WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2016-09-19

Court File No.: Kitchener 217/14

Parties

Between:

The Children's Aid Society of the Regional Municipality of Waterloo, Applicant

— And —

A.L. and P.L., The Respondents

Before the Court

Justice: C.A. Parry

Heard on: April 28, 2016

Reasons for Judgment released on: September 19, 2016

Counsel

• Danika Brown — counsel for the applicant society
• Brigitte Gratl — counsel for the respondent P.L.
• A.L. — on her own behalf
• Valeria Ruoso — counsel for the Office of the Children's Lawyer, legal representative for the children M.L.2 and M.L.1

PARRY J.:

1: OVERVIEW

[1] On March 7, 2014, the Children's Aid Society of the Regional Municipality of Waterloo apprehended 3 young boys: M.L.1 and M.L.2 (twins, born […], 2004), and M.L.3 (born […], 2009). These boys are the children of A.L. and P.L. These boys have an older sister, but she is a young adult, and therefore not the subject of these proceedings.

[2] The Society's protection application initially involved a request for a supervision order, wherein the Society sought to place the children with mom, and granting dad supervised access. The case can aptly be described as a high conflict one. By the time of the apprehension, the parents had been separated for about a year, dad had been charged with uttering threats towards mom, a contentious CLRA proceeding was in full swing. As a result of the protection application, the CLRA proceeding was suspended.

[3] During the course of the child protection proceedings, the Office of the Children's Lawyer was appointed to obtain and present the views and preferences of the twin brothers, M.L.1 and M.L.2.

[4] After nearly two years, the parties commenced a two-week trial. The evidence on that trial was heard in the weeks of January 25 and March 1. Submissions were then heard on April 28. I would note that, initially, the Society planned on bringing a summary judgment motion, but those plans were thwarted when P.L. announced the intention to bring a Charter application, which, it was argued, created a genuine issue for trial. At the outset of the trial, Ms. Gratl, on behalf of P.L., acknowledged that her Charter application was for all intents and purposes irrelevant to the child protection proceeding and could not give rise to a remedy that was germane to the proceeding. Accordingly she conceded that it was "safe" to withdraw the application. In effect, she conceded that this ill-fated Charter application was frivolous and vexatious. It is a shame that Ms. Gratl saw fit to initiate the application, because it derailed what would otherwise have been an entirely appropriate summary judgment motion. However, I will speak no further of the ill-advised Charter litigation.

[5] In his response to the protection Application, Mr. P.L. sought full custody of the children. By the conclusion of the trial, the Society and Ms. A.L. sought to have the children placed in the full custody of Ms. A.L. Counsel for the twin boys, supported the position taken by mom and the Society.

[6] On the first day of the trial, the parties consented to a finding, pursuant to s. 37(2)(g) the CFSA, that the children were in need of protection. In the words of that subsection, the parties agreed that there is a risk that the children were likely to suffer emotional harm, as described in s. 37(2)(f), resulting from the actions, failure to act, or pattern of neglect on the part of the child's parent(s). While the parties agreed to the finding, they did so for mutually exclusive reasons. Dad alleged that mom engaged in a systematic campaign of alienation that destroyed his relationship with his boys, causing their complete withdrawal from their relationship with him. The Society and Mom alleged that dad was an authoritarian drill sergeant, with a past history of physically abusive behaviour towards her and the children, who attempted to cause the boys to make false claims of sexual abuse against her new boyfriend, who caused the children to fear and resent him, and who ultimately and unilaterally withdrew from his children's lives for almost 2 years prior to the trial. Put another way, the Society and mom suggested that dad took many paths towards a journey that gave rise to the likelihood of serious anxiety and depression, not to mention a certainty of the complete withdrawal of the boys from a relationship with their father, as a consequence of his effective abandonment of them.

[7] While there are competing routes to the consent finding under s. 37(2)(g), there is one common path on which both parties tread, albeit for different reasons. That path is dad's complete absence from his children's lives from April 2014 to the present. Dad suggests that the Society effectively forced him to unilaterally withdraw from supervised access with his children, because the conditions attached to access were untenable. The Society and mom suggest that Dad alone is responsible for his decision to remove himself from his children's lives; that his withdrawal is consistent with his overbearing, unyielding, and egocentric personality; a personality that lacks almost any child focus. From the evidence tendered, a finding under s.37(2)(g) becomes inescapable, because the evidence overwhelmingly supports the conclusion that the children have effectively lost their father and have during the course of that loss suffered significant emotional harm and to varying degrees harboured significant resentment and ill will towards the father they lost. On any theory of the case, dad absented himself from the children's lives. His children thereby suffered serious harm.

