COURT OF APPEAL FOR ONTARIO DATE: 20210716 DOCKET: C67846

Feldman, van Rensburg and Sossin JJ.A.

BETWEEN

Ciprian Teodor Bors Applicant (Respondent)

and

Ana Cristina Bors (Beleuta) Respondent (Appellant)

Counsel: Tiffani A. Frederick and Gloria E. Ichim, for the appellant Brian Ludmer, for the respondent James R.G. Cook and Jessica Schissler, for the appellant’s trial counsel

Heard: May 19, 2021 by video conference

On appeal from the order of Justice Francine Van Melle of the Superior Court of Justice, dated December 4, 2019, with reasons reported at 2019 ONSC 7029.

REASONS FOR DECISION

A. Overview

[1] The parties are former spouses and the parents of two children, a daughter, M, who is now 15 years old, and a son, C, who is 9.

[2] This is an appeal of an order granting sole custody [1] of the children to the respondent father, and imposing other terms, after the trial judge concluded that the appellant mother had engaged in parental alienation. The order was made after an eight-day trial of a motion to change a final order.

[3] The motion to change was prompted by the alleged failure of the mother to comply with the provisions of the final order respecting the father’s access to the children. By the time the trial took place there had been more than 200 failed access transitions, the father had not had access to M for two years, and, with limited exceptions, he had not had C in his care since the end of the previous school year, in June 2019. Moreover, the parties had been involved in the litigation of the motion to change for several years, and there had been numerous court attendances and orders, most of which were to address ongoing and worsening problems with the father’s access.

[4] The trial judge concluded that the evidence was overwhelming that the children were alienated from their father and that their mother was responsible. She held that the best interests of the children required the father to have custody of the children, with an initial period where the mother would have no contact with C and reduced contact with M. The order required the parties and the children to engage in reconciliation therapy with family therapist Lourdes Geraldo, and provided for reports to the court. The trial judge remained seized of the matter. [2]

[5] The mother asserts that the trial judge erred in finding that she had alienated the children from their father. She also contends that the order imposed by the trial judge was not in the children’s best interests, and that some other order short of changing custody and restricting her access to the children would have sufficed. Finally, she argues that she was deprived of a fair trial because she was ineffectively represented by her trial counsel and the trial judge demonstrated bias.

[6] The father denies that there were any reversible errors, and he seeks to rely on fresh evidence consisting of his own lengthy affidavit, which includes, as an exhibit, a summary report dated January 12, 2021 from Ms. Geraldo.

[7] For the reasons that follow, we dismiss the motion to introduce fresh evidence, except for the report of Ms. Geraldo, which is admitted, and we dismiss the appeal. As we explain, there was no reversible error in the trial judge’s conclusion that the mother engaged in parental alienation, or her conclusion that the best interests of the children required a change in custody and the other measures that were included in the order. Nor was the mother deprived of a fair trial.

B. Brief Procedural History

[8] The parties separated in 2012 after ten years of marriage. At the time, M was six years old and C was under a year. The father commenced proceedings in the Superior Court shortly after the parties’ separation.

[9] A custody and access investigation pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43, was undertaken by the Office of the Children’s Lawyer (the “OCL”). In its 2013 report the OCL recommended custody of the children to the mother and access by the father every other weekend and one night a week.

[10] Shortly before a trial on custody and access was to begin, the parties reached an agreement. Its terms were incorporated into the consent final order of Snowie J. dated May 11, 2015. In broad terms, that order provided for the mother’s custody of the children, with the father having access on alternate weekends.

[11] The father brought a number of motions to address problems with his access to the children, which resulted in a number of interim orders as well as the final order of André J. of February 23, 2017 increasing access time and providing for access transitions at the children’s school. [3]

[12] On March 23, 2017 the father commenced a motion to change proceeding, and further court attendances and temporary orders followed.

[13] An updated OCL report was issued on May 4, 2018 (the “2018 OCL report”). While the author of the report, Wendy MacKenzie, recommended that the mother continue to have custody of the children, with the father having access (including access to C on alternating weeks), she was concerned about the father losing his relationship with the children. She recommended that the mother consider counselling support to help her to encourage a positive and healthy relationship between the children and their father despite her feelings about him and, she cautioned that “if this cannot be achieved, consideration should be given to a change in custody”.

