Court File and Parties

Court File No.: FD408/18 Date: 2021-01-08 Ontario Superior Court of Justice

Between: M.P.M., Applicant And: A.L.M., Respondent

Counsel: Jelena Buač, for the Applicant Self-represented, for the Respondent

Heard: September 23, 24, 25 and December 16, 2020 - by Zoom

Before: Justice A.D. Grace

A. Introduction

[1] For reasons released on April 7, 2020, I concluded that A.L.M. (“A.M.”) had systematically [1] and persistently alienated the parties’ children to such an extent that the applicant’s relationship with his then eleven-year-old daughter, D.M. and nine-year-old son, S.M. had been destroyed. [2]

[2] Despite regarding a change in custody as a step of last resort, I would have made that order, without in-person access or other communication between mother and children for several months “in an effort to provide time for the immense damage caused to be reversed.” At para. 413, I added:

That order would have been made notwithstanding the fact it would, in the short-term, have been devastating for the children who are currently, as a result of A.M.’s orchestrations, under their mother’s complete control.

[3] In my view, that extraordinary disposition would have been in the best interests of the children.

[4] However, that was not what was ordered. The trial pre-dated the pandemic. By the time reasons for decision were ready to be released, COVID-19 was upon us. An unexpected, world changing event added a deep and impenetrable layer of uncertainty and concern that necessitated reconsideration and modification.

[5] With respect to the child focused issues, I ordered that: (i) the parties share custody, (ii) the children live primarily with A.M.; (ii) the applicant spend time with the children on a gradually increasing basis; video access once per week commencing in mid-April, increasing to twice in alternate weeks starting in early May; (iii) the applicant also have alternate weekend in-person access beginning on Father’s Day weekend in June 2020; and (iv) the custody and access provisions be reviewed sometime after September 7, 2020.

[6] A.M. was also ordered to immediately seek therapy concerning her alienating behaviour in order to gain insight into her conduct and enable her to develop and implement strategies that would result in the promotion, by her, of a meaningful, positive and loving relationship between the applicant and the children. Proof that she had started down that path was required by June 15, 2020.

[7] Registered psychologist Dr. Dilys Haner of the London Family Court Clinic (“London Clinic”) was appointed pursuant to s. 30 of the Children’s Law Reform Act to assess and report to the court on (i) the needs of the children and (ii) the ability and willingness of the parties to satisfy them. The report was delivered on July 31, 2020 as the court had requested (the “Haner report”).

[8] At the time the review hearing was scheduled, the parties were represented by counsel. Shortly before commencement, A.M.’s lawyer informed opposing counsel and the court that he was no longer retained. On September 23, 2020, he sought and received leave to withdraw. A.M. participated in the hearing without a lawyer.

[9] Decision was reserved subject to an initial endorsement addressing issues that simply could not wait. Some of its terms will be described later in these reasons.

[10] Sadly, this matter descended even deeper into the abyss after the hearing ended on September 25, 2020. That resulted in the matter continuing on December 16, 2020. Once again, decision was reserved.

B. The Sources of Evidence on the Review

[11] The review was to have been conducted over parts of three consecutive days commencing on September 23, 2020. An affidavit sworn September 18, 2020 served as the applicant’s direct examination. He was then cross-examined by the respondent. Counsel for M.P.M. (“M.M.”) called two other witnesses: John Field, the registered psychotherapist engaged by A.M. and Dr. Haner. A.M. also testified briefly. Several documents were introduced on consent.

[12] As mentioned, as a result of further developments, the review was reopened and ended with a half-day hearing that was held in mid-December.

[13] Each party filed further affidavit evidence in accordance with directions given beforehand. The applicant and respondent were cross-examined on their affidavits sworn December 6 and 11, 2020 respectively. M.M. also filed an affidavit of clinical psychologist Dr. Louise Sas sworn December 7, 2020. Her presence for the purpose of cross-examination was not requested.

[14] I start with the events leading up to the commencement of the review in late September.

C. Events post April 7, 2020 to the date of the Review

[15] By way of brief recap, the current ages and grades of the parties’ daughter D.M. and son S.M. are 12 (grade 6) and 9 (grade 4) respectively. M.M. and A.M. separated in December 2017. By the time the trial decision was released, M.M. had not spent meaningful time with the children for almost two years. The three-year mark is in sight.

[16] Occasionally I will mention something that occurred between the end of the trial on October 24, 2019 and the date of the release of the reasons for decision on April 7, 2020 (the “trial reasons”). However, the primary focus will be on the period that followed because the release of the reasons marks the date on which the parties became aware of the court’s findings and disposition.

[17] As noted, I ordered that M.M. have video access with the children each Wednesday evening starting April 15, 2020. The calls were to last a minimum of fifteen minutes. Alternate Sundays were added to the mix as of May 3, 2020, with alternate weekend in-person access to start on June 19, 2020. That would have allowed the applicant to spend Father’s Day in the company of the children.

[18] Things went abominably from the beginning. M.M. offered this summary of the FaceTime calls:

…I have not actually been able to see the children during the calls. Generally [A.M.] picks up my call and leaves her phone on a surface with the camera on. I sometimes see the children walking by the camera but they do not come in front of the camera so that I can see them and [A.M.] does not take the phone with her or directs [ sic ] the camera at the children. I can hear the children when they say things to me, but I do not get to see them. Lately [A.M.] has not been picking up my calls right away and I often have to call back many times before getting a response.

[19] C., the applicant’s current partner, has been and continues to be a topic of conversation. April 15, 2020 was the first remote visit. M.M. deposed that D.M. alleged he had chosen C over her. Three days later, A.M. told the applicant that the parties’ daughter would blame C. forever for what had occurred.

[20] That sort of commentary was not new. While the trial decision was under reserve, the respondent told the applicant on the parenting application that she would like to send more photographs of the children to him but “wasn’t sure if it hurts you to see your babies knowing you haven’t seen them in three years because of your affair.” [3]

[21] M.M. continued to try to speak to the children on the appointed days throughout April and May 2020. None of the attempts went well. While the applicant offered some specifics in his affidavit, the following general description is a fair summary of what he said transpired:

The FaceTime calls continued to follow the same pattern. I would say a few short statements and then [D.M.] would begin to yell at me. [S.M.] was rarely heard. I would ask [A.M.] to let me see the children and [A.M.] would say things like “how do you want me to force them?”

[22] Sadly, in-person access never started. M.M. saw the children briefly on April 28, 2020. He had picked up and dropped off a piece of furniture at A.M.’s request. According to the applicant, the children were rude and the respondent unhelpful when asked to interject with a positive comment about M.M.’s attendance at D.M.’s soccer games.

[23] Following a video access visit on June 10, 2020, M.M. advised Dr. Haner by e-mail that D.M. had alleged S.M. had tried to end his life twice and that she wanted to do the same. Such comments had not been made before.

