M.P.M. v. A.L.M., 2021 ONCA 465

COURT OF APPEAL FOR ONTARIO

DATE: 20210628 DOCKET: C69087

Doherty, Trotter and Thorburn JJ. A.

BETWEEN

M.P.M. Applicant (Appellant)

and

A.L.M. Respondent (Respondent)

Counsel: Erin L. Reid and Jordan D. McKie, for the appellant A.L.M., acting in person

Heard: June 2, 2021 by video conference

On appeal from the order of Justice A. Duncan Grace of the Superior Court of Justice, dated January 8, 2021, with reasons reported at 2021 ONSC 177.

Thorburn J.A.:

OVERVIEW

[1] The parties to this appeal are parents of two children: D.M., born in October 2008, and S.M., born in March 2011. This is an appeal of the January 2021 parenting order in respect of D.M. and S.M. [1]

[2] In April 2020, after an eleven-day trial, the trial judge concluded that the respondent mother, A.L.M, had alienated D.M. and S.M. from the appellant father, M.P.M. The trial judge ordered that the parties would continue to have joint custody, the children would continue to reside primarily with the mother, while the father would have rights of access on the terms set out in his order. All parties were ordered to undergo assessment and therapy to address, among other things, the children’s alienation from their father. In his reasons, the trial judge warned that he might reverse custody if the mother did not change her behaviour to encourage the children’s relationship with their father.

[3] In January 2021, upon receipt of further evidence, which included a report prepared by the psychologist Dr. Dilys Haner pursuant to s. 30 of the Children’s Law Reform Act (“the Haner Report”), the trial judge found that no progress had been made in respect of the counselling and therapy he had ordered.

[4] However, citing concerns around the imminent arrival of the father’s newborn child with his new spouse (which D.M. and S.M. were not aware of), the effect of the COVID-19 pandemic, and the importance of the immediate mental health of the children, he ordered that the parties continue to share custody, the children continue to reside primarily with the mother with access and progress reports to the father, and all parties attend therapy and counselling as set out in the order. He also ordered that, “[i]f she agrees to do so, Dr. Haner shall act as case manager and shall oversee the counselling/therapy referred to … with a view to achieving the ultimate objective of establishing a positive relationship between the children and both of their parents”. The reviewing judge decided that “I am no longer seized of this matter” and there would, therefore, be no further judicial oversight.

[5] The father seeks to vary the reviewing judge’s order such that:

a) the father will have sole decision-making responsibility for the children; b) the children will reside exclusively with him; and c) the children shall not have contact with the mother for several months and in any event, not until she has engaged and “meaningfully participated” in therapy to gain insight into her alienating conduct.

[6] In addressing the issues on appeal, I will outline the proposed fresh evidence introduced by the father, review the two decisions of the judge below, briefly set out the law on child alienation and the role of this court, and provide my reasons for dismissing this appeal.

THE FRESH EVIDENCE

[7] The fresh evidence the father seeks to adduce on this appeal is a four‑paragraph affidavit of Dr. Haner, which attaches her letter to the father’s counsel. The letter, dated January 18, 2021, states that:

Case management without judicial oversight is almost certain to backfire. I must consider the following potential negative consequences:

[The mother] will continue to negatively influence the children’s mental health intervention with a qualified child therapist/counsellor who is also sufficiently familiar with high conflict family dynamics to guard against her directing the treatment according to her own agenda, which is not aligned with the court’s.
The children will continue to be exposed to ongoing drama and conflict due to [the mother]’s inability to have them attend appropriate mental health treatment (i.e., with a qualified children’s mental health treatment provider also sufficiently trained and experienced with high-conflict separation and divorce).
The family’s financial resources will be severely depleted without the hoped-for progress.
The treatment providers (including myself) will, therefore, be ineffectual yet committed to continue to attempt the work. This situation will surely lead to burnout for all involved.
The children are, therefore, at-risk of becoming further entrenched in their beliefs that their father is unsafe, and their mental health will continue to deteriorate.