[8] While the parties consented to a s. 37(2)(g) finding, the court must and will make factual determinations regarding the basis for the consent 37(2)(g) finding in order to properly consider the appropriate disposition. For the moment, it will suffice to say that the court heard scant evidence capable of substantiating a claim that mom engaged in a systematic campaign to alienate dad from the boys. There is little evidence of any intentional acts by mom that may have caused estrangement between dad and the children. In addition, there was no expert assessment of the parents, the children, or of any of the evidence tendered at trial. Accordingly, the court was not provided with an expert opinion on the existence of attempted or successful parental alienation. Instead, the court was asked to function as the expert, applying the analytical framework employed by experts in previous court cases to the evidence presented in the case at bar.

[9] The preponderance of the evidence, even evidence adduced by dad, established that dad is an authoritarian who wilfully alienated himself from his children when his authority autonomy and parenting ability were challenged by the Society and his former spouse. Given that I am entitled to consider evidence arising at any time up to and including the date of the court hearing [see CAS Brant v. T(JA.) 2005 ONCJ 302], I have no hesitation in concluding that dad's selfish, stubborn, and callous withdrawal from his children's lives created a real risk of emotional harm, as contemplated by s. 37(2)(g). I would observe that it is a complete shame that Mr. P.L. put his pride and anger above the interests of his children. Had he shown a modicum of co-operation with the Society, I suspect that the file would eventually have been closed and the issues of custody and access would have been resolved in the CLRA proceeding.

[10] In any event, the findings issue quickly resolved, the focus of the trial shifted to the disposition issue, as governed by ss. 57 and 57.1 of the Act. For the reasons that follow, I have come to the conclusion that A.L. ought to be granted sole custody of the children, pursuant to s. 57.1 of the CFSA. A.L. will have sole discretion as to if, when, and how often P.L. will have access to his children.

2: FAMILY HISTORY

[11] A.L. and P.L. met in London, England in 1996. A.L. was from Serbia and was visiting her aunt at the time. P.L. was obtaining a master's degree in mathematics. They began a relationship. In January of 1998, they had their first child, N. Then in 2002, the couple moved to Greece, the native country of P.L. While living in Greece, they had three more children, M.L.1, M.L.2, and M.L.3. During their time in Greece, the couple endured some marital disharmony. Indeed they separated briefly there. According to Ms. A.L., Mr. P.L. was domineering and at times physically abusive to her and the children. Mr. P.L., for his part, would seem to admit that he can be rather domineering, but denies being physically abusive. In any event, the couple reconciled. Ultimately, Mr. P.L. then moved to Canada in 2012, with the goal of bringing the rest of the family once he found work and was able to support them. Several months later, A.L. and the children followed.

[12] According to A.L. and the children, P.L.'s physically abusive behaviours essentially ceased in Canada, perhaps because of a recognition of different societal expectations in his new homeland. However, according to A.L., his authoritarian grip over the household continued. Her position is effectively corroborated by accounts given by the children to Society workers.

[13] A.L.'s chief complaint about her husband, since her arrival in Canada, is that he was authoritarian, obsessed with the scholastic achievement of his children, largely humourless, and unaffectionate. Metaphorically speaking, he was part drill sergeant and part headmaster. During Mr. P.L.'s testimony, it became clear that he was preoccupied with the scholastic achievement of his children. He also conceded that he could be stern and either yell or use a loud voice when dealing with the children. He also acknowledged that he was not one to show much physical affection to his children. He also took pains to remind the court that he was an educator, who took umbrage at the suggestion that an outsider could teach him anything about parenting. One of his own witnesses, Lucy Grigoriados, described Mr. P.L. as old-fashioned and authoritarian. She testified that there were many times that she counselled him and suggested that his authoritative way was affecting his relationship with the children. She testified that Mr. P.L. did not like the word "freedom". He was worried that freedom would bring more trouble to the children. He wanted them to be more disciplined. Ms. Grigoriados testified that Mr. P.L. acknowledged his authoritative nature, yet did not believe his authoritative nature was the reason for the estrangement between he and his children. She also noted that he could not move past what he perceived to be the false allegation made against him by his children. As she put it, unless he clears his name, he gives up -- he cannot move forward with counselling, his life, or with his children.

[14] I stress, at this point, though, that in describing Mr. P.L., I am describing some of his predominant characteristics. As with any human being, he is multi-faceted. I accept that he could at times have fun and be fun with his family. I accept that despite having a self-centred and authoritarian persona, he could, in his own way still feel love for his children. But I also accept that his egocentric, arrogant, and authoritarian personality traits tainted other aspects of his personality.