[14] In June 2018, after the children were refusing to transition to their father’s care, he brought an interim motion for access. By that point the father had not had access to M since September 2017 and C was attending access visits reluctantly. Coroza J., as he then was, adjourned the motion to a long motion, he made an order for questioning of Ms. MacKenzie, and he ordered that the children attend separation counselling with a mutually agreed upon practitioner. Coroza J. heard the long motion on August 13, 2018. During the months that his decision was under reserve, M was still not seeing her father and C’s visits were sporadic. On January 31, 2019, Coroza J. made an order increasing the father’s parenting time, and ordered the motion to change to proceed to trial.

[15] At a further attendance on May 31, 2019, seeking compliance with the Coroza J. orders, the trial of the motion to change was expedited. Mossip J. cautioned the mother that continuing her behaviour could lead to a reversal in custody.

[16] The trial took place on eight days in October and November 2019. By that time, M was still refusing to transition to her father’s care and C, who, with limited exceptions, had not been in his father’s care since the end of the previous school year, was missing a great deal of school, or leaving school early.

[17] On November 18, 2019, the trial judge heard closing submissions. The mother, without explanation, was not present in court that day, and the trial judge was advised that C had left school early. The trial judge provided an oral decision, ruling that the mother had alienated the children from their father. She ordered that the best interests of the children required the father to have custody, and for the mother’s access to be temporarily restricted. She ordered C to move immediately to the father’s full-time care and M to live with the father from after school until 8:00 pm, and from 9:00 a.m. to 8:00 p.m. on days M was not in school. On December 4, 2019 the trial judge released written reasons for judgment that set out the terms of her final order.

C. Standard of Review

[18] The determination of custody and access (now “parenting orders”) involves issues of mixed fact and law. As such, intervention on appeal is warranted only where there is a material error, a serious misapprehension of the evidence, or an error of law. As the Supreme Court has stated, “[c]ustody and access decisions are inherently exercises in discretion. Case by case consideration of the unique circumstances of each child is the hallmark of the process”: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13.

[19] As this court has reiterated many times, an appeal court must not retry parenting cases, but instead “approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues”: C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4.

[20] In A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, which was the appeal of an order reversing custody after a finding of parental alienation, Pardu J.A. articulated the standard of review. She stated, at para. 74:

Each case must be determined on its own specific facts. The trial judge hears from all the witnesses and as such, is in the best position to assess the child’s best interests. If there is no error in law, no palpable and overriding error of fact, and no misapprehension of evidence, appeal courts should not interfere.

D. Issues on Appeal

[21] The mother raises a number of issues on appeal. In essence, she makes three arguments:

1. The trial judge made a palpable and overriding error when she concluded that the children’s unwillingness to have access with their father resulted from parental alienation, and not some other reason, and when she ignored evidence of domestic abuse;
2. The trial judge erred in making the order she did, changing custody and restricting the children’s access to their mother, (i) when the father had only asked for joint custody; and (ii) when a less restrictive order could have been made to enforce the father’s right of access; and
3. She was deprived of a fair trial by reason of (i) the ineffective assistance of her trial counsel; and (ii) bias on the part of the trial judge.

[22] We consider each issue in turn.

Issue One: Did the Trial Judge Err in Her Conclusions about Parental Alienation?

[23] The mother contends that the trial judge’s conclusion that she had engaged in parental alienation was speculative, and based only on the children’s behaviour in refusing to transition into their father’s care. As such, she argues that the trial judge made a palpable and overriding error in concluding that there was parental alienation.

[24] The mother asserts (as she did at first instance) that it was sufficient for her to bring the children to the access transfer point (typically the police station), and that she was not responsible if the children refused to transition to their father’s care. She also submits that her behaviour should be understood in the context of the domestic abuse she had suffered, which she says the trial judge ignored.