[24] Soon afterward, Dr. Haner conducted what she described as “informal suicide risk assessments” with the children. In a June 15, 2020 letter sent to the parties’ counsel, Dr. Haner explained why she did not think an attempt at in-person access was appropriate at that time. In part, she wrote:

I am concerned that, should the parents attempt to carry out the parenting plan over the Father’s Day weekend…the children are likely to act out impulsively and put themselves at risk of physical injury. Their distress surrounding shared parenting time is not likely to change until my assessment is completed and the parents can move forward with formalized and tailored supports.

[25] A case conference was arranged and conducted on June 17, 2020. On a without prejudice basis, the parties agreed to suspend that portion of the court’s order until Dr. Haner’s final assessment was in hand. [4]

[26] Dr. Haner witnessed two virtual visits in June 2020. She offered this account:

The assessor was able to observe the children interacting with their father on two attempted access visits by Zoom on June 3 and 17, 2020. The children refused to sit in front of the camera, even after considerable coaching by the assessor. The assessor coached both parents ahead of these visits and observed [A.M.] to repeat instructions to the children ahead of the second observation, that the children were to focus on not yelling and simply listen or be quiet during the access. However, on both occasions, [D.M.] initiated yelling at her father, including allegations that he left her for [C], insults toward him and [C], rehashing that [M.M.] had kissed [C] and had an affair, telling [M.M.] he was a liar, and saying that it was his fault that they wanted to kill themselves. Both children screamed at [M.M.] and cried throughout. After [M.M.] left the calls, the children continued to be distressed and complained of not being able to eat, vomiting, and other somatic anxiety symptoms. They insisted on debriefing with the assessor, hurling blame at their father for ‘causing’ their distress. When they eventually settled, they made comments like, “I can’t do this anymore. I don’t want to do this anymore.” [5]

[27] In summary, during the remote access visits bitterness oozed from the children on the rare occasion they made a comment in their father’s direction.

[28] In her lengthy July 31, 2020 report, Dr. Haner recommended the children be referred immediately to a mental health professional who could help them manage their anxiety and improve their coping skills.

[29] The assessor suggested that the parties retain psychologist Brenda Sousa. Although they seemed interested, the inability of the parties to agree on the allocation of the fee between them caused Ms. Sousa to withdraw her offer to provide services on August 12, 2020. [6] That was a particularly odd result given the circumstances. A.M. had initially proposed that M.M. bear the entire cost. M.M. responded by saying he was unable to do so. However, he eventually agreed to the proposal. By that time, A.M. regarded the applicant’s offer with distrust and refused to accept it. [7]

[30] Dr. Haner provided several other names the following day. She urged the parties “to let go of who pays for therapy for the time being and get [S.M.] and [D.M.] in to see someone.”

[31] Sadly, by the time of the review, D.M. and S.M. had not received any mental health assistance.

[32] Nonetheless, M.M. continued his attempts to exercise remote access each Wednesday and Sunday. His desire to spend meaningful time with D.M. and S.M. was not reciprocated. As in the past, the children have refused to engage him at all.

[33] In a September 8, 2020 e-mail, A.M. let the applicant know that she did not think he was trying hard enough when she wrote:

Access Calls: Given that since Dr. Haner’s report you have been attending while away from your home ([C.’s family’s] residence, boat, truck...) I am wondering if you would be agreeable to the children doing the same. To date I have ensured that they are home and alone for access. As the children have stated, they feel you do not care and would rather be with friends, family and your current partner doing “fun activities” (drinking, dinners, fishing...) during access calls.

[34] Since it is undisputed that the children do not participate in any meaningful way in the visits, the critique of M.M.’s conduct is puzzling. In any event, he disputes the respondent’s description of his behaviour.

[35] A mid-September virtual access visit was particularly unpleasant. According to M.M. he had recently agreed with the respondent’s suggestion that D.M. be enrolled in dance lessons and S.M. in indoor rock climbing. However, he did not feel financially able to support their participation in art classes. M.M. described what happened next:

On … September 16 th during the regular FaceTime call [D.M.] brought up that she cannot do art classes because of me. She said that I do not want to spent [ sic ] money on her because I spend money on my “fat fucking girlfriend.” [D.M.] repeated this a few times. [A.M.] did not interject or correct [D.M.].

[36] As noted, September 23, 2020 marked the first day of the review.

D. Dr. Haner’s Evidence

[37] I have mentioned Dr. Haner several times already. She accepted the court’s request to assess and report on the needs of the children and the ability and willingness of the parties to satisfy them. A more detailed review of her report and oral evidence follows.

[38] Dr. Haner was of the view that A.M.’s “mental health crisis” following separation negatively impacted the children. Fortunately, in time, the darkness enveloping the respondent eased somewhat. Sadly, by then, the children’s negative view of their father was well entrenched. The assessor explained the problem and the implications in these words:

Once their mother had experienced some stabilization … [the children] had already experienced a period of months with no face-to-face contact. They refused him and then interpreted his absence (which he initiated to decrease their distress and allow time for the family therapy to work) as evidence of further rejection of them. Ironically, the children’s estrangement from their father and his family likely contributed to their experiences of trauma.

[39] Dr. Haner addressed each child’s personality. With respect to the parties’ daughter, Dr. Haner said:

[D.M.] impressed as one of the most strong-willed and outspoken children ever encountered by the assessor…Her emotional development appeared less developed… She believed she was entitled to make all her own decisions regarding her person, believing she could override a judge’s orders…She…explained…that although her mother had frequently attempted…to influence her to have a relationship with her father, that her mother was wrong in thinking she knew what was best for her. She could not conceive that her mind would ever change. [8]

[40] S.M. was quite different. The assessor thought he was an extremely sensitive boy. In her report, Dr. Haner offered the following commentary:

[S.M.] impressed as displaying special needs, manifested by a learning disability in reading and writing, distractibility and attention, and some difficulties with impulse control that seemed somewhat out of step with same aged boys. He wandered off easily and frequently during Zoom sessions … He could be redirected. He often appeared to ‘parrot’ statements made by [D.M.] … [S.M.’s] anxiety symptoms manifested as severe and somatic. He had head aches [ sic ], stomach aches, vomiting, diarrhea, a rash, light-headedness and nightmares. Reports of all but the rashes were confirmed by other professionals. [9]

[41] During her oral testimony, Dr. Haner noted that D.M. and S.M. blame C. for their father’s departure from the home.

[42] Dr. Haner also made some observations concerning the parties. Dr. Haner explained that A.M. has a genuinely held belief that she was the victim in an abusive relationship. In her report, the assessor said in part:

[A.M.] views her ex-partner with extreme suspicion, paranoid thinking, and displays overwhelming feelings of victimization. [10]

[43] The assessor used the same words when describing M.M.’s views concerning the respondent. [11]

[44] Dr. Haner told the court that A.M. had started to realize her conduct had, unintentionally, impacted the children and contributed in 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.

[45] 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.

[46] 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. [12]

[47] 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.

[48] Further, there had been a significant development. Dr. Haner learned that C. 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 C.