I would be willing to reconsider and would likely accept case management responsibility for the family if there was a commitment from the Court to provide continuity in oversight such as I would be agreeing to. Without the consistent oversight of a Judge sufficiently familiar with the details and progress of this case, to whom I can report, and on whom we all can rely to enforce consequences for non-compliance, I am of the opinion that no further progress will be made by [the mother], and therefore, also the children.

To summarize, I cannot ethically accept this referral at this time. Should the Court provide further direction/request of me or provide a guarantee of consistent judicial oversight for this family, I will certainly reconsider. It is my sincere hope to support the true progress of this family, and its members, toward genuine healing.

[8] The letter was written ten days after the judge rendered his Reasons on Review and in response to his order that Dr. Haner act as case manager for counselling and therapy “if she agrees to do so”.

[9] In order for the court to discharge its obligation to consider the best interests of the children, for this purpose the rules governing the admission of fresh evidence in family law appeals are relaxed: Salehi v. Tawoosi, 2016 ONCA 986, 92 R.F.L. (7th) 261, at para. 21. A more flexible approach to the Palmer test for the admission of fresh evidence is appropriate: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 13; Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165. As this court observed in H.E. v. M.M., 2015 ONCA 813, 393 D.L.R. (4th) 267, at paras. 71-72, leave to appeal refused, [2016] S.C.C.A. No. 63:

Flexibility in such matters is consistent with the need for up-to-date information on children, whose fate often hinges on a determination by judges, and is thus in line with the overarching criterion for admission, namely, the interests of justice.

The more flexible approach to fresh evidence in matters relating to child welfare does not, however, render all proffered fresh evidence admissible. The factors enunciated in the Palmer test remain relevant. In particular, to be admissible, the fresh evidence must be credible and reasonably capable of belief.

[10] Dr. Haner’s evidence could not have been provided prior to receipt of the reasons for the review order, it is authored by the expert sought to manage the counselling and therapy for this family, and it is clearly credible and relevant to the welfare of these children which is the central issue on this appeal. I would therefore admit the fresh evidence.

THE PROCEEDINGS BELOW

[11] The parties ended their eleven-year relationship in December 2017. There were then some unsuccessful attempts at reconciliation. The father moved out of the family home and the mother remained with D.M. and S.M. These children have remained with their mother since the date of separation.

[12] Shortly after the marriage ended, the mother had an emotional breakdown. She has also dealt with her mother’s cancer diagnosis and her own reintegration into the workforce.

[13] The father has a new relationship and a new child born of that relationship. D.M. and S.M. are not aware that they have a half-sibling.

[14] Since the date of separation, notwithstanding concerted efforts by the father and the assistance offered by professionals, D.M. and S.M. have not formed a meaningful relationship with their father.

(1) The Trial Judge’s Reasons in April 2020

[15] The father brought an application before the Superior Court in London for, inter alia, custody and access (now parenting orders pursuant to the deeming provisions at s.76(2) and 76(3) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, “CLRA”). Testimony was heard over eleven days beginning on October 2, 2019. The trial judge released his decision on April 7, 2020: see 2020 ONSC 1862.

[16] The trial judge concluded that the mother had alienated the children from the father and that her conduct was contrary to the children's best interests. The application judge held that he would have ordered a custody reversal and removal of the children from the mother’s care with no contact between the mother and her children, including no communication between them for several months to provide time for the alienation and ill-feeling toward the father to be reversed. The trial judge would have made this order notwithstanding that it would, in the short term, have been devastating for the children.

[17] However, he did not make that order.

[18] Instead, he held that, “world changing external circumstances have intervened. For now, that means a reassessment of the disposition I would have made.” He ordered that, “[i]n all of the circumstances and subject to the review” of the parenting orders to be scheduled sometime after September 2020, among other things:

a) The parties shall share custody [decision-making] of D.M. and S.M.; b) The children will continue to reside primarily with [the mother, with regular contact with the father as further set out in the order]; h) For the purposes of the review [of the parenting orders] and subject to her written consent, Dr. Dilys Haner of the London Clinic is appointed to assess and report to the court on the needs of the children and the ability and willingness of the parties to satisfy them.... i) Each of the parties and each child is ordered to attend for and fully cooperate in an assessment by Dr. Haner.... j) The fees and expenses of Dr. Haner and any retainer required thereby shall be shared equally by the parties and paid forthwith upon request by Dr. Haner.

