Court File and Parties

Court File Nos.: 42/1998-01 and 42/1998-02 Date: 2012-07-05 Ontario Court of Justice

Between:

P.B. Annalisa Rasaiah for the Applicant (mother)

— AND —

K.1.H. Benjamin Pritchard for the Respondent (father) Kenneth Lawson, OCL counsel for the child K.2.H.

Heard: July 7, 8, 20, 21, 22, 23, 28, 29, 30, 2009 & February 1, 5, 28, 2010 & March 1, 2, 2010, April 1, 8, 26, 27, 28 & 29, 2010 and May 13, 2010

Justice: Kukurin J.

Introduction

[1] This is a long overdue decision in a case that started in April 2007. It started as an access enforcement case, but it underwent a metamorphosis over its litigation journey. By the time of trial, it was a high conflict custody and access fight that included legal representation for the child K.2, now age 15, by counsel from the Office of the Children's Lawyer (OCL). The trial was initially set for nine days. By the time it was completed, 20 full days had been consumed.

History

[2] For an adequate appreciation of these Reasons, it is necessary to review the background of the parties, which includes a significant litigation history in this court.

[3] The parties are P., the mother, and K.1, the father, of their one child, K.2, who is the focus of their dispute, and the subject of this case. P. and K.1 were never married to each other. Their relationship broke up before K.2 was even a year old. K.2 was born in […] 1996.

The First Proceeding

[4] Following the end of their relationship, P. started an application in this court. Her claims were contested by K.1 who made claims of his own. There were a number of interim orders made over the year or so that this first proceeding took to resolve. Ultimately, the parties entered into minutes of settlement just prior to trial. These were incorporated into a consent order dated April 19, 1999, which provided:

1. Sole custody of K.2 to her mother, P.;

2. Reasonable access to the father K.1 on reasonable notice to P. provided that K.1 was not to consume alcohol during, or within 24 hours prior to any access, or to any attendances at P.'s home;

3. K.1 was to pay P. $322 per month child support, with mutual production of tax returns annually;

4. K.1 was restrained from molesting, annoying or harassing P., and was to post a $3,000 bond, with no cash deposit, to be forfeited should he breach this restraining order;

5. There were no costs to either party at this proceeding.

The Second Proceeding

[5] Following the April 19, 1999 order, K.1 exercised access to K.2, who was then just over two years old, at P.'s home. This continued for about a year. P. then stopped permitting K.1 from coming to her home because, according to her, he was spending much of his access time intruding into her affairs. K.1 was then living with his mother. P. began bringing K.2 to spend time with her father at the paternal grandmother's home. During the summer months, access was exercised at the summer cottage property of the father at Island Lake, a 15 minute drive from the city. Although there was no specific reference in the April 1999 order to any requirement that K.1's access be supervised, it was P.'s understanding and expectation that it would be. She supervised access while it took place at her home. She relied on the paternal grandmother being present when access was exercised at the grandmother's home. She expected one or more of K.1 siblings, or extended family members would be present and supervising K.1's access when it was at his cottage at the lake. By the end of summer 2000, P. became aware that K.1's family was no longer available to supervise, and she discontinued making K.2 available for paternal access. K.2 was, by this time, age four and one-half.

[6] K.1 thereupon started a proceeding in the Superior Court where he obtained some interim relief. This was short-lived as the Superior Court declined jurisdiction once it became aware that there was a final custody and access order in existence in his court.

[7] K.1 then commenced the second case in October 2000. He was initially seeking to vary the paternal access provisions in the April 1999 order. "Reasonable access" was no longer working. The antagonism between P. and K.1 had escalated, and this was adversely affecting the arrangements for what was to be "reasonable access".

[8] This second case involved a series of interim motions that resulted in interim orders to specify dates and times for paternal access, for March break and Easter 2001, for mid-week access on Wednesdays, for summer and Christmas 2001, and summer 2002 access. During the course of this second case, K.1's claim changed from one seeking to vary (by specifying) the paternal access terms of the April 1999 order, to one seeking to vary maternal sole custody to joint custody.

[9] P. sought to suspend or terminate K.1's access. The case escalated to a high conflict case. The parties could not communicate civilly with each other. The case was rife with counter allegations to allegations, inconsistencies and contradictions in the evidence, accusatory and, at times, inflammatory language. K.1 appeared to have some obsession to involve himself in P.'s life, to her great annoyance. P. felt that K.1 was an alcoholic and could not be trusted to be on his own with K.2 in his care. Interim orders had to be specific in terms of details of access, and often included provisions designed to keep the parents apart from each other, and to insulate K.2 from the overflow of their hostility towards each other.

[10] This second case became a procedural mess which I need to describe here because I already did so in March 2002 when I cancelled the trial which had been scheduled. [1]

[11] The procedure of this second case went a through a lengthy restructuring. It was finally set for trial again in August 2003. On the eve of a five day scheduled trial, the parties arrived at a resolution (more I suspect from litigation fatigue than from cooperation), by comprehensive minutes of settlement containing 26 paragraphs. The settlement terms, incorporated into an order dated August 13, 2003, gave sole custody to the mother, contained a multitude of provisions related to paternal access, included a restraining order against the father, and increased the child support quantum marginally. This order, in effect, rescinded the April 19, 1999 order and replaced it.

[12] For purposes of these Reasons, two paragraph of this August 13, 2003 order have become very relevant because of subsequent events which led directly to the third and fourth proceedings which make up the case before this court. These two provisions were:

10. The child's wishes in respect of access herein as she ages shall be respected by both Respondent/Father and Applicant/Mother.