[49] According to Dr. Haner the children are in this position:

Both have clinically significant symptoms of severe anxiety and moderate disturbance of mood. It is evident that they have been exposed to prolonged and excessive stress that is caused by the volatile parent relationship that has been characterized by escalating conflict, and likely some domestic violence…Exposure to intense parent-child conflict is associated with an increased probably [ sic ] of serious long-term adjustment problems. The assessor’s observations of the children and independent input of two school professionals…suggest that both children have been traumatized by their experiences within the family. [13]

[50] Tellingly, Dr. Haner wrote:

This is an impossibly difficult situation in which there is no good answer. [Emphasis in original]

[51] Dr. Haner is of the view there is no solution to the current problem that does not carry with it risk of further damage to the children. She was concerned that the negative views of their father would cause D.M. and S.M. to regard themselves in a similar light. That, in turn, could detrimentally affect their social and emotional development and function in the short and long-term.

[52] The assessor thought:

…considerable groundwork and support would likely be required over a long-term plan to gradually but steadfastly move this family toward healthy and meaningful time for the children and father together, and to successfully blend into a relationship with [C.], who will be their eventual step-mother and mother to their half-sibling.

[53] With respect to the children, Dr. Haner wrote:

[D.M.] and [S.M.] likely require extensive, long-term therapeutic intervention and support to learn to cope with their experiences and in ultimately reconciling their relationship with their father to develop healthy and secure relationships with him consistent with their best interests. [14]

[54] As noted, Dr. Haner believes the children have been severely traumatized. She fears that separation from their mother, their exclusive caregiver for almost three years, could be catastrophic. Among other things, Dr. Haner recommended that:

a. The parties, the children and C. 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.

[55] Reintegration therapy was something Dr. Haner recommended be deferred until individual mental health needs were addressed. Consequently, she suggested the children “be temporarily relieved of the burden of worry that they will be ‘forced’ to live with their dad”. The assessor emphasized, however, that D.M. and S.M.:

…should not be inadvertently reinforced for dramatic behaviour by being allowed to completely ‘escape’ parenting time with their father. This would only further entrench them in their inaccurate beliefs that [M.M.] is not safe for them to be around and that they are exempted from authority.

[56] As noted, decision was reserved at the conclusion of the review hearing subject to the endorsement to which I have referred. Among other things, it required that:

a. The parties cooperate for the purpose of immediately choosing one of the mental health professionals recommended by Dr. Haner to provide the urgent and long-overdue counselling the children so obviously needed; and

b. A.M. take immediate steps to retain a health professional who would provide her with the therapy and other services outlined in the trial decision, since the person she had retained did not meet the required standard. [15]

[57] That endorsement was preceded by stern words to the parties because the continued failure to involve a mental health professional to help D.M. and S.M. is nothing short of egregious.

[58] There has been a great deal of discussion concerning the children’s mental health. However, no suggestion has reached the implementation stage. As Dr. Haner accurately noted:

One of the difficulties with this case is that many professionals have been involved; however, there has been no ongoing continuation of care or oversight in terms of monitoring and accountability.

[59] I would add this observation. Most of the professionals involved prior to trial were unfairly demonized by the children and by A.M.

[60] A.M. had expressed her agreement with Dr. Haner’s suggestions and her comfort with the assessor as case manager. While M.M. did not agree with all the recommendations in the Haner report, he fully supported the one concerning counselling for D.M. and S.M.

[61] With the release of the initial September 25, 2020 endorsement, it appeared the children would finally start to receive the help they needed. Unfortunately, the period of optimism was short-lived.

E. Post-Review Developments

[62] Dr. Haner’s list of recommended therapists included registered psychotherapist Heather Fredin. On October 23, 2020, the court received correspondence from Ms. Fredin. She confirmed her engagement to assist D.M. and S.M. “with building coping skills to manage stress and anxiety.” The first session had occurred on October 20, 2020 and appointments were to continue bi-weekly. [16]

[63] An e-mail accompanied Ms. Fredin’s initial letter. It advised that A.M. had taken the children to the hospital after the first session with Ms. Fredin. A request for a further court attendance was made and declined. However, the parties were advised of the court’s requirement that the children “faithfully attend bi-weekly counselling” with Ms. Fredin.

[64] The children were scheduled to see her on November 5, 2020. On November 12, 2020 the court was advised that Ms. Fredin would no longer be providing services.

[65] Ms. Fredin and Dr. Haner were asked to explain to the court what had happened.

[66] In a November 16, 2020 letter Ms. Fredin provided her account. She described the initial October 20, 2020 appointment in the following words:

…the children refused to enter the therapy room and fled from the office waiting room to the parking garage. [D.M.] appeared angry and stated that I would make her talk about her father. I stated this was not my expectation, that today was only about getting to know each other…[S.M.] did not appear to be as upset as [D.M.] … I spent time…attempting to facilitate the children’s comfort while holding the boundary that they are expected to attend the appointment…I also provided some brief parenting support to [A.M.] I encouraged her to set appropriate limits with the children and make her expectations of them known. I also cautioned [A.M.] that taking the children home could reinforce the oppositional behaviour we were trying to prevent…[A.M.] expressed empathy when the children were distressed and did not make efforts to set limits on…their behaviour…After an hour…the family left. Before leaving, [A.M.] shared…that she planned to take [D.M.] to the emergency room…as [D.M.] could not control her anxiety.

[67] In a subsequent affidavit, A.M. said she asked Ms. Fredin to conduct the sessions virtually. Ms. Fredin acknowledged that request in her report. She explained that in-person sessions were preferable “given the complexity of the children’s presentation”.

[68] A.M. deposed that the children wanted to see Ms. Sousa and thought Ms. Fredin “looked and sounded like Paula” [DeVeto]. The respondent stated that she “validated” the concerns of the children during the initial meeting but said participation in therapy with Ms. Fredin was “non-negotiable”. A.M. alleged D.M. “became escalated” after Ms. Fredin said the children were “behaving badly”.

[69] The respondent confirmed that she took D.M. to the London Health Sciences Centre (“L.H.S.C.”) where she was seen “by multiple professionals”, including a social worker named Dusty Foster who A.M. alleges has continued to help D.M. on an informal basis.

[70] That attendance resulted in a referral to L.H.S.C. based psychiatrist Dr. Sandra Fisman. Both parties filed the report Dr. Fisman prepared following an October 23, 2020 consultation. A.M. relies on Dr. Fisman opinion that D.M. “would meet the criteria for unspecified trauma and stress related disorder.” According to the psychiatrist, D.M. did not meet the criteria for a mood or any other anxiety disorder. I will return to Dr. Fisman’s report later in these reasons.

[71] Despite the court’s direction, A.M. only tried to take D.M. and S.M. to see Ms. Fredin one more time. Dr. Haner had been asked to attend the second session because of her history with the family. Nonetheless, the children refused to enter the building. Eventually, S.M. got as far as the waiting room. He went no further.