(2) The Trial Judge’s Reasons on Review in January 2021

[19] The trial judge remained seized of this matter pending completion of the review. Prior to the review hearing, Dr. Haner filed a comprehensive 63-page report. Testimony on the review hearing was heard over four days in the Fall of 2020.

[20] The trial judge released his Reasons on Review on January 8, 2021. In his Reasons, he provided a detailed review of the Haner report and Dr. Haner’s testimony.

[21] Dr. Haner noted that following an access visit by the father, one child noted that the other had tried to commit suicide twice and said she wanted to do the same. Dr. Haner also witnessed two virtual visits with the father where the children refused to sit in front of the camera and even after the mother instructed them to focus on not yelling, one child said it was the father’s fault that they wanted to kill themselves. That child complained of not being able to eat, vomiting and other somatic anxiety symptoms. Dr. Haner noted that the children had still not received any mental health assistance.

[22] As noted by the application judge in his Reasons on Review, at paras. 44-48:

Dr. Haner told the court that A.M. had started to realize her conduct had, unintentionally, impacted the children and contributed to a material way to their negative attitude toward their father. However, she noted the respondent tends to interpret things negatively, even when most people would have reacted positively. The assessor thought that attribute, which she referred to as cognitive distortion, could detrimentally affect the children’s perceptions of events.

When cross-examined, Dr. Haner offered a frank assessment of A.M. The respondent was told that she found it difficult to self-regulate and that therapeutic support was needed to assist her in being more mindful of what she needed to do.

While of the view that “both parents desperately want to figure out how to co-parent effectively”, that was simply not possible because:

Each parent vehemently denies the other’s experiences and reality. When this happens, there is no basis for trust, essentially no basis for a remotely healthy relationship.

Dr. Haner had many positive things to say about M.M. He well received, adopted and displayed her recommendations. However, the applicant substantially underestimated the task of reintegration.

Further, there had been a significant development. Dr. Haner learned that [M.M.’s new spouse] was pregnant. That news had not been communicated to D.M. or S.M. Dr. Haner said M.M. was naïve when it came to the implications of adding a new child to the equation, particularly given the nature and extent of the negative comments directed toward [M.M.’s new spouse].

[23] In her report to the court, Dr. Haner concluded that “[t]his is an impossibly difficult situation in which there is no good answer” (emphasis in original). Dr. Haner made the following recommendations, among others:

a. The parties, the children and [the father’s new spouse] participate in an intensive, three-month long therapeutic plan overseen by a case manager/lead therapist; b. Each child receive individual counselling to treat their symptoms of anxiety and build coping, emotional regulation and distress tolerance skills; c. A.M. receive counselling of a similar kind and for similar purposes; d. M.M. receive counselling, psychoeducation and support to prepare for the eventual reintegration of the children into his home and with C. and the new baby.

[24] Notably, she did not recommend that the children be transferred to the father’s home with no contact with the mother.

[25] In her testimony at the review hearing, Dr. Haner was asked the following question and gave the following answer:

Q. Do you believe the upcoming birth of [the father’s new spouse] and [the father]'s child will have an impact on their relationship between the children and their father?

A. Yes, I do. I think it is going to need to be navigated carefully. There appeared during the assessment to be a misperception in [the father]'s family … that their siblings would automatically love having a new half sibling. I recall [a family member] discussing with me and her opinion was that everybody loves a baby, and that D.M. would love to have a new sibling, she loves children. However, you know, through other discussions and interviews with the children I came to understand that [D.M. and S.M.] reported being fearful that their father would replace them with a new sibling at some point, with new children. I think that particularly at a time where new parents are needing to spend a lot of time and attention in the caretaking of an infant, or in the, you know, immediate prenatal and post natal periods, it’s a time of great stress, although great joy as well. There is a risk of the children feeling replaced. There is whenever there is a new family, or sorry, a new baby brought into a family. And I think that this issue needs to be very carefully considered in terms of the timing and way in which the children are introduced to their new half sibling. And also, to [the father’s new spouse], who rightly or wrongly, their current, well their perception when I finished the assessment was that they viewed her as the reason why their father was no longer living with them. [Emphasis added.]