11. The Respondent/Father shall not consume alcohol to excess during his access with his child and shall maintain sobriety at all times that he has the child in his care.

[13] By August 13, 2003, K.2 was six years old, closing in on age seven.

The Third (Present) Proceeding

[14] This third case was started by an application filed by the father in April 2007. This sought access enforcement orders under section 36(1) and section 36(2) of the Children's Law Reform Act (the Act). [2] The mother countered these claims with her own claims in her Answer requesting OCL involvement, production of police and Children's Aid Society records, for an order restraining the father from harassing the child K.2, and for (substantial indemnity) costs. She opposed both claims of the father.

[15] This third proceeding also evolved into something very different by the time it reached the stage of trial. The father's application proceeded through the case conference, the settlement conference and to the trial management conference stage. Along the way, motions were brought and orders were made for OCL involvement, for production of Children's Aid Society and police records, and for questioning of the mother pursuant to subrule 20(5) [3] of the Family Law Rules (the Rules) which apply to procedure in this court.

The Fourth (Present) Proceeding

[16] In June 2009, over two years after this third proceeding was started, and less than two weeks before the first day of a ten day trial, the father started another case in this court. This fourth case was started by a motion to change the final order dated August 13, 2003. The claim of the father in this motion to change was for variation of custody to grant the father sole custody, to terminate the existing child support order, for an order that any maternal access be supervised, and for a police assistance order to enforce the paternal custody order sought.

[17] The mother opposed these variation claims. She responded by seeking an order of her own, namely, for variation of paternal access terms to provide that any paternal access be subject to request by the child and subject to approval by the Children's Aid Society of Algoma. The mother also sought costs on a full recovery basis. The father, whose motion to change had not included a claim for costs, later obtained an order to amend his claim to include a claim for costs against the mother.

[18] These last minute developments prompted the convening of a trial management conference continuation [4] on the first day set for trial. This resulted in an order that both the application of the father and the motion to change of the father were to be heard together, [5] and that evidence in one proceeding was deemed to be evidence in the other. [6]

[19] No one wished to cancel the trial at this late stage. It proceeded as scheduled. The claims that the parties were pursuing were clarified in the trial management conference memo as follows:

(a) Application by father - - S. 36(1) CLRA order - opposed by mother

• S. 36(2) CLRA order – opposed by mother

• Costs of application – opposed by mother

(b) Answer of mother - OCL order – obtained – no costs sought

• Police and CAS records – order obtained – Mother seeks costs

• Restraining order – withdrawn by mother – no costs

• Costs of Application – opposed by father

(c) Motion to Change by father - Vary to sole custody to father – opposed by mother

• Supervised access to mother – opposed by mother

• Vary child support to nil (contingent) – opposed by mother

• Police assistance order – opposed by mother

(d) Response to motion by mother - Vary paternal access to no access – opposed by father

• Costs of motion to change (full indemnity) – opposed by father

As previously mentioned, the father's motion was amended to add a claim for costs. Also, an OCL order was made in the motion to change case to mirror that one in the application case where an OCL panel lawyer had been assigned and was representing K.2.

[20] The trial dates were grossly underestimated by the parties and by the court. Once the July 2009 dates been exhausted, continuation dates could not be arranged until February 2010. An additional ten days of trial evidence was set, plus submissions of counsel, for the end of April 2010.

[21] There are some who estimate that only two to three percent of cases in this family court actually go to trial. Most are resolved, many at the settlement conference stage. A 20 day trial in a custody and access case is unusual. It is even more exceptional for such a case to go to trial after there had already been a final order made after a prior protracted litigation, especially when made on consent. For these litigants, there were two such prior proceedings.

Changes in Circumstances

August 27, 2006 Incident at Island Lake

[22] There was, in fact, a significant event that took place on August 27, 2006 at the father's cottage at Island Lake. In the three years from the previous order (August 13, 2003) until this occurrence in August 2006, K.2 was spending time with her father more or less in accordance with the court order. There was no indication of any significant problems in the father-daughter relationship. On August 27, 2006, K.2 was almost age ten. She seemed to have a fairly normalized relationship with members of the paternal extended family: her grandmother, her aunts and uncles, and her cousins. She had a very close relationship with her mother who had been her primary caregiver since her birth. She had positive relationship with Cara and with Shawn, her maternal siblings, children of the mother from prior relationships, who were adults in their twenties by this time.

[23] K.2 had her friend Samantha as her guest at the Island Lake cottage on August 27, 2006. This was a paternal access day. K.2's father, the only other adult present, had been drinking alcoholic beverages, likely wine. What took place is a reconstruction from pieces of evidence from different sources. What follows, in point form, are my abbreviated findings of factual events of that day.

[24] 1. The father K.1 was acting strangely and his behaviour made K.2 and Samantha fearful.

2. K.2 telephoned her mother in town and told her she was frightened and wanted to come home.

3. Samantha's father came to fetch Samantha. K.2 wanted to leave with them. K.2's father would not let her go.

4. K.2's mother called a priest, Reverend McParland, who had a cottage nearby. She also called K.2's paternal aunt A., who also had a cottage on the lake and asked them to get K.2 away from her father.

5. Reverend McParland arrived intending to take K.2 away with him. The father, K.1, refused to let him do so. He was loud, confrontational and uncooperative, and directed some inappropriate language to the clergyman.