[72] Dr. Haner summarized the events of the day in her November 16, 2020 letter. She said:

My impression was that [S.M.] would be able to attend therapy with Ms. Fredin; however, the influence of his mother and sister prevented him from taking this final step. [D.M.] spent the appointment time in the parking lot, frequently screaming and threatening to commit suicide. This appeared very much to be a control tactic used…to attempt to escape the therapy session…Similarly, [D.M.] claimed she and [S.M.] were throwing up in the bushes, but this appeared to be a behavioural representation – I found no vomit in the area…

[73] Dr. Haner said the respondent made some effort to facilitate the session but did not fully follow through. At one point, A.M. suggested there was no other option except to forcibly take D.M. inside and declined to adopt an alternative Dr. Haner identified. In part, the assessor wrote:

[A.M.] disparaged Ms. Fredin within hearing range of the children. [A.M.] became more intensely upset, crying and raising her voice. In a loud voice, she said, “Well then, one of them is going to have to cut themselves before someone will help us! They’re going to self-harm.

[74] By then, the allotted time with Ms. Fredin had almost expired. A.M. and the children went in one direction and Dr. Haner in the other. Dr. Haner received a call from the respondent before she had gone very far. Dr. Haner was informed that D.M. had cut herself with a broken stick in the parking lot.

[75] Dr. Haner contacted the Children’s Aid Society of London and Middlesex (“CAS”) to report her concern that A.M.’s actions had caused D.M. to injure herself. A.M.’s affidavit addressed events pre-dating and post-dating the second appointment with Ms. Fredin but strangely, not that visit.

[76] The following day, A.M. told Dr. Haner of her desire to select the mental health practitioner who would work with the children. Indeed, A.M. has expressed that wish to the court several times. A November 10, 2020 e-mail from Ms. Fredin ended her involvement. She wrote:

Unfortunately, it doesn’t appear that [A.M.] has the capacity to facilitate the children’s therapy. As much as I would like to work with the children, it does not appear productive at this time.

[77] A.M. has identified her current preference. She asks the court to allow her to utilize the services of Jennifer Durasin at the London Centre for Trauma Therapy. A.M. says she has begun consulting Ms. Durasin and that the children would like to do the same. The court knows nothing about her. Dr. Sas is the clinical psychologist now proposed by M.M. to assist him, C., D.M. and S.M.

[78] In terms of contact between M.M. and the children, nothing has changed. According to M.M.’s most recent affidavit, FaceTime calls continue to be made but meaningful access does not occur. By way of example, the applicant deposed:

When I ask the children about how school is etc., they usually respond in one of two ways. Either that they do not want to tell me or that if I had not left them, I would know how they were but that I decided to leave them for a girl. I tell them that I want to talk to them and hear how they are doing.

[79] On November 10, 2020 C. gave birth to a baby girl. According to the respondent, D.M. and S.M. do not know of her existence. M.M. acknowledges that he did not tell the children of the pregnancy and has not spoken to them about the baby.

F. The Parties’ Positions

[80] The applicant continues to ask for a final order that would place the children in his sole care and without any communication with the respondent until permitted to do so by the court or agreement.

[81] Counsel for M.M. submits that A.M.’s attitude and behaviour have not changed since the trial decision was released. Any apparent cooperation is a façade. The relationship between father and children has not improved. In fact, the situation has deteriorated to an even more unacceptable level. There has been no meaningful contact virtually. There has been absolutely no time spent with D.M. or S.M. in person. Without justification, the level of hostility demonstrated by the parties’ daughter and son continues to be at the highest possible level.

[82] A.M. asked the court to accept Dr. Haner’s recommendations, with some revisions. The children may have been adversely affected by the respondent’s post-separation reaction. However, that was unintentional. The applicant’s own conduct harmed D.M. and S.M. too. The healing process will be slow. It will take extensive professional support over a long period. The path outlined by the assessor is the one that should be followed. Finding the right mental health professional has taken time. However, that person has now been identified. A.M. has taken stock of her own behaviour. Counselling is occurring. Changes have been made. More will occur in time.

G. Analysis and Decision

[83] Given the current status of this matter, it is important to re-emphasize that the disposition following trial would have been very different but for the pandemic.

[84] Layering a public health emergency onto all else the children would have to endure in the short-term meant the contemplated change in custody was no appropriate at that time.

[85] Leaving the children with A.M. and ordering therapy seemed like the only option even though that had been tried without success before. As the trial reasons explained:

That effort failed because A.M. did not support it despite protestations to the contrary. Cooperation was feigned. [17]

[86] The importance of the respondent’s outlook and conduct cannot be overstated. As the following passage demonstrates, leaving the children with the respondent was the preferred alternative, even following a finding of alienation. Consequently, at para. 417 of the trial reasons I wrote:

If A.M. had, with sincerity, admitted wrongdoing, expressed a willingness to immediately change, promised to promote the return of M.M. into the lives of the children and agreed to participate in individual and group counselling, this option would have been the one adopted, even if a worldwide health emergency had not intervened. However, she has done none of those things.

[87] At trial, evidence had been led concerning the respondent’s efforts to secure third party assistance for the children. However, the court concluded those had been insincere too:

What, precisely, does the respondent envision? According to her plan, a psychologist would “assess, diagnose and recommend a course of therapy, if any”. The words “if any” speak volumes. A.M. refuses to acknowledge the importance of the professional assistance that is so obviously imperative if M.M. and the children are ever to move forward. The reason is simple. The façade of cooperation will continue. Meanwhile she will try to continue the endless game of whack-a-mole that so many people have been unknowingly playing throughout this proceeding.

When coupled with the damage already done, the current emergency and the uncertainty it has created, leaves the court with no alternative but to proceed in a cautious but firm manner. To be clear, however, the path chosen is one which must move forward at a consistent pace. That will only occur if the respondent immediately and permanently ceases her infuriatingly destructive behaviour. If she continues to behave in an unacceptable manner, let there be no doubt, the court will respond. I cannot emphasize this point strongly enough. This trial has revealed A.M.’s true character, motivation, objectives and priorities. The results of the assessment are not flattering. [18] [Emphasis added]

[88] In those circumstances, the matter would have been complete but for COVID-19. A review would not have been necessary.

[89] The worldwide emergency provided the respondent with an opportunity to: (i) recognize that a loving relationship with their father is in the best interests of the children; (ii) acknowledge that it was inappropriate to use the children to punish M.M. for his relationship with C; (iii) realize that the effect of her conduct was to poison the attitude of D.M. and S.M. toward the applicant; and (iv) abandon that destructive path and choose the one that would benefit the children in the present and future.

[90] The orders made following trial were intended to propel the respondent in that direction. That was why A.M. was required to immediately seek therapy concerning her alienating behaviour in order to: (i) gain insight into her conduct; and (ii) enable A.M. to develop and implement strategies that would facilitate a positive relationship between M.M. and the children.

[91] Appearing to comply, the respondent retained the services of registered psychotherapist John Field for that purpose. [19] They first met on April 9, 2020. By the time Mr. Field testified, there had been twenty-one sessions. During his testimony, Mr. Field said A.M. acknowledged that her initial mental breakdown may have had a negative impact on the children. He maintained that the focus of the counselling sessions was on how A.M. could encourage D.M. and S.M. to have a positive relationship with the applicant.

[92] However, of concern was the fact Mr. Field: (i) did not ask for, let alone review, a copy of the trial decision until after he spoke with Dr. Haner on June 15, 2020; and (ii) concluded, based on A.M.’s narrative, that the respondent had not alienated the children. In the end, it was the court’s view that the sessions with Mr. Field were not helping the situation at all. Unwittingly, Mr. Field was simply supporting a narrative that had been rejected by the court.