[26] The judge, in his Reasons on Review, recounted a number of unsuccessful attempts at counselling and assessment to assist the parties. The reviewing judge attributed the lack of success entirely to the mother and held that, “I continue to have no doubt that M.M. is devoted, loving and committed to bettering the lives of his children … I commend M.M. for his behaviour and his plan.”

[27] However, the judge again denied the father the relief he sought on three bases set out in his Reasons on Review. First, he noted that M.M. and his new spouse had a newborn child. As mentioned, the applicant had not discussed the pregnancy, let alone the birth, with D.M. or S.M. Further, the reviewing judge considered that “the magnitude of the change that would occur if the court made the order sought is simply too great and the consequences too unpredictable” for the mother, the father, and especially D.M. and S.M. Second, the uncertainty and instability of the pandemic remained. Third, he accepted Dr. Haner’s analysis and recommendations as compelling and well-supported. Specifically, he accepted her statement that “there is no long-term future for D.M. and S.M. if they cannot navigate the short-term.” He also accepted Dr. Haner’s view that the immediate mental health of the parties’ children had to be prioritized.

[28] He therefore ordered that both parents continue to share custody of the children and the children continue to reside primarily with the mother with the father being provided access to the children as specified in his order. He also made specific orders regarding ongoing counselling and therapy for both parents and the children.

THE POSITIONS OF THE PARTIES ON APPEAL

[29] The appellant father asserts that the reviewing judge’s order that the parties continue to share custody and these children continue to reside with the mother is contrary to the best interests of these children. He argues that (i) the reviewing judge misapprehended the evidence about the effect of the appellant’s new child – it was simply something to be navigated; (ii) there was no explanation of why the pandemic precluded the order reversing custody; and (iii) the order is incompatible with the children’s long-term mental health, which requires them to establish a healthy relationship with their father.

[30] The father submits that all three reasons cited by the judge in his Reasons on Review are contrary to the best interests of the children.

[31] The respondent mother is self-represented and filed no material. In her oral submissions, she submitted that the reviewing judge did not err in concluding that these children should remain with her, that she share custody with the father, and that the parties and these children undergo counselling. She outlined the personal challenges she has faced: the marital breakdown, her mother’s illness, caring for children alone, and reintegrating into the workforce.

[32] She disputes the father’s characterization of Dr. Haner’s findings and submits that, on the contrary, Dr. Haner found that the father’s new child poses a significant challenge to the children’s sense of belonging and wellbeing in the father’s care. She also claims the COVID-19 pandemic poses challenges including the inability to meet in person with counsellors and therapists, family, and school friends. Finally, she disputes the father’s claim that she alone is responsible for the children’s failure to access mental health supports.

THE LEGAL ISSUES

[33] An appeal court should not retry parenting order cases: C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4. As stated in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13:

Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.

[34] Social science evidence regarding the effectiveness of 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’g 2018 ONSC 6472 (“A.M. v. C.H. (ONSC)”).

[35] As 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.”

[36] Although 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.

[37] Where 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).

[38] In this case, the reviewing judge acknowledged that the best interests of the children are “always paramount”. He did not err in articulating the best interest of the children in coparenting disputes.

[39] The reviewing judge noted serious concerns about leaving these children in the mother’s care and he was critical of the fact that, in his view, the mother had made insufficient effort to ensure that these children had access to therapy and counselling that they sorely need, despite the previous court order. However, he found that there were other serious considerations to be considered in determining what was in the best interest of these children. The cumulative effect of the three factors he outlined, concerns about (i) the father’s insufficient insight into the children’s likely reactions to his newborn child with his new partner, (ii) pandemic-related stressors, and (iii) the expert’s concerns about the seriousness of the children’s immediate mental health concerns, together satisfied him that the children’s best interests required them to remain living with the mother. His final order awarded joint decision-making to both parents, parenting time with the father, and ordered that the parties and the children attend therapy and counselling.