Discussion

[25] It was not contested at trial that the children had become alienated from their father. Indeed, both parties took the position that reunification or reconciliation therapy was required to attempt to restore the relationship. The issue before the court was why the alienation had occurred, which would then inform the decision about the appropriate remedy.

[26] The trial judge provided clear and detailed reasons for her conclusion that the mother had engaged in parental alienation. The finding of parental alienation was not based on speculation; rather it was firmly based on the evidence before the court. Indeed, the trial judge reasonably concluded from the evidence that the children were suffering emotional harm caused by their mother’s behaviour.

[27] The trial judge heard evidence from the parties and other witnesses. Several professionals who had been involved with the family testified, including Ms. MacKenzie (the author of the 2018 OCL report) and caseworkers from the Peel Children’s Aid Society (the “CAS”). It is unnecessary to detail here the evidence of the witnesses; it is sufficient to observe that the trial judge assessed the evidence and made findings of fact. She identified a long list of the mother’s actions that were consistent with alienation. The trial judge also referred to the continuing failure by the mother to abide by court orders.

[28] It was not sufficient then, nor is it now, for the mother to assert that she was only required to bring the children to the access transfer, and that she was not responsible for their refusal to transition to their father’s care. Once a court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. Ontario courts have consistently held that a parent has some positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order: Godard v. Godard, 2015 ONCA 568 at para. 28.

[29] The mother had been advised repeatedly to encourage and not to undermine the children’s relationship with their father, and that alienation could be highly damaging to the children. Yet the mother persisted in her conduct, and the relationship between the children and their father deteriorated.

[30] Nor do we accept the contention that the mother’s conduct – in failing to support and assist in the father’s access to the children – can be explained by the fact that she was a victim of domestic abuse. In support of this allegation her counsel on appeal relied on the fact that in 2014 the father had pleaded guilty to mischief and received a term of probation after he placed a GPS tracker in the mother’s vehicle. [4]

[31] The GPS incident was not referred to in the trial judge’s reasons, for good reason. In 2015 the mother had consented to a final order that provided for the father’s access to the children on alternate weekends. The focus of the trial was on the parenting of the children since that time, and their alienation from their father. There was nothing to suggest that the mother’s resistance to assisting in the children’s transition to their father’s care resulted from any consequences of the GPS incident or abuse that she had suffered in her relationship with the father. Rather, she suggested that the father’s mistreatment of the children justified their reluctance to transition into his care. She made numerous false allegations to the CAS and the OCL that the father was abusing the children. She had persisted in making complaints, including at trial, even after they were investigated and not substantiated. The OCL and the CAS, who had extensive dealings with the family over a number of years, identified no concerns with the father’s fitness as a parent, and the testimony of their representatives emphasized their concern with the mother’s alienating behaviours.

[32] The mother’s attitude toward the father was reflected in the inflammatory and untrue comments she made to others, including to witnesses at the trial. Although the mother denied speaking ill of the father before the children, the trial judge noted in her oral reasons that “[the mother’s] whole demeanour and attitude telegraphs her intense dislike for him. There is no way that her attitude is not transmitted to the children”. The mother’s alienating conduct, as the trial judge observed, resulted from her lack of insight into the effect of her behaviour on the children, as well as her “total disregard” for previous court orders.

[33] There is no reason to interfere with the trial judge’s conclusions about parental alienation. They are sound, and fully supported by the evidence.

Issue Two: Did the Trial Judge Err in the Terms of the Order that She Imposed?

[34] The mother makes two arguments on this issue.

[35] First, she submits that the trial judge erred in law when she ordered a custody reversal in light of the parties’ positions at trial, and in the absence of an updated OCL report.