[93] In those circumstances, the Haner report and Dr. Haner’s evidence took on even more importance. Although more modest than hoped, she reported some progress on A.M.’s part. She told the court she had identified a “nascent shift” in attitude. The respondent had begun to recognize that: (i) her narrative concerning the difficulties the applicant was having with the children was not likely to be accepted; (ii) her own actions had played a role, although unintentionally; and (iii) concerted effort on her part was required in order to help repair the bond between M.M. and the parties’ children.

[94] A.M. appeared to agree. The respondent acknowledged that while the trial decision was under reserve, she had continued some of the behaviour that was the subject of negative judicial commentary. She accepted responsibility for conduct that contributed to the current situation. A.M. said she had taken stock of what had transpired. She maintained she was working hard to modify her conduct.

[95] I found it difficult to take that evidence at face value. The relationship between the applicant and the children has not improved since the trial decision was released. In fact, it has reached a new low, despite limited contact and from what I can see, the consistent effort of the applicant to demonstrate his commitment to and unconditional love for D.M. and S.M.

[96] The evidentiary record is crystal clear in one respect. The children of this union are happy in everything they do and with everyone they encounter except for their father and anyone who is or is perceived to be in his camp. Then, according to the respondent, horrible things emerge including vomiting, diarrhea, even threats and perhaps one instance of self-harm. [20]

[97] This past summer A.M. completed a questionnaire. With respect to the children, A.M. spoke of the strong support system provided by her family. She said the children “enjoy school immensely” and have “a very close sibling bond”. Many other close and valued relationships were described too. A.M. said:

[D.M.] and [S.M.] are able to process emotions and work through struggles without significant stress. However, this is not the case with access with their Dad.

[98] The respondent said the children need:

A place where they can work through emotions and feel heard, validated, and worthy of sharing their voice.

[99] That aspect of this unsettling case had been addressed in the Haner report. Individual counselling to help the children with anxiety, coping, emotional regulation and distress tolerance was one of the assessor’s key recommendations. Brenda Sousa had been the service provider Dr. Haner identified.

[100] The parties expressed an interest in retaining Ms. Sousa. However, the effort fell apart for financial reasons, even though the applicant eventually agreed to fund the entire initial cost as the respondent had initially proposed. By that time, A.M. expressed concern that such an arrangement “could be viewed as a manipulation” by M.M.

[101] Almost immediately, Dr. Haner provided a list containing several other names. Time passed. A replacement was not identified.

[102] At the conclusion of the initial phase on September 25, 2020, A.M. argued that all the recommendations outlined in Dr. Haner’s July 31, report should be adopted. M.M. did not share that view but agreed the children required counselling.

[103] That recommendation is indisputable. The delay in its implementation before the review was already inexcusable. The parties were addressed firmly. An endorsement was immediately written and released. M.M. and A.M. were ordered to finalize their choice of counsellor from the list provided by Dr. Haner straightaway. Ms. Fredin was the name the parties selected.

[104] Dr. Haner and Ms. Fredin are associated with the London Family Court Clinic. That had been of importance to the respondent. Following Ms. Sousa’s decision to withdraw the offer of her services A.M. sent an August 14, 2020 e-mail to the applicant saying in part:

My thought is having someone at the London Family Court Clinic may be helpful for our situation. Should Justice Grace order Dr. Haner stay on as a case manager and should you choose either Dr. Harris or Dr. Ashburne to work with, this would allow the service providers to be in one place. Ease of communication between providers may also be of benefit.

[105] A.M.’s interest was not limited to those professionals. In an August 18, 2020 e-mail A.M. described Ms. Fredin’s credentials as “very impressive”.

[106] Given the parties’ position, there should have been no need for the post-September requests that the court hear further evidence and argument. Unfortunately, but almost predictably, this case has continued to be an eventful one.

[107] With the parties’ consent, Ms. Fredin consulted with Dr. Haner before the first appointment. Relevant information was received along with advice that Ms. Fredin focus on rapport building before moving on to any form of treatment. Ms. Fredin intended to do exactly that.

[108] Nonetheless, the meeting was an unmitigated disaster. Ms. Fredin noted that D.M. looked angry at first sight. An attempt to assure her that the visit was only to enable Ms. Fredin and D.M. to get to know each other failed. A fruitless hour passed. As noted earlier, D.M. and S.M. did not even make it past the waiting room.

[109] The second and last failed appointment with Ms. Fredin occurred on November 5, 2020. On this occasion, D.M. did not even make it into the building containing Ms. Fredin’s office, despite the fact Dr. Haner was the professional involved in trying to facilitate the start of the recommended and court ordered treatment.

[110] At least initially, S.M. was much more receptive to Dr. Haner’s efforts. He accompanied her into the waiting area. Things seemed positive. However, all progress was lost when they returned to the parking lot. D.M. screamed. She threatened self-harm. She claimed that she had thrown up in the bushes. She alleged S.M. had too. Dr. Haner thought that the actions “appeared performative.” There was no evidence the children had been physically ill. Dr. Haner made unsuccessful efforts to redirect and calm the children. The allotted time passed without Ms. Fredin seeing either child.

[111] How does A.M. fit into all of this? What was her reaction to the behaviour of her children during the first meeting with Ms. Fredin? Was she surprised or embarrassed by or disappointed with D.M. or S.M.? No.

[112] In a November 16, 2020 e-mail A.M. claimed that the word “Court” in the name “London Family Court Clinic” was an unexpected “trigger” for the children.

[113] The respondent also blamed Ms. Fredin. In her most recent affidavit, A.M. said the children were not comfortable because the counsellor resembled Ms. DeVeto visually and audibly. A.M. maintained that in response she “quickly stepped in” and “was firm in her expectations” but added that she “validated their concerns”, whatever that may mean. A.M. alleged that Ms. Fredin told the children they were “behaving badly”. That statement, she said, caused D.M. to become “escalated”.

[114] A.M.’s description does not accord with Ms. Fredin’s recollection. The psychotherapist said she tried to “facilitate the children’s comfort while holding the boundary that they [were] expected to attend the appointment.” Ms. Fredin said A.M. “did not make efforts to set limits” on the children’s behaviour. I accept Ms. Fredin’s version of events.

[115] What happened next? According to the respondent, once outside D.M. vomited in the bushes, had chest pain, tried to call 911 and expressed a wish to self-harm. The visit to L.H.S.C. to address “concerns relating to anxiety and chest pain” followed. [21] To be clear, an attendance at an appointment designed to help the children with their mental health ended up with a trip to a hospital where the respondent sought assistance with the children’s mental health. That was a mind-boggling decision.

[116] That attendance resulted in social worker Dusty Foster’s introduction into the narrative and then the short chapter involving psychiatrist, Dr. Fisman.

[117] Dr. Fisman’s report summarizes information provided to her by D.M. and/or A.M. Near the beginning of her report, the psychiatrist reported that “mother has custody”. In fact, custody is shared.