6. While this was taking place, the father's brother-in-law, Sergio, arrived to remove K.2 from her father. Her father again refused to let her go. An altercation ensued between the father and his brother-in-law Sergio. The father threw stones at Sergio's truck. Sergio exited the vehicle with a baseball bat and allegedly assaulted the father. K.2 was an eye witness to all of this. Sergio then left without K.2.

7. K.2 ran away with her dog, Charlie, apparently in panic, heading to the cottage of her paternal aunt. Her father had initially let her go, then changed his mind. He followed her in his truck. She became frightened and ran off the road through the bush and into the lake with her dog. She later verbalized that she believed her father was trying to run her down. Eventually she made it to the aunt's cottage.

8. The Ontario Provincial Police were called and attended at the father's cottage looking for K.2. The father was belligerent with the police, yelling and swearing, confrontational and irrational to deal with. He demanded that the police leave his cottage which they did after satisfying themselves that K.2 was not there. The father K.1 was clearly intoxicated.

9. The father made a number of calls, eighteen in all, to 9-1-1 to the OPP Communication Centre in North Bay, and apparently to ambulance dispatch. He was rude, belligerent and swearing. He was warned several times to stop or he would be charged. He did not listen. He was arrested and taken in handcuffs to the OPP detachment where he was lodged in a cell overnight.

10. The father K.1 was charged with:

(a) breach of court order – consuming alcohol to excess during access [section 127 CCC];

(b) obstruct police by repeated calls to OPP [section 129(a) CCC];

(c) mischief by interfering with OPP communication system [section 430 CCC].

On December 11, 2006, the mischief count was withdrawn. The father pleaded guilty to breaching a court order [section 127] and to obstructing police [section 129(a)], for which he received a conditional discharged and was placed on probation for 12 months. [7]

Sexual Abuse Disclosures

[25] Paternal access changed drastically following these Sunday incidents at Island Lake. The most dramatic change is that there have been no further father-daughter access visits since that August day in 2006. K.2 and her father have had only a few face to face encounters since then, for all of which her mother has been present. K.2 was not prepared to see her father, and expressed this quite clearly. Despite this, efforts were made to restore the father-child relationship back to what it ostensibly had been for the three previous years. These efforts were made mainly by the father. However, the mother was also, at least initially, encouraging K.2 to resume seeing her father. K.2 began to see a counsellor, Ms. C.J. Bryson, at Algoma Family Services, who arranged a meeting with father, mother and daughter sometime later, apparently in an effort to facilitate a reconciliation between K.2 and her father.

[26] K.2's relationship with her father became limited to telephone contacts, by far the majority of which were initiated by the father. Unknown to K.2 or to her mother, the father K.1 recorded these telephone calls. A selection of these was introduced at trial by the father. It is very clear that the father was trying to repair and restore the previous father-daughter relationship. He was very persistent. The more he tried, the more K.2 would pull back. Her responses to his overtures started with terse, but relatively civil refusals and rejections, progressed to rudeness, insolence and blunt retorts, and finally to what I can only infer was a clear repudiation of the parent and child relationship. She often hung up on him. She would berate him for being so persistent and so obtuse. She called him an idiot, a loser and told him that she hated him.

[27] As a result of protection concerns arisen out of the Island Lake incident, the Children's Aid Society of Algoma (the society) became involved. Because the father, K.1, was not having any unsupervised access visits following the incident, the society remained in the background, but let the mother know that it would have to become involved and assess the circumstances should there be any restoration of unsupervised paternal access. The mother did not permit any unsupervised access, and K.2 was adamant that she would refuse to be alone with her father in any event. The father, who was still facing criminal charges, did not push for unsupervised access for many months.

[28] However, the criminal charges had been dealt with by early December 2006. The mother was no longer encouraging K.2 to see her father, and was becoming less and less accommodating of his efforts towards reconciliation. K.2 had become very adamant in her wish to have no more contact with her father. Her counselling initially to deal with the traumatic after effects of the Island Lake incident terminated. The father, at that point, started his present application to restore and enforce his access rights, accusing the mother of alienating K.2 from him.

[29] K.2 had made no reports of any sexual misconduct on the part of her father. The first such disclosure was not made until April 2008, approximately one and one-half years after the Island Lake incident, and about a year after her father started this application to enforce his access rights.

[30] The disclosure was first made to her OCL counsel in this case, Mr. O. K. Lawson. The society learned of this through an indirect route, but confirmed with her counsel that she had, in fact, made some preliminary disclosures to him. The society and the police conducted a joint investigation during the course of which K.2 (at age 11) was interviewed privately. She disclosed being sexually touched by her father in her private parts on several occasions while on access visits with him. These, she recounted, had taken place in the period when she was between seven and nine years of age, and had taken place in her bedroom at her father's home, and at the Island Lake cottage.

[31] The society assessment was, and remains, that K.2's report of sexual abuse is credible, and that such abuse did take place. Her father was invited by the police to participate in a police interview. He declined to do so. He has, in this proceeding, denied any sexual improprieties with K.2. He was not charged with any sexual offences as a result of the joint society and police investigation.

[32] The Island Lake incident and the sexual touching disclosures represent two very significant events that are part of the changes in circumstances since the order of August 13, 2003. The father's criminal charges and convictions do as well. K.2's refusal to visit with her father is clearly a key change. So also is the mother's change in attitude and position with respect to resumption of unsupervised paternal access. Finally, the involvement of the Children's Aid Society, K.2's counsellor, a psychiatrist, and other community service providers, have provided information of changes that have had a large impact on K.2. She had undergone major changes since the order of August 13, 2003. She was also three years older.