[40] He noted that the father and his new spouse had not yet told D.M. and S.M. of the pregnancy and the birth of their new child. That child is very young which, of course, means it will require a significant amount of attention. As Dr. Haner noted, these children have said they believe the father’s new relationship broke their family unit, they have expressed concerns that their father would replace them with a new sibling at some point, both of their mental states are very fragile, and each has expressed animosity and hostility to the father.

[41] In my view, there was ample evidence to support the reviewing judge’s conclusion that the consequences of this change in circumstances is too unpredictable for these vulnerable children. He did not misapprehend the evidence on this point and his conclusion was based on the evidence before him, including the expert’s report and testimony.

[42] Secondly, the reviewing judge noted the effects of the COVID-19 pandemic. He noted the province-wide shutdown and school closures. While he did not outline how, in his view, this would adversely affect these children, there can be no dispute that the pandemic has been disruptive for children. The inability to meet and interact in person with counsellors and therapists, teachers, friends and other support people has created challenges especially for those who are already very vulnerable.

[43] In my view, there was no error in adverting to the pandemic as relevant in considering whether to disrupt one of these children’s few sources of stability – their life with their mother in her home – during a time when many other aspects of their lives have been disrupted.

[44] Thirdly, the reviewing judge relied on the opinion of Dr. Haner, who explained in her report that, in her view, there is no long-term future for these children if they cannot navigate the short-term and the immediate mental health of the parties’ children had to be prioritized. The reviewing judge found her “analysis was compelling and her recommendation well supported”.

[45] The father claims that since Dr. Haner filed her report and testified at the review hearing, things have changed.

[46] I do not agree.

[47] Dr. Haner’s letter, submitted as fresh evidence, does not indicate that there has been a material change since her testimony at the review hearing weeks before, nor does she state that the children cannot and should not continue to reside with the mother. Dr. Haner’s overarching concern was the termination of ongoing judicial oversight. She did not say in her letter that the children should be transferred to the father’s home without contact with the mother or that the children’s primary residence and decision-making should be with the father.

[48] Dr. Haner concluded:

[49] There is no evidence that, in view of this letter, any further judicial oversight has been sought prior to the bringing of this appeal.

[50] There were no easy answers in this case. However, the judge below considered factors directly relevant to the children’s best interests and concluded that reversing the location of their primary residence was not in their best interests. I see no error in his approach or conclusion given the combined effect of (i) the new family situation in the father’s household that is unknown to the children such that they cannot have adjusted to it; (ii) the inability to access the same resources and interact in person with those who could assist with counselling, therapy and emotional wellbeing; and (iii) the fact that reversing primary residence is almost certain to negatively affect these children in the short-term, while the social science evidence about the long-term success of such an intervention remains inconclusive.

[51] In my view, in all the circumstances of this case, the reviewing judge’s orders were made in these children’s best interests.

[52] As the reviewing judge recognized, this is a very sad tale of two young children who have suffered terribly as a result of the marital breakdown. They are angry, hurt and vulnerable. They have also been privy to actions and words children should not be privy to.

[53] Both parties love and want to be with their children. The children deserve to have two parents who, while they may no longer love one another, are both loving parents each of whom is given the opportunity to express their love for and spend time with their children.

[54] This has not been the case to date.

[55] While the mother faces her own challenges, she is ordered to assist the children to get the counselling and therapy that they need to enable the father to have the contact he needs with them to build a relationship with these children.

DISPOSITION

[56] For these reasons, I would dismiss the appeal.

[57] In light of the fresh evidence, however, in which the proposed case manager declines to continue to assist the family absent continuing judicial oversight, I would order a brief review hearing in one year’s time. The purpose of the review hearing is primarily to preserve the incentive for the mother to comply with the counselling and therapy orders and to start to promote the children’s relationship with their father to the best of her ability.

[58] I would award no costs on the appeal.

Released: June 28, 2021 “D.D.” “J.A. Thorburn J.A.” “I agree. Doherty J.A.” “I agree. Gary Trotter J.A.”

Footnotes

[1] Amendments to the Divorce Act, R.S.C., 1985, c. 3, came into effect on March 1, 2021. Among other changes to the Act, certain terminology has been changed. What was previously known as ‘custody’ and ‘access’ are now “decision-making responsibility” and “parenting time” or “contact”, respectively.