[118] According to the referral note Dr. Fisman received D.M.’s panic attack occurred:

…after her therapy session which involved some significant stress as well as an invalidating experience…

[119] Presumably the “invalidating experience” was the “behaving badly” comment A.M. has attributed to Ms. Fredin.

[120] Dr. Fisman said that D.M. had “described incidences [ sic ] where her father would get drunk and would push her mother, her brother and herself.” Many people have interviewed D.M. over the years, including Dr. Haner. I do not recollect any record containing such an allegation before. Nor has A.M. said any such thing.

[121] D.M. was also alleged to have told the psychiatrist there was an incident where A.M. “may have been raped by her father.” The source of D.M.’s information that led to that assertion was not disclosed. However, only one comes to mind.

[122] Dr. Fisman attributed the following comments to A.M.:

[A.M.] indicated that [M.M.] had never really had a relationship with the children…At this point [A.M.] has custody of the children…The father has repeatedly taken her to court to change custody…

[123] That assertion was made during the trial and rejected. The extent of the pre-separation relationship between the applicant and the children was understated, the issue of custody misstated for a second time and the description of this proceeding misrepresented.

[124] In cross-examination, A.M. alleged she told Dr. Fisman about the trial decision, including the finding she was responsible for the chasm that exists between M.M. and the children. The suggestion the psychiatrist would have heard but failed to record a disclosure of such significance is simply not believable.

[125] The report prepared by Dr. Fisman paints a very dark and inaccurate picture of the applicant. Given its contents, it is unsurprising that she was of the view the problems in the relationship between M.M. and his children was a product of D.M. and S.M. having “been exposed to an abusive marital situation over several years”. The disclosure resulted in L.H.S.C. contacting the C.A.S. In an October 23, 2020 e-mail, the respondent told the applicant that the hospital visit had resulted in the opening of a C.A.S. file in his name and that a child protection worker would be contacting him “to investigate.”

[126] As noted, the second bi-weekly visit with Ms. Fredin followed on November 5, 2020. According to Dr. Haner, in her presence D.M. mentioned having recorded a recent virtual access visit. Dr. Haner explained what happened next:

…[A.M.] told [D.M.] that she had already been told she was not supposed to have made a recording. However, she did not take the phone away…or indicate that she would erase the recording.

[A.M.] began to argue the details of the most recent Court Order that she bring the children to one of the practitioners I suggested and pled with me to help her find a way to be allowed to bring the children to a practitioner of her own choosing. She disparaged Ms. Fredin within hearing range of the children. [A.M.] became more intensely upset, crying and raising her voice. In a loud voice, she said, “Well then, one of them is going to have to cut themselves before someone will help us! They’re going to self-harm!” … Aware that the children could hear her, I advised Ms. Martin that she should go home with her children and try to calm the family down as the appointment time was nearly over…

[127] Dr. Haner entered the neighbouring building to return to her office. A.M. and the children went in the direction of the respondent’s car. Before the assessor had even reached the lobby of her office, Dr. Haner received a call from A.M. alleging that D.M. had “self-harmed”. Despite that advice, D.M. was simply taken home.

[128] The November 5 debacle caused Dr. Haner to tell A.M. and the court that the respondent “is not currently capable [of] getting the children to attend with an appropriate mental health practitioner.” Ms. Fredin’s experiences caused her to doubt the respondent’s “ability to facilitate the children’s engagement in therapy.”

[129] No effort was made by A.M. to arrange a third appointment with Ms. Fredin. Tellingly, A.M.’s affidavit sworn December 11, 2020 makes no mention of the events of November 5, 2020 or the reports of Dr. Haner and Ms. Fredin concerning them.

[130] In an e-mail sent the following day, A.M. assured M.M. that “my intent was not to have the conversation between Dr. Haner and I overheard by the children.” She added:

I reached out to multiple people and professionals after the initial session with [Ms. Fredin] didn’t go well. I was able to gather names and put the children on wait lists.

[131] Ten names appeared.

[132] That has been the respondent’s focus notwithstanding the communication on November 2, 2020 advising the parties “the court continues to require that the children faithfully attend bi-weekly counselling with Heather Fredin”. That message followed a September 25, 2020 endorsement that ordered the parties to choose from a list of five names.

[133] Notwithstanding that order, A.M. unilaterally decided to change course. To be very clear, that was not the respondent’s decision to make.

[134] A.M.’s most recent affidavit sets forth a dizzying array of other names and professed expertise based on her own research. Not only are the respondent’s efforts at cross purposes with the work already done by Dr. Haner, they were undertaken in the face of an order of this court.

[135] It is possible that A.M. has lost sight of her role as a parent. At times, she appears to believe that the children’s voices should be paramount. That would explain some of the answers given by her when cross-examined on December 16, 2020. A.M. said she still supported Dr. Haner’s recommendations. Designation of a case manager would, in A.M.’s view, allow the children to receive “the help they need in a way they are willing to do it.” That level of indulgence is completely inappropriate.

[136] Neither child has the maturity or perspective needed to identify the kind of counselling they need, let alone who should provide it. Nor, of course, does the parent who bears primary responsibility for the present predicament. That is precisely why the court appointed Dr. Haner to prepare the report she did. There is no one in this case who disputes that the children have a long overdue need of assistance from a mental health professional.

[137] Qualified service providers have been identified. Because of this unending dispute, the court has tried to fill the void. However, the efforts of every professional chosen have been stymied by the respondent.

[138] From the outset, a deficiency is identified by A.M. They do not have the preferred look or sound. Their methods are not the “right” ones. They do not say the appropriate things. D.M. and S.M. do not trust them because they do not “validate” the children sufficiently. The excuses are incessant. There is a simple reason. A.M. will not promote or support any service provider unless she chooses them and even then, only if they strictly comply with whatever terms and conditions she establishes, monitors, controls and enforces.

[139] That is why A.M. twists and turns. The search is an endless one. She constantly seeks information and advice from a myriad of people. Names and programs spill out. They land but do not stick. They bounce over and over and in every possible direction. Nothing takes hold. No one is ever given the mandate, time or support required to do their job because A.M. does not want the children to have a positive relationship with their father. Simply put, A.M. has been and continues to be a gigantic obstacle.

[140] Meanwhile, time passes. Lives stumble on. A cataclysmic worldwide event occurs. Instead of using the second chance to right the ship, under A.M.’s guidance, the chasm between M.M. on the one hand and the children has widened and deepened. The possibility of repairing the relationship becomes even more challenging, quite possibly more remote.

[141] Lest there be any doubt concerning A.M.’s mindset, what does she say when left to her own devices? In this most recent round, counsel for M.M. referred the court to something only recently located: the respondent’s Twitter account. On November 9, 2020 the respondent posted the following message that she had authored:

No one cares about what he did or is doing to you and the children. He deserves contact…at all costs. Including your sanity.

[142] Sadly, given the other evidence in this case, that message comes as no surprise.

[143] The respondent’s true attitude toward the applicant and the court, is revealed by A.M.’s post of November 30, 2020. She wrote:

Red Tape Everywhere. Shouldn’t the children have a say in who they want therapy with? Why does the person who caused the need for said therapy get to choose the therapist?