[36] Second, the mother asserts that the trial judge erred in making an order restricting her access to the children when other alternatives were available, such as an order for access with police enforcement, an order finding her in contempt of earlier orders or, if custody were changed, an order for supervised access. The mother further argues that a different order should have been made because the trial judge’s order requires her to gain a level of insight that is beyond her reach, and prevents her from demonstrating positive behavioural changes in order to regain access to the children. [5]

Discussion

[37] The mother is correct that the father’s counsel indicated at the outset of trial that the preference was for an order for equal parenting with the children residing with each parent on alternating weeks. He expressed concern about the mother’s compliance with such an order, and he advised that, depending on the evidence, the father might be seeking custody with a period restricting the mother’s access to the children. Indeed, by the end of the trial it was apparent that an order for equal parenting would not be sufficient to address the ongoing parental alienation, particularly with the negative views the mother continued to express about the father in her evidence at trial, and her history of non‑compliance with court orders. The fact that the father asked for an order for equal parenting as one alternative did not prevent the trial judge from making the order she did, in the circumstances of this case. It was apparent even before the trial commenced that an order reversing custody might well be required. As in A.M., “the mother’s conduct and its effect on the [children] was front and centre in the father’s pleadings”: at para. 29.

[38] There was no requirement for an updated OCL report. The OCL had provided a report in 2013, and the 2018 OCL report was prepared for the motion to change proceeding. The author of that report, Ms. MacKenzie, had attended for questioning in 2018, and she was a witness at trial where she was examined by the parties. She spoke to what she had observed and determined at the time of her report – including the parenting abilities of both parties and the difficulties experienced with access transitions – and she confirmed her opinion that a custody reversal should be considered if the mother continued to not encourage the children’s relationship with their father. There is no indication that anyone requested an updated OCL report before the expedited trial took place or that further delay was justified in the circumstances.

[39] As for the appropriateness and necessity of the order made by the trial judge, this is a unique case. Attempts to rectify the problems with access through repeated court attendances and interim orders had not succeeded. Indeed, the situation had worsened to the point that C, who was only transitioning to his father’s care after school, was frequently missing school or leaving early in order to avoid the transfer to his father’s care. Other available measures had proved inadequate or ineffective.

[40] Although the mother had asked for an order for reunification therapy at trial, she had not complied with earlier directions respecting therapy and counselling. Nor had she followed the recommendation of the OCL to pursue individual therapy so that, despite her own feelings about the children’s father, she could still encourage a relationship between him and the children.

[41] In the circumstances, including the history of the mother’s failure to comply with court orders, it was reasonable for the trial judge to conclude that the family reconciliation therapy that the parties agreed was required was best supported by a reversal of custody and restriction on the mother’s access to the children for a period of time. As this court recently observed, “[w]here a reversal of decision-making and primary residence has been ordered, courts may order that the alienating parent have no contact with the child for a minimum period”: M.P.M. v. A.L.M., 2021 ONCA 465, at para. 37.

[42] Finally, we do not agree with the mother that it is impossible for her to comply with the trial judge’s order. The mother’s alienating behaviour is informed by her beliefs and attitudes. The order requires the mother to engage in individual therapy to assist her to recognize the need to support the children’s relationship with their father – which is in their best interests. The mother is not expected to change her attitude overnight; she is however expected to comply with the order by engaging in counselling with a view to helping her to develop behaviours that facilitate, and do not impede, the children’s relationship with their father, irrespective of her own feelings about him.

[43] For these reasons we do not give effect to this ground of appeal.

Issue Three: Did the Mother Receive a Fair Trial?

[44] The mother asserts that she did not receive a fair trial because (1) the case was not presented effectively by her trial counsel; and (2) the trial judge did not demonstrate impartiality.

(1) The Claim of Ineffective Assistance of Counsel

[45] The claim of ineffective assistance of counsel was raised in the notice of appeal and the mother’s factum. The notice of appeal states as a ground of appeal that “the appellant’s counsel was incompetent, negligent or ineffective”. Her factum asserts that the mother was deprived of meaningful legal representation, that her trial counsel aligned himself entirely with the position of the father, that he refused to follow her instructions and declined to lead relevant evidence. She asserts that her trial counsel acted outside his mandate and instructions.

[46] At the outset of the hearing of the appeal the panel raised the concern that the mother had not followed this court’s protocol for appeals involving claims of this nature. The father’s counsel and counsel for the mother’s trial counsel argued that the ineffective assistance ground of appeal ought not to be considered because of the failure to follow the protocol. The mother’s appellate counsel sought an adjournment for the purpose of taking the steps required under the protocol.