[33] In summary, there is no question that the threshold for judicial intervention by way of a court order has been met. There was no access, where previously, access was frequent. The August 2003 order remained in effect. Superficially, at least, this seems to justify a claim for an order to enforce paternal access rights.

[34] In addition, the fact that no access was taking place suggests that the existing order was simply not working. By its terms, it contemplates extensive access between father and daughter. In fact, approximately 20 of the 26 clauses in the order deal specifically with paternal access, or are access related. This, again, superficially, appears to warrant a variation of the existing order between the parties.

The Law

[35] Judicial decisions with respect to custody of, or access to, a child are statutorily required to be made in the best interests of the child. [8] This court has to operate on the premise that the existing court order dated August 13, 2003 is an order that was made in the best interests of K.2 when it was made, and that it continues to be in her best interests until the court is satisfied otherwise, on the basis of admissible evidence.

[36] In the case before this court, the father wants to change custody from the mother to himself. The mother wants to add to the existing access order, a provision that any future paternal access is to be on request of the child K.2, and to be subject to the approval of the Children's Aid Society of Algoma. [9]

[37] Accordingly, with respect to the claims of each of the parents, the court is obligated to make its decision applying the criterion of the best interests test when making a determination of the merits of an application relating to custody or access. The Children's Law Reform Act requires the court to consider all of the child's needs and circumstances, and proceeds to list a number of these that, to the extent they apply in a case, must be considered. [10]

[38] The past conduct of a person is not a consideration of a court that is making a determination relating to custody or access unless the court is satisfied that this past conduct has some relevance to that person's ability to act as a parent. [11] However, if that past conduct involves violence or abuse against that person's spouse, the parent of the child who is the subject of the custody or access determination, any member of the person's household, or any child, the court must consider such violent or abusive conduct in assessing ability to parent. [12]

[39] There is no statutory priority among the mandatory considerations listed in section 24(2) of the Act. There may well be greater importance assigned to one consideration over another, depending on the facts of a particular case.

[40] The facts of a case are found in the evidence presented by the parties to the court. Often, there is inconsistent evidence, even, at times, contradictory evidence with respect to a factual event. The burden lies with each party to satisfy the court, with admissible evidence, of the facts that support his or her position. The standard of proof is the balance of probabilities. The court often has to weigh the evidence it receives with respect to such things as relevance and reliability, and how it should apply to the determination of the issues in the case.

[41] With respect to enforcement of custody or access rights, the Children's Law Reform Act has two provisions, each of which involves the apprehension of the child pursuant to a court order. [13] There are preconditions before such apprehensions can take place. The court must be satisfied, by the evidence, that reasonable and probable grounds exist to believe that the required statutory preconditions are present. In the case of section 36(1), the court may authorize a person to apprehend the child to give effect to the custodial or access rights of the applicant for such an order. In the case of section 36(2), the court may direct a police force to apprehend the child and deliver the child to the person named in the order.

[42] An application for a section 36 order may be made at any time, including in an application for custody or access. [14] Almost invariably, it is the "police assistance" order in section 36(2) that is sought. In practice, it is generally necessary that there be an existing court order in force that establishes entitlements to custody of or access to a child. Moreover, such entitlement should be determinable from the provisions in the order itself, otherwise, police forces will generally decline to become involved in enforcement.

[43] Neither "custody" nor "access" are defined in the Children's Law Reform Act. However, there is a provision in section 20(5) of the Act that includes in the entitlement of a person to access to a child, the right to visit and to be visited by the child. [15]

[44] Although statutory language [16] relating to access almost always visualizes access as a right of the person, other than the child, who is involved in the access relationship, the prevailing jurisprudence considers access to be the right of the child. [17] This legal anomaly (or perhaps fiction) is also reflected in the wording in court orders that contain provisions for access. Seldom, if ever, do such orders provide for the child to have access to someone, or to be entitled to have access to someone. Even disregarding the word "access", which may have some unwanted connotations, court orders simply do not speak of any right of the child to visit or to be visited by a non-custodial parent, or grandparent or anyone else. [18] The wording of most access orders are not child centred. However, the best interests of the child criterion, which is the yardstick by which courts make access orders, is very definitely child centred.

Variation of Custody – Analysis

[45] When litigants make multiple claims in their pleadings, some judicial triage is called for. This is a function that is particularly appropriate at the case conference and at the settlement conference stages. The objective is to focus the legal contest in the case on the important issues. The secondary issues are more likely to abate, and sometimes even disappear entirely.

[46] In this case, the main issue is the claim for a variation of custody. This is the most far reaching issue. If the father, K.1, succeeds in his claim, other claims in the case will fall into place, or will be rendered moot. [19] Accordingly, it is logical to consider this claim first.

[47] Of the 26 paragraphs in the order dated August 13, 2003, only one deals with custody. That paragraph gives sole custody of K.2 to her mother. The order dated April 19, 1999, which it replaced, also awarded sole custody to the mother. Both of these orders were made on consent of the parties. The mother had de facto custody of K.2 from her birth. She has always been K.2's primary caregiver, and K.2 has always lived with her mother.

[48] The father K.1 has always been an access parent to K.2. His attempt to obtain joint, or perhaps even sole custody, of K.2 in the second proceeding was unsuccessful. He did, however, make some gains as an access parent by the order of August 13, 2003. His access pursuant to the terms of that order was quite liberal.