[144] The previous day, A.M. retweeted this message:

The family courts contribute to femicide; they pathologize & oppress mothers & reconstruct the narrative of the case to one of ‘implacable hostility’ or ‘parent conflict’. This paves the way for ‘co-parenting’ with a perpetrator of egregious abuse.

[145] Once again, A.M.’s points a stony finger at M.M. and the court. What responsibility does the respondent accept? None. Her finger does not turn inward.

[146] Several months ago, A.M. provided a glowing self-review of her parenting style when completing the questionnaire Ms. Sousa had provided. In describing the family history, the respondent continued to allege “verbal/emotional abuse toward me by” M.M. She mentioned the applicant’s “affair”. She alleged M.M.’s extended family had promised the children dire consequences if the terms of court orders were not met. Tellingly, A.M. did not say a single positive thing about the applicant as a person or as a parent and did not acknowledge contributing to the problem in any way.

[147] The endorsement released September 25, 2020 required the respondent to take immediate steps to retain someone to provide the therapy Mr. Field had proven incapable of delivering: therapy concerning A.M.’s alienating behaviour so that she could obtain insight into her conduct and enable her to develop and implement strategies that would result in the promotion of a meaningful, positive and loving relationship between the applicant and the parties’ children.

[148] When asked why she had not filed proof of compliance, A.M. said the endorsement did not require it. When asked who she had retained, A.M. said that she continued to see social workers Deborah May of Family Services Thames Valley and Wendy Goldsmith of the London Abused Women’s Centre. No documentary support of any kind was provided.

[149] Ms. May and Ms. Goldsmith were consulted by the respondent before the trial decision was released. Dr. Haner interviewed them when preparing her report. They had been consulted by the respondent long before the trial decision was released. Among other things, Dr. Haner reported that Ms. May said (i) that it may be helpful for A.M. to see a male therapist/counsellor because she thought such a person would have a stronger voice to support her; (ii) A.M. had been left with all the responsibility for the children and put in a position of being seen as the “bad parent” when supporting them: and (iii) M.M. needed to apologize to D.M. for leaving and quickly engaging in a new relationship.

[150] According to Dr. Haner, Ms. Goldsmith had expressing a willingness to support A.M.’s mental health but acknowledged that “therapy for parent-child contact problems was out of her scope.”

[151] Ms. May and Ms. Goldsmith are not able to provide the more critical perspective A.M. so desperately needs. That conclusion will come as no surprise to the respondent. Until the most recent attendance, she had not put forward either name as the person providing the services the trial decision requires.

[152] Sadly, based on the totality of the evidence A.M.’s attitude and behaviour has not changed since the release of the trial decision. Her self-created game continues. Cooperation is surface deep only. Once again, the carefully constructed exterior is a deception. Sadly, A.M.’s self-awareness has not even reached the “nascent” stage Dr. Haner described.

[153] However, that is not the end of the analysis. The fact the respondent continues to misbehave influences but does not dictate the final disposition. The best interests of D.M. and S.M. are always paramount. The final order cannot be one crafted to punish their mother.

[154] I continue to have no doubt that M.M. is devoted, loving and committed to bettering the lives of his children. He has persevered in the face of circumstances that are unimaginable to most.

[155] Unquestionably, he has taken the Haner report to heart. Clinical psychologist Dr. Louise Sas was one of the professionals she recommended when Ms. Sousa’s services could not be secured.

[156] M.M. and C. met with her on November 24, 2020. The applicant had his first individual counselling session with Dr. Sas on December 9, 2020. Another session was scheduled for the day following completion of the hearing of this review.

[157] In a December 2, 2020 letter, Dr. Sas expressed a willingness to provide therapeutic reintegration therapy for M.M. and the children. She also was prepared to meet with M.M. and C. “to assist them in preparing for the children’s transfer into their home.”

[158] M.M. has expressed an intention to utilize supports offered through Vanier Children’s Mental Wellness Services. He has also sought guidance from the C.A.S. It is willing to assist with the physical transfer of care of the children if ordered.

[159] I commend M.M. for his behaviour and his plan. However, I am of the view that the relief the applicant seeks is currently too drastic. I say that for three principal reasons.

[160] First, as noted, M.M. and C. have a newborn child. As mentioned, the applicant has not discussed the pregnancy, let alone the birth, with D.M. or S.M. 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 everyone involved including, most definitely, the parties’ children.

[161] Second, the pandemic is still very much a part of the lives of all Ontarians. A provincewide shutdown is currently in effect until January 23, 2021. Remote learning is the order of the day for elementary school students at least through January 25, 2021. Vaccine distribution is under way. On the other hand, the average daily number of new COVID cases in London and surrounding area is at an all-time high. In short, some reason for optimism exists. However, the effects of the pandemic are being and will be felt for an indefinite period and almost certainly well into 2021. In short, the world situation is not much different than it was when the trial reasons were released. The same concerns that existed then are present now.

[162] Third, the court now has the benefit of the Haner report. As Dr. Haner explained, there is no long-term future for D.M. and S.M. if they cannot navigate the short-term. She explained why she was of the view the immediate mental health of the parties’ children had to be prioritized. The assessor’s analysis was compelling and her recommendation well supported.

H. Conclusion/Orders with respect to Custody and Access

[163] A.M. continues to act in a way that is not in the best interests of D.M. and S.M. However, due to the continuation of the pandemic, the children’s fragile mental health and the addition of the applicant and C’s newborn baby to the mix, changes of custody and the residential arrangement are simply too drastic.

[164] Given the foregoing, I make a final order containing the following terms:

a) The parties shall continue to share custody of D.M. and S.M. Under no circumstances shall A.M. represent otherwise to any person;

b) The children will continue to reside primarily with the respondent;

c) A.M. shall continue to provide not less than weekly electronic updates to the applicant concerning each of D.M. and S.M. including their activities, schooling and health. Schedules of school or extra-curricular events, whether school organized or not, shall also be shared with M.M. forthwith upon receipt by A.M.;

d) Paragraph 1(a) of the court’s September 25, 2020 endorsement continues to be in effect. To be clear, the parties are ordered to immediately finalize their choice of counsellor from the names remaining on Dr. Haner’s list (Suderman, Reif and DeOliviera). [22] If none are available, Dr. Haner is asked to provide further recommendation(s), one at a time, until a counsellor/therapist is prepared to confirm, in writing to Dr. Haner, M.M.’s counsel and A.M., their willingness to treat D.M. and S.M. for anxiety and assist them in establishing and building coping and emotion regulation skills, distress tolerance and ultimately, a positive relationship with both parents. The parties shall fully cooperate with the counsellor/therapist chosen in accordance with this subparagraph including, without limitation, ensuring the children attend and participate fully in every session; [23]