[47] The mother’s trial counsel was represented at the hearing of the appeal and had filed a factum. Counsel for the mother indicated that she would be relying on the existing record, and that, even if an adjournment were provided, she did not intend to put forward evidence on this issue. In the exceptional circumstances of this case, the panel was satisfied that the record was sufficient to permit this ground of appeal to be considered based on the materials filed, and, in the interest of avoiding further delay, it would be appropriate to do so notwithstanding the failure to comply with the protocol.

[48] In order to establish ineffective assistance of counsel as a ground of appeal, an appellant must satisfy the court on a balance of probabilities that trial counsel’s conduct fell below the standard of reasonable professional assistance and that the ineffective representation resulted in a miscarriage of justice. A miscarriage of justice occurs when the ineffective representation undermines the appearance of the fairness of the trial, or the reliability of the result – in the sense that there is a reasonable probability that the result would have been different had there been effective representation: R. v. Archer (2005), 203 O.A.C. 56 (C.A.), at paras. 119-20.

[49] We do not give effect to this ground of appeal. The mother did not file any affidavit evidence to support the bald allegations in her factum of ineffective assistance of counsel. She has not provided any evidence in support of her allegations that trial counsel failed to follow her instructions, that he failed to lead relevant evidence that would have changed the result, or that he acted contrary to her interests.

[50] Nor do we agree that counsel’s ineffectiveness is obvious on the record. The mother contends that her position at trial was that she was a victim of domestic abuse, and that her counsel failed to advance this position. In fact, her evidence that there was abuse, including the GPS tracker incident, was squarely before the court in her trial affidavit. The issues at trial however, were whether the children were refusing to transition to their father’s care because of parental alienation or for some other reason, and the appropriate order to respond to those circumstances. The mother’s counsel brought out the mother’s evidence denying that she was alienating the children, her explanations for their behaviour, and her assertion that she was doing all that was required in bringing them to the access transfer. Her counsel cross-examined the various witnesses. In the end, the evidence of alienation was overwhelming. Even then, the mother’s trial counsel advocated for her position that reunification therapy (to which she had agreed) could occur without the need for a custody reversal and restriction on her access. There is nothing in the transcript to suggest that the mother’s counsel was ineffective or incompetent.

[51] The claim of ineffective assistance of counsel is not made out. We dismiss this ground of appeal.

(2) Did the Trial Judge Demonstrate Bias?

[52] The mother asserts that the trial judge showed a “lack of judicial impartiality”, and that as a result she had an unfair trial. She focuses on the trial judge’s interventions or comments over the course of the trial, which she claims were excessive and one-sided. This ground of appeal can be dispensed with briefly.

[53] The threshold for showing bias is high and requires cogent evidence. The standard is objective. The test is whether an informed person, viewing the matter realistically, and having thought the matter through, would conclude that the trial judge would not decide the matter fairly: McGregor v. Pitawanakwat, 2017 ONCA 77, at para. 19, citing Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394. See also Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 26.

[54] We have reviewed the passages the mother relies on as evidence of bias. Contrary to her submissions, none of the interjections and comments by the trial judge, viewed individually or collectively, would suggest to a reasonable person that the trial judge was biased, or that she had prejudged the issue of parental alienation. Her interjections occurred throughout the case, and for the most part were directed to keeping the evidence and submissions focused on the issues at hand, and preventing the witnesses who testified from straying beyond their observations and expertise. As the trial progressed, the evidence demonstrated a clear case of parental alienation. The father’s evidence went in first, and included the testimony of a number of professionals who had worked with the family. During closing arguments the trial judge observed that she was struck by how unusual it was for so many professionals involved with the family to uniformly conclude that a parent’s behaviour was the cause of alienation and the children’s risk of harm. She also noted that the mother had readily admitted to many of the allegations of alienating behaviour. These were fair and appropriate comments on the evidence before the court, and not an indication that the trial judge had pre-judged the issues.

[55] Accordingly, we see no merit to this ground of appeal.