[15] Eventually, the marriage hit its breaking point. On March 11, 2013, P.L. and A.L. were engaged in an argument about a trip to London for the children's Serbian folk dancing class. Money was tight. Mr. P.L. may have also been suspecting that A.L. and the dance teacher, B.C. may have been closer than he liked – it is not clear to me when he first held those suspicions. In any event, they argued about whether or not she could take the twins on the trip. During the argument N. called the police to report that P.L. had threatened A.L. by saying "if you take the money, I will kill you." P.L. denies the threat, but acknowledges a heated argument. A.L. maintains that a threat was made. Given his authoritarian nature, and given the barely constrained rage he brought to the witness stand, it is certainly conceivable that he uttered a threat in the heat of the moment. I am certainly not in a position to reject A.L.'s claim. Mr. P.L.'s claim that he uttered words to the effect of "get off my back" seems implausible, since it was he, not A.L., who was pressing the issue [by telling her not to go to the recital and by telling her that they could not afford the money for the recital]. In any event, I am prepared to give him the benefit of the doubt and conclude that he uttered words that were interpreted in a way he did not intend. Whatever was intended, P.L. was arrested as a result of words spoken in anger. Those charges were later withdrawn.

[16] Almost immediately after Mr. P.L.'s arrest, B.C. moved in to Ms. A.L.'s residence. I am skeptical of Ms. A.L.'s claim that she and B.C. were not romantically involved when he initially moved in. Mr. P.L. may be right to believe an affair had begun prior to the domestic dispute that led to his arrest. However, I am not prepared to reject the sworn evidence of A.L. and B.C., who both indicated that the romance bloomed after he moved in to ensure A.L.'s safety. There may have been a latent attraction, there may have been something more, but these thoughts are just speculation. I am also not prepared to find that Ms. A.L. fabricated the threat allegation to further gain exclusive occupation of the matrimonial home. It was N. who reported the threat allegation, not her mother. I accept as a fact that both N. and A.L. heard words that they believed constituted a threat. Consequently, the timing of the romance between B.C. and A.L. is irrelevant.

[17] In any event, it is clear that the marriage was over by March 11, 2013. Mr. P.L. was out of the family home, where mom remained with the four children. CLRA proceedings were soon commenced and by August of 2013, Justice Epstein made a temporary order, granting dad access to the children. After a lengthy stay with Dad at the end of August, mom contacted the Society and advised that the children were reporting that dad was yelling at them and asking probing questions about B.C., mom's new boyfriend.

[18] While the Uttering Threats charge was still pending, N. and A.L. saw Mr. P.L. driving by the family home. They reported the incident to the police. Consequently, Mr. P.L. was charged. Like the Threats matter, the Breach matter was ultimately withdrawn. Both A.L. and P.L. testified about the allegation. I accept that A.L. genuinely believes she saw him. However, I am also prepared to accept Mr. P.L.'s evidence, wherein he testified that he was at work and did not drive by her residence. Frankly, I found no reason to disbelieve either of them on this issue. That leads me to the conclusion that A.L. was most likely mistaken about the sighting; and that her complaint was made in good faith. Needless to say, this allegation did nothing to assuage the acrimony between the couple.

[19] Dad's consternation about mom's new boyfriend became even more apparent after he went to the police to allege that B.C. had engaged in inappropriate physical/sexual contact with M.L.3. The children ultimately did not substantiate this complaint when interviewed by the police. Indeed, the children reported to the police that dad pressured them into admitting impropriety when none actually occurred. When P.L. reported this complaint to the police, he also reported that N. had previously hit M.L.3. This complaint was also unsubstantiated. I am highly suspicious that dad fabricated both complaints in revenge for N.'s police complaint and B.C.'s adulterous affair with A.L., but I must keep in mind that none of the four children have testified, so it becomes difficult for me to ascertain from hearsay utterances what transpired, even if the parties have consented to the use of the 3 boys' out-of-court statements for their truth. Having said that, I have observed that, during the trial, P.L.'s anger and resentment toward both B.C. and his own daughter were palpable. He has effectively severed ties with N., and she with him. He has shown little to no interest in repairing that relationship over the last 3 years, despite the absence of any court order preventing an attempt at reconciliation. He refers to B.C. as his ex-wife's gigolo lover. He refers to his ex-wife in a similar fashion. In his words, she is "dishonourable" (damaged goods) as a result of her decision to leave the marriage and have a new relationship. When considered against the evidence of A.L., B.C., the Society workers, and the reports of the children as provided [on consent of all parties] by these witnesses, I have no hesitation in concluding that B.C. has been an extremely dedicated spouse and step-father who has built a strong and loving relationship with the children and A.L. I consequently accept that no inappropriate contact occurred and that Mr. P.L. pressured the complaint about B.C. into its ephemeral existence.

[20] Shortly after the unsuccessful police complaint by Mr. P.L. about B.C., Mr. P.L. suspended his access visits with his children indefinitely. He testified that