e) A.M. shall immediately comply with para. 1(c) of the September 25, 2020 endorsement. The counsellor/therapist chosen shall be instructed by A.M. to: (i) provide written confirmation of their involvement to Dr. Haner and M.M.’s counsel; (ii) acknowledge A.M. has provided them with a complete copy of the trial and these reasons; (iii) confirm that A.M. has asked and that they will provide therapy to A.M. concerning her alienating behaviour in order that she might gain insight into her conduct and develop and implement tools that will enable her to develop and implement strategies that will result in A.M. consistently promoting a meaningful, positive and loving relationship between M.M. on the one hand and D.M. and S.M. on the other. A.M. shall fully cooperate with the counsellor/therapist chosen in accordance with this subparagraph including, without limitation, attending and participating fully in every session;

f) M.M. shall continue to participate in counselling with Dr. Sas to assist him in communicating with D.M. and S.M. and in re-establishing a relationship with them. M.M. will ask Dr. Sas to send confirmation of her involvement to Dr. Haner and to A.M. M.M. shall fully cooperate with Dr. Sas including, without limitation, attending and participating fully in every session

g) The written confirmations referred to in subparagraphs d), e) and f) shall be provided by no later than the close of business on February 5, 2021;

h) The counselling/therapy referred to in subparagraphs d), e) and f) shall continue until the counsellor/therapist advises same is no longer necessary;

i) If, for whatever reason, a counsellor mentioned in d), e) or f) does not continue, their recommendation shall be immediately sought and the counsellor recommended thereby retained. In that event, the requirements of d), e) and f) hereof, as the case may be, shall continue to apply;

j) If she agrees to do so, Dr. Haner shall act as case manager and shall oversee the counselling/therapy referred to in subparagraphs d), e) and f), with a view to achieving the ultimate objective of establishing a positive relationship between the children and both of their parents;

k) The fees and expenses of the counsellor/therapist referred to in subparagraph d) and of Dr. Haner and any retainer required thereby shall be shared equally by the parties and paid forthwith upon request by the service provider;

l) M.M.’s virtual access to D.M. and S.M. shall continue in accordance with para. 424 d) and e) of the trial reasons;

m) M.M.’s in-person access to D.M. and S.M. in accordance with para. 424 f) of the trial reasons shall commence on June 4, 2021 and para. 424 g) of the trial reasons shall then take effect;

n) Neither party shall remove the children from the Province of Ontario, without the prior written consent of the other, which consent shall not be unreasonably withheld.

I. Quantum of Child Support

[165] Based on the evidence, the applicant’s 2019 income was $49,427.33. Consequently, effective July 1, 2020, monthly child support of $745 was payable. M.M. shall receive credit for the monthly child support payments made to A.M. and not to the Family Responsibility Office in the monthly amount of $939 per month from May 2020 onward.

[166] A.M.’s 2019 income tax return is now in hand. Her line 150 income was $34,628.52. As of July 1, 2020, s. 7 expenses are to be divided between M.M. and A.M. on a 58.8/41.2% basis.

J. Form of Draft Order

[167] M.M.’s counsel is asked to prepare a draft order. At first instance, the draft is to be provided to A.M. for her review. She shall have five calendar days to provide comments to M.M.’s counsel concerning its form. Thereafter, the draft, with any revisions M.M.’s counsel is willing to make, is to be provided to me by counsel for M.M. along with the comments, if any, provided by A.M. concerning the form of the draft she received.

K. Costs

[168] Cost submissions not exceeding five (5) typed pages shall be served and filed by no later than 4:30 p.m. on (i) February 2, 2021 in the case of the applicant; and (ii) February 19, 2021 in the case of the respondent.

[169] As the review has been completed, I am no longer seized of this matter. I offer this final comment which should ring in the respondent’s ears day after day. Starting this very instant and for the sake of the children, do much, much better.

Released: January 8, 2021 Justice A.D. Grace

Footnotes

[1] That excerpt is taken from para. 413 of my reasons.

[2] D.M. was born in October 2008 and S.M. in March 2011. They are now 12 and 9 years old respectively.

[3] That occurred on December 18, 2019.

[4] A handwritten endorsement was released that day.

[5] This excerpt is taken from pp. 48-49 of the report.

[6] In a July 28, 2020 e-mail, A.M. proposed that M.M. cover the cost of Ms. Sousa’s services in full until amounts she claimed to be due on account of child support and s. 7 expenses were paid in full. On July 31, 2020 M.M. responded by saying his “finances are tight as well right now”. He proposed a 50-50 split until the issue was determined by the court. A.M. declined that suggestion in her August 3, 2020 weekly report. In an August 7, 2020 e-mail, A.M. proposed a 66/34% split in accordance with the trial decision. That day, M.M. said that he had sent Ms. Sousa $500 so that the sessions could begin. That evening, Ms. Sousa asked the respondent whether the prepayment was acceptable. A.M. expressed her view that unilateral payment “could be viewed as a manipulation toward the other” the following day. The debate continued with A.M. asking for confirmation that her proposed 66/34% split was agreeable so that she could “book the initial appointment with Brenda [Sousa]”. On August 12, 2020, Ms. Sousa sent an e-mail to the parties advising she was no longer willing to work with the family. On August 12 and 13, 2020, A.M. suggested naturopath/chiropractor Dr. Dronyk see the children to treat the children for the “symptoms in Dr. Haner’s report”. She suggested D.M. and S.M. had been seeing him “since birth”.

[7] In an August 13, 2020 e-mail to Dr. Haner, A.M. said she was uncomfortable because of the “financial abuse” she alleged M.M. had perpetrated.

[8] This excerpt is drawn from p. 54 of Dr. Haner’s report.

[9] This excerpt is drawn from p. 54 of Dr. Haner’s report.

[10] That excerpt is drawn from p. 54 of Dr. Haner’s report.

[11] See p. 55 of Dr. Haner’s report.

[12] This excerpt is drawn from p. 54 of Dr. Haner’s report.

[13] This excerpt is drawn from p. 52 of Dr. Haner’s report.

[14] These excerpts are drawn from p. 53 of Dr. Haner’s report.

[15] In fact, I was of the view the therapist was unwittingly reinforcing the narrative the court had rejected.

[16] In later correspondence, Ms. Fredin said the first visit occurred on October 22, 2020. Based on the records of the London Health Sciences Centre, October 20, 2020 seems to be the correct date.

[17] At para. 416.

[18] At paras. 420 and 421.

[19] Mr. Field authored a June 15, 2020 letter that was filed with the court.

[20] This excerpt from the August 3, 2020 weekly report is indicative of the communications A.M. sent:

[D.M.] continues to sleep a lot and [S.M.] cries often. There is self harm talk and I’ve continued to keep a close eye on them.

Both kids enjoyed playing together. They really get along well still and are great at give and take when it comes to interests and what they want to play. They went swimming and rode their bikes. We went to the pond and on hikes in the woods. We did crafts and cooked meals together.

[21] That excerpt is drawn from the report prepared by Dr. Fisman.

[22] Dr. Sas is providing services to M.M. I do not think it wise for her to be asked to fill this role. Ms. Fredin does not deserve to be excluded from the list but given the unfortunate circumstances she endured, also should no longer be asked to provide the contemplated services.

[23] In my view, the court has the authority to make an order of this kind: A.M. v. C.H., 2019 ONCA 764 at para. 51.