[49] Notwithstanding this, the father did not acquire the rights of a custodial parent. Nor did the child have her residence with him. Her time with him was always in the nature of an access visit.

[50] This history represents the status quo in terms of custody and access. While courts can and do change the status quo, they do not do so lightly. The presumption that maternal access is in the best interests of the child, K.2, flows from the existing order. It is up to the father, who is asking to change the existing custody order, to satisfy the court that the changes in circumstances that have taken place since the order was made, justify the change in custody he is seeking, and that they do so because this is now in the best interests of the child.

[51] After twenty days of trial, especially with the benefit of cross-examination of witnesses, the court is able to appreciate the cases of the litigants with more clarity. The recurrent theme running through the case of the father with respect to variation of custody was that of parental alienation. [20] I gather that it is because of the mother's conduct in alienating him from K.2 that he feels that a change in custody is needed.

[52] Reduced to the simplest terms, the father, K.1, alleges that the mother, P., is a master manipulator. According to him, she has managed to completely alienate his daughter K.2 from him. She has turned what he viewed as a mutually affectionate, loving and beneficial relationship into one characterized by disrespect, disdain and detestation by a daughter for her father.

[53] That this is what he believes is very evident from a twenty page quasi-diary [21] which covers the four months following the Island Lake incident. This very subjective account of events over this period of time is peppered with references to PAS, to the mother undermining his integrity as a father, and to some sort of malicious programming and indoctrination of the child. The rhetorical interrogative "What else can it be but Parental Alienation Syndrome?" is repeated a number of times in his account. His statement written sometime in late October 2006 is unequivocal:

"My position is there is a PAS well undeway (sic) and my child is being abused by P.B.."

[54] I do not conclude that K.2 has Parental Alienation Syndrome. I do not conclude that the mother, P., has engaged in conduct either designed to alienate K.2 from her father, or which has had the effect of doing so accidentally.

[55] It is noteworthy that it is only the father who is alleging parental alienation has taken place. He has no psychological or other expert to back up his belief. At one point, a psychological assessment of K.2 was sought by him but the mother did not agree. A motion for an order for such assessment was contemplated by the father. But he never brought this motion. A belief by the father, even a strong one, is not evidence of parental alienation. Not one of his witnesses make such an allegation.

[56] The mother denies she has done anything to alienate K.2 from her father. In fact, she can point to a number of occasions where she went out of her way to encourage a reconciliation between K.2 and her father. In considering the evidence of the mother and the father, it is obvious that there was a significant rift between the father and daughter. This estrangement was unilateral flowing from K.2. It deepened and worsened over the months of September, October and November, 2006.

[57] The mother accompanied by K.2, met with the father, at his request, within two days of the Island Lake incident, with a view to resolving the family crisis and to start a healing process.

[58] The mother, with K.2 and the father, attended with Crisis Invention Counsellor Deb Hayes, a day or so later.

[59] The mother agreed to supervise contacts between the father and the daughter. Had she not done so, the Children's Aid Society may well have intervened. She did so for a half dozen or so occasions when K.2 and her father had face to face contacts. She allowed the father to come to her house. She had coffee with him, both at her home and at a coffee shop. He accompanied the mother and daughter to swimming lessons at the YMCA, to the Group Health Centre, even to go shopping. Contacts between mother and father were almost daily, often more than once a day. The majority were initiated by the father.

[60] This is not behaviour that is characteristic of a mother trying to alienate the daughter from the father. Quite the contrary. In fact, as K.2's estrangement from her father grew, the mother intervened at times to remand K.2 for her rude and insulting behaviour towards her father. At times, the mother had to bear the brunt of significant misbehaviours of the daughter directed at herself.

[61] Not one of the persons from any of the agencies that were involved with the family made any mention of observations of any behaviour that might be construed as maternal parental alienation. Three society workers, including one who had some experience with cases involving parental alienation, all indicated that they saw no signs of parental alienation in the behaviour of the mother.

[62] There was no mention by the father of parental alienating conduct by the mother from 2003 to 2006. It is no coincidence that the father's belief arose only after the Island Lake incident.

[63] The Island Lake incident was downplayed in the evidence and in the testimony of the father. It is true that he apologized for his conduct. He also admitted the gravity of his behaviour and the impact this had on K.2. However, his behaviour following this incident demonstrated a significant lack of understanding of, and sensitivity to, the feelings of the daughter. He clearly did not empathize with the trauma which he had caused to his child. His agenda was to restore the relationship that he had enjoyed for several years prior to this incident, and to do so as quickly as possible. He was relentless in his pursuit of a reconciliation.

[64] In fact, the impact of the Island Lake incident on K.2 was enormous. One of the basic ingredients of a healthy parent-child relationship is the trust that the child places in the parent to provide safety and security. The Island Lake incident represented a complete disintegration of trust. It was not just that the father was neglectful of his duty to protect her from external dangers, he himself became a source of danger for her. Refusing to let her leave placed her in a situation of continuing danger from him. Engaging in abusive language and violence in her presence, especially with persons for whom she had positive feelings, was highly upsetting. Being pursued by a drunken father driving a truck could have been nothing short of terrifying. It is hard to imagine the fright of a ten year old girl that would cause her to run through the bush and into a lake to escape from her own father.

[65] Based on the evidence, I reject parental alienation as an explanation for K.2's attitude and conduct towards her father. The inference that to me is unavoidable is that K.2's behaviour changed primarily because of what her father did at Island Lake. Her estrangement was a logical and natural response to the fear and mental trauma she experienced on that day.

[66] The father has only himself to blame for what took place at the lake. His reference to having a couple of glasses of wine together with the effects of a hot, sunny day as the reason for his behaviour is classic minimization. In fact, he was highly intoxicated. OPP Officer Van Den Diepstraten, a policeman with many years experience described the father's level of intoxication as high. This is consistent with his bizarre behaviour. The officer commented that this callout was memorable, ranking in the top ten in his career.

[67] That he was required to abstain from consumption of alcohol was in both the 1999 order and the 2003 order. According to the evidence, alcohol factored into all of his criminal convictions. His drinking, while exercising access, was egregious conduct on his part.

[68] The father, in my view, is the major contributor to the estrangement of K.2. He would not give her either the space or the time to deal with the effects of her trauma. He disregarded her clear wishes that he not attend at one of her athletic events. He brushed aside her desire to see less of him for the time being. He went to her school and into her desk in her classroom without her knowledge or consent. He disregarded what, to any father of normal sensitivities, would have been an obvious desire on K.2's part to distance herself from him. He did not want to see what he was seeing; he did not want to hear what he was hearing.

[69] Starting this court proceeding and attacking the mother with allegations of parental alienation, of excessive drinking, of being manipulative and of being an inadequate parent seems to have entrenched K.2 even more in her estrangement. From comments that she hardly kept secret, it is apparent that the court proceeding had the effect of creating additional stress for her. She was fearful that she would have to see her father, maybe even have to live with him. She remained adamant that she would not do so, would run away if it came to that. She defended her mother whom she perceived to be under attack through the court process by the father.

[70] In summary, the father is to blame for the present state of estrangement, not the mother. K.2's poor relationship with her father and her attitude towards him are a consequence of his behaviour both before and after the Island Lake incident.

[71] The issue of variation of custody is complicated by the disclosures of sexual touching made in the course of the litigation. That K.2 made these disclosures is well documented. Whether what she said had happened is true is another issue. K.2 did not testify at the trial in this case. Accordingly, whatever information this court has as to any sexual improprieties between K.2's father and her is necessarily hearsay.

[72] The evidence of the alleged sexual misconduct was introduced through Ms. Mellis, a child protection worker with the Children's Aid Society of Algoma. She and a police officer (Constable Gjos) were the persons present during the joint police-society investigation when K.2 was interviewed. That interview was videotaped and was available for viewing by the court. Counsel for the mother sought to have the video and the testimony of Mellis admitted for the truth of the statements made by K.2. I declined to accept these for this purpose. They did not satisfy the necessity and reliability criteria in the current jurisprudence relating to admission of hearsay statements. There was a secondary reason for which the admission of this evidence was sought. This was to show K.2's state of mind at the time of making these statements.

[73] I do accept this evidence for this limited purpose. The interview took place on April 24, 2008. I have no reason to doubt the veracity of Ms. Mellis' observations of K.2 as recounted by her. She was described as nervous, at times withdrawn, hesitant and reluctant to speak, and crying. K.2 was clearly distressed with participating in this interview, and being questioned about her father. This was approximately 20 months after the Island Lake incident. Counsel conceded that it was unnecessary for the court to make a judicial finding as to whether the sexual touching of the daughter by the father did or did not occur. I agree that it may not be essential to do so in order to make the determinations called for in this case. However, had these findings been made, the case of the father would have been considerably weekend and that of the mother considerably strengthened.

[74] On the issue of variation of custody, once the court finds that there has been a material change in circumstances that affects the condition, means or circumstances of the child, or the abilities of the parents to parent, it moves on to make a fresh inquiry of what is in the best interests of the child. In doing so, the Children's Law Reform Act provides a list of mandatory considerations in section 24(2).

[75] In this case, virtually all of the considerations in paragraphs (a) to (h) of section 24(2) favour a continuation of sole custody in favour of the mother.

(a) K.2's ties with her mother exude love, affection and a healthy parent-child intimacy. She describes her mother to OCL investigator Mr. Zuliani, as being very close, irreplaceable as her best friend. In stark contrast, K.2 had nothing good to say about her father. She recounted that he would call her fat, ugly and dumb when she younger. He would put her down. She anticipated being nervous and anxious at the prospect of meeting with him. She wanted no contact with him, not even by mail. K.2's maternal family relationships were close and loving. She felt she never measured up to her paternal extended family, and felt that they supported her father rather than her. She has had little, if any, contact with them for several years.

(b) Perhaps the most significant consideration in the best interest test is the views and preferences of K.2. She is now age 15, and will be 16 in December of this year, less than one-half year away. K.2 has been consistent in not wishing to see or interact in any way with her father for over five years – and she has not. Her views and preferences are not unknown. She has counsel representing her in this case as well as a social work investigator, and they both advocate strongly against any change in custody. K.2 is at an age where courts are relatively ineffectual in the orders that they can make in these circumstances. Moreover, K.2 is quite intelligent (at least academically) and knows what she wants. Her views are entitled to considerable weight [22] from this court.

(c) K.2 has lived her entire life with her mother. Her mother owns their present home. The mother has had relationships in the past but none that have been lasting. The mother-daughter relationship has been the most stable of any in that home. There is no justification for the disruption of this child's home environment that would result from a change in custody.

(d) The mother has always been both willing and able to provide K.2 with guidance, education and other necessaries of life. She has sought out professional help when she felt K.2 needed it. Her care of K.2 has been more than adequate. I have to discount the father's allegations that suggest that the mother has been neglectful or otherwise unfit. The evidence of the society, to which referrals had been made, invariably found that K.2 was looked after responsibly (except for one occasion while being babysat). The father has, as well, been more than willing to meet K.2's needs. And in many ways, perhaps different ways than those of the mother, he has tried to do so. For example, he encouraged K.2's love of music. However, the father's track record is not anywhere near as good as that of the mother. As an access parent he was clearly handicapped in comparison to the mother. But even as an access parent, he was not a model parent. Much of this resulted from his consumption of alcohol.

(e) The plan of the mother for K.2 was to maintain the status quo. This appears to be a plan that is working for K.2. The most recent evidence is that she was doing exceptionally well academically, continued to be involved in extracurricular activities, and was maintaining good relationships with her mother and maternal family members. The father's plan is to raise a well educated and well rounded girl. He presented a very comprehensive plan that covers virtually all aspects of K.2's life (except boyfriends). Unfortunately, this plan is premised on him being the parent that is parenting her to adulthood. In this plan, the mother would have only supervised access to K.2 at the Supervised Access Centre, until K.2 has had an enduring recovery from her alienation, and the mother acknowledges her role in this alienation. This plan would work wonderfully well in Utopia. It is pie in the sky here. The father fails to include how he will overcome K.2's refusal to have anything to do with him. The court is left to speculate that this will be overcome by a court order that K.2 will be forced to obey. Moreover, his plan involves a total disruption of the most significant relation that K.2 has – with her mother. Nor does the father's plan mention anything about what is to be done about the inconvenient fact that she has told a number of people that he had sexually molested her, an allegation that she has never recanted.

(f) "Family unit" does not mean anyone beyond the immediate family. In comparing the permanence and stability of the mother's and the father's family units, I conclude that the mother's offers marginally more in terms of these two qualities. They both appear to own their own homes. They have a history of long term residency locally. My guess is that they will stay put for a long time. As for stability, the father seems to be somewhat more erratic than the mother. He has, for example, a criminal record which the mother does not. His sources of income seem to be somewhat irregular, part from employment as a teacher, part from rental properties, and possibly part from (musical) performances. He has had his driver's licence suspended for a drinking and driving offence. He has something of an obsessive/compulsive personality that gets him into trouble. The mother seems to be much more laid back. She has no history of criminal convictions. Her relationships with other men seem to be the main area of instability in her life. However, these have all been relatively brief. The factor that looms largest in terms of stability is abuse of alcohol. Both parents drink, sometimes to excess. From the evidence, my conclusion is that alcohol abuse has been a much more chronic and pervasive problem for the father, and is a much more serious one. It is very definitely a destabilizing factor in his life.

(g) The abilities of the mother and the father to act as parents to K.2 are quite far apart. Parenting is not defined and is such a comprehensive concept that it defies any concise definition. It certainly means providing food, clothing and shelter for the child. However, parenting also has relational requirements on a more emotional level. The father may be more able to provide the physical things that a child requires. However, it is the mother who clearly surpasses him in supplying the emotional ingredients in parenting. K.2 has a clear and strong attachment to her mother. It appears to be non-existent with her father. The mother seems to be able to provide nurturance, support, encouragement, affection, security and other intangibles that children need to grow into healthy adults. The father comes far short in these categories – and not for lack of trying as he clearly loves his daughter. Parents of a child should be supportive of one another even if separated. The mother's attitude towards the father as a parent has historically been supportive, albeit with some caution. The father's has been anything but. The OCL report prepared in connection with the second proceeding between these parties contrasts these very disparate parental attitudes. The other areas in which the father is week are in his sensitivity, his ability to pick up and respond to cues, and in his overall communication style.

(h) There is no advantage to either parent in terms of blood relationship. They are both biological parents of K.2.

[76] Past conduct is relevant only if its relevance is to the ability to act as a parent. In this case, the father's drinking to intoxication while in a care giving role is significant. Had he become just a quiet drunk, the event at the lake would likely have been less serious. However, his behaviour while intoxicated created danger and put his child at risk of harm. His past conduct with respect to alcohol predates the incident at Island Lake. His problems with alcohol have surfaced before in significant ways (drinking and driving for example). He does not really believe he has a problem with alcohol. He has never really addressed this problem in any systematic way despite the opinions and recommendations of others in the healthcare field that he do so. [23]

[77] Other past conduct involves his propensity to involve himself in affairs that are really not his business. The most blatant example is his inability to let the mother move on with her life. He was clearly devastated by the ending of their relationship and what he perceived as a separation from his child's life. He has continued to intrude into the mother's life in many different ways, some socially acceptable, if unwelcome, and some that were clearly beyond the lines of acceptability. He was convicted of a domestic offence, and also for breach of a probation order condition. He always knows what the mother is doing in terms of her personal relationships. At times, he has driven by her home to see who has been there overnight. This compulsion extended to K.2. She has expressed concern at his knowledge of her affairs and her life in general, and how he invades her privacy. These are characteristics that impact adversely on the ability to be a good parent.

[78] In summary, there is no justification for a variation of custody in favour of the father in this case. Based on the best interests of K.2, his claim for this must be dismissed.

Paternal Access – Analysis

[79] What is abundantly clear is that the very detailed access order of August 2003 can no longer continue. There have been no access visits that have taken place as contemplated by that order since 2006. I do not fault the mother for that development. It is the child who erected the road blocks to meaningful access, and she did so with justification.

[80] At this stage, with the child at age 15, a court should not force her to see and spend time with someone she doesn't wish to see and spend time with. The court would not require this of any adult. K.2's refusal to participate in paternal access is not without good reason. It may not be the most desirable way to deal with the situation. However, it is the way that she has chosen for the time being.

[81] I am reluctant to make an order of "no access" to the father, as this not only closes the door, it slams it shut. The father, K.1, will always be a father to K.2, and he will always be her parent. This estrangement is not normal in child-parent relationships.

[82] In all of the circumstances, I feel that paternal access is best left in K.2's hands. It would be rather meaningless for her to see her father if she was to be forced to do so against her will. Courts should be wary of making orders that they may have no ability to enforce.

[83] The access provisions of the order dated August 12, 2003 should be terminated. These include paragraphs 3(a) to 21 excluding paragraphs 11, 12, 13 and 14. In place of these there should be a provision that access to the father shall be subject to the wishes of the child.

Assistance Orders – Analysis

[84] These claims under section 36(1) and section 36(2) can only be dismissed in view of the results of the custody and access issues in this case. There is no utility to such orders in the circumstances.

Costs

[85] With respect to the claims of the parties for costs, if either party seeks costs, the following applies:

(a) The person seeking costs shall serve on the other party and file with the court within 60 days of the release date of these Reasons:

(i) a notice of motion setting out the specific claim being made;

(ii) any affidavit or other documentary evidence in support;

(iii) written submissions, including, if desired, a draft bill of costs;

(iv) citations only to any case law or other jurisprudence being relied upon.

(b) The person against whom costs are sought shall, if desired, serve on the other party and file with the court, within 60 days following service of the notice of motion for costs:

(i) any responding evidence;

(ii) written submissions;

(iii) citations only to any relevant case law or other jurisprudence being relied upon.

(c) The foregoing provisions apply also to the Office of the Children's Lawyer.

[86] I am indebted greatly to counsel, not only for their assistance in presenting the cases of their respective clients to the court, but even more for their professionalism in doing so. This was a difficult case to bring to the point of trial. The trial itself was arduous and raised some important evidentiary issues. The parents and the child were well represented throughout.

Released: July 5, 2012

Justice John Kukurin, Ontario Court of Justice

Footnotes

[1] See B. v. H., [2002] O.J. 5502

[2] S. 36(1) Where a court is satisfied upon application by a person in whose favour an order has been made for custody of or access to a child that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to custody or access, as the case may be.

(2) Where a court is satisfied upon application that there are reasonable and probable grounds for believing,

(a) that any person is unlawfully withholding a child from a person entitled to custody of or access to the child;

(b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or

(c) that a person who is entitled to access to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return,

the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order.

The father asked that the paternal grandmother be authorized under section 36(1).

[3] R. 20(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. It would be unfair to the party who wants questioning or disclosure to carry on with the case without it.

2. The information is not easily available by any other method.

3. The questioning or disclosure will not cause unacceptable delay or undue expense.

Although an order was made, it does not appear that the father ever followed up with any actual questioning.

[4] Trial management conferences were held November 10, 2008, June 9, 2009, June 23, 2009, for all of which, trial management conference memoranda were prepared and circulated and included in the continuing record. A fourth trial management conference was held on December 17, 2009, half way through the trial when it became evident that additional trial days would be necessary to complete the case.

[5] R. 12(5) If it would be more convenient to hear two or more cases, claims or issues together or to split a case into two or more separate cases, claims or issues, the court may, on motion, order accordingly.

[6] This could have resulted in evidentiary problems as evidence on applications is generally viva voce, and evidence on motions to change is by affidavit. For this case, there was affidavit evidence in-chief ordered for trial, but all affiants were available for cross-examination viva voce.

[7] Which included a condition he attend counselling as directed by his probation officer, including for alcohol abuse.

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

[9] This remained the mother's formal claim. However, at trial, she was clearly advocating a change to "no paternal access".

[10] S. 24(2) The court shall consider all the child's needs and circumstances, including,

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

(i) each person entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

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

[11] S. 24(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

[12] S. 24(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

[13] See footnote 2, supra.

[14] S. 36(8) An application under subsection (1) or (2) may be made in an application for custody or access or at any other time.

[15] S.20(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

[16] For example, section 20(4) CLRA speaks of a parental entitlement to access.

[17] See Strobridge v. Strobridge, [1994] O.J. No. 1247, 18 O.R. (3d) 753, 115 D.L.R. (4th) 489, 4 R.F.L. (4th) 169 (Ont C.A.) at paragraph 42 "It is now well established that access is not to be viewed as a parental right"

[18] Perhaps in orders providing for sibling access, it might be said that access is expressed as the right of a child, at least one of them.

[19] For example, if custody is varied in favour of the father, his claims for access enforcement orders become unnecessary. His child support order will almost certainly terminate. What will be left is a determination of maternal access terms, and costs.

[20] PAS is the acronym for Parental Alienation Syndrome. It is an acronym used frequently by the father.

[21] It is not a diary in the sense of chronological entries as some after the fact editing is apparent in the entries.

[22] See Kincl v. Malkora, [2008] O.J. No. 2551 (Ont. C.A.)

[23] His former counsellor, Mr. Apostolon, recommended this. The father apparently consulted Mr. Mertes at the Addiction Treatment Centre, but no report of this consultation was ever provided nor of the outcome of their meetings.