, that she has no reason to fear her father and that Ms. M. wishes M.M. to visit with Mr. Q. and his family and arrange for this parenting time to commence.
A support Deduction Order shall issue.
Temporary Order
- M.M. will have parenting time with her father Mr. Q. as follows:
A. Commencing the week of October 24, 2021 and for 4 weeks each Wednesday pick-up from school until 7:30 p.m. and each Saturday from 11:00 a.m. to 7:30 p.m.
B. Commencing the week of November 21, 2021 each Wednesday pick-up from school until 7:30 p.m. and each weekend Friday from after school to Saturday at 7:30 p.m.
C. Christmas 2021/New Year’s 2022:
M.M. shall spend Christmas holidays with Mr. Q. on December 23rd noon to December 24, 2021 with M.M. returning to be with Ms. M. no later than 8:30p.m. December 24, 2021 and December 27 to December 29, 2021, 12 noon to 12 noon.
Commencing in January 2022:
D. Commencing Sunday January 3rd, 2022 pick-up Sunday at noon return to school Wednesday morning for commencement of school.
E. Commencing February 27, 2022 M.M. will spend a week about parenting schedule between her father’s and mother’s homes with an exchange on Sunday at noon each week. (This week about schedule will continue through the summer months, defined as July and August, March Break from school unless agreed to by the parties). See below.
Parties to discuss and agree on how to equally divide up other holiday/vacation time as well as other collateral issues regarding International travel, child’s documents, address/telephone/email changes and any proposed change to child’s residence from current location and/or out of Peel. For issues unresolved the Court will provide final orders.
Issue of Costs for this trial are to be discussed between the parties and if no resolution reached the court will provide timelines for the parties to serve and file submissions and Bill co costs .
Note issues in #15, #16 will be dealt with at second conference date to be determined to review the compliance of the Patenting time as set out in this Order to arrive at a final order on all terms.
Communication protocol to be implemented when not in conflict with any order from Mr. Q.’s criminal proceeding with Ms. M.
Both parties are to follow this communication and behaviour protocols as they form part of the terms of this order.
The parties shall abide by these principles in their relationship with each other and their contact with the child:
a. They shall refrain absolutely from denigrating each other or members of each other’s household or families in the presence or within earshot, of the child;
b. They shall not question the child about the other party’s personal life and activities;
c. They shall not video or audio record the child for the purpose of recording statements or discussions about the other party, members of their household or family, or other parenting issues;
d. They shall refrain absolutely from engaging in any disputes with each other in the presence or within earshot of the child and from involving the child in any manner in conflicts which may arise between the parties;
e. They shall not use the child to pass messages or documentation on to each other;
f. They shall encourage the child to have a strong and positive relationship with both parents and shall use all reasonable efforts to foster a meaningful relationship between the child and the other parent;
g. Neither party shall discuss with the child, or with another party in the presence of the child, present or past legal proceedings or issues between the parties related to the present or past legal proceedings, including any financial issues relating to the parties or the child, or regarding conflict between the parties relating to parenting issues;
h. The party shall communicate about the child by email and/or text. Each party will respond promptly by return email or text to the email or text of the other. The parties shall exchange information about the child, including notice of any scheduled medical or counselling appointments, report cards, behavioral concerns, upcoming activities, and any request for changes in the parenting schedule.
i. All email/texts between the parties regarding the child shall not be deleted, nor shall they be forwarded to third parties other than lawyers or, without the other parent’s consent.
j. Emails/texts shall be brief, respectful, related solely to the child, with no reference to either of the parties or their activities. The party shall not email/text each other excessively.
k. The parties shall share all documents pertaining to the child by scanning or photographing the document and then sending it to the other parent by email. The parties shall not rely on the child to transport documents between them.
l. If one party requests information or a temporary change by email/text, the other party shall respond within 48 hours. Requests made giving less than 48 hours’ notice shall be responded to as soon as possible. In the event of an emergency or truly time sensitive matter, the parties shall call each other. If a reply requires more time than 48 hours, and email/text shall be sent advising that the reply cannot be reasonably given within this time period and advising when the response can be expected.
m. Any discussions between the parties at transition times, activities, or other special events where the child is present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, he or she shall simply say “I no longer wish to discuss this,” and upon one party saying so, both shall immediately discontinue the conversation and shall take up the issue later by email/text.
Released: October 15, 2021
Signed: Justice A.W.J. Sullivan