Fresh Evidence

[56] The father sought to file as fresh evidence on the appeal his own lengthy affidavit, with various exhibits.

[57] The test for admitting fresh evidence on appeal requires the moving party to satisfy four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result: R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775.

[58] The Palmer criteria are more flexible where an appeal involves the best interests of children, where it is important to have the most current information possible “[g]iven the inevitable fluidity in a child’s development”: Goldman v. Kudelya, 2017 ONCA 300, at para. 25.

[59] Notwithstanding the more flexible approach for receiving fresh evidence where an appeal addresses the best interests of children, the fresh evidence in the present case does not meet the test for admission. The proposed fresh evidence is essentially a whole new record, full of lengthy, contextualized narrative, that expands on issues explored at the trial, and provides the father’s account of what has transpired since the order under appeal was made, including his assertions that the mother has failed to comply with the order.

[60] In Fiorito v. Wiggins, 2015 ONCA 729, 69 R.F.L. (7th) 5, this court admitted as fresh evidence two reports prepared by Dr. Ricciardi, the therapist who saw the parents and children on a weekly basis pursuant to the trial judge’s order which granted custody of the children to their father and limited the mother’s access to the children to the weekly therapy sessions. Similarly, we are prepared to receive the report of Ms. Geraldo, which summarizes the therapeutic work carried out with the parties and children pursuant to the trial judge’s order in the instant case. That report indicates that “as a result of the increased time with their father, the children have gone on to settle into their father’s care”. While the report is not essential to our decision to dismiss the appeal, it provides some comfort that the measures that were ordered are underway and have gone a considerable distance to restoring the children’s relationship with their father.

[61] Ms. Geraldo’s report also states that there have been problems with the mother’s engagement in the reconciliation therapy, in part due to her pursuit of this appeal. Now that this court has determined the appeal, affirming the decision of the trial judge, it is expected that she will comply with its terms, including the requirements for individual therapy and participation in the reconciliation therapy led by Ms. Geraldo.

[62] We dismiss the motion to admit fresh evidence, except for the report of Ms. Geraldo.

E. Disposition

[63] For these reasons the appeal is dismissed. The father and the mother’s trial counsel are entitled to their partial indemnity costs from the mother. If the parties are unable to agree on the amounts, we will receive brief written submissions. The father and the mother’s trial counsel are to provide their submissions within 15 days of these reasons, with responding submissions to be provided by the father within ten days thereafter, with no right of reply.

“K. Feldman J.A.”

“K. van Rensburg J.A.”

“L. Sossin J.A.”

[1] Pursuant to amendments to the Divorce Act, R.S.C. 1985, c. 3, (“the Act”) which came into effect on March 1, 2021, “custody” and “access” terminology has now been replaced by terms such as “decision-making responsibility”, “parenting time” and “contact”. Section 35.4 of the Act deems a person who had custody of a child by virtue of a custody order to have parenting time and decision-making responsibility and a spouse or former spouse who had access by virtue of a custody order to be a person to whom parenting time has been allocated. However, since counsel argued the appeal using the terminology under the original orders, our reasons will also employ the historical language.

[2] This is a broad outline only of the order, which contains detailed terms respecting the residence of the children, the required therapy, and the reporting to and supervision and review by the trial judge.

[3] This order was amended on April 13, 2017, to provide for access transitions at a Tim Horton’s, using the services of the Brayden Access Centre (“Brayden”), for times where the children were not in school. In June 2017, and after Brayden withdrew, a temporary order provided for access to be transferred at a police station.

[4] The father explained, in his affidavit evidence for trial, dated October 11, 2019, that he had done so when he feared that the mother would leave the country with the children, and take them back to Romania.

[5] The order provides that the trial judge will remain seized of the case, to review the progress of the children’s relationship with their father and to gradually increase their mother’s access. The order requires the mother to engage in individual therapy to assist her to recognize the need to support the children’s relationship with their father, and it provides that the court shall not undertake a review of the custody and access provisions of the order until the mother “engages and meaningfully participates in therapy to gain insight into her alienating behaviour and meaningfully works towards supporting reconciliation between [the father] and the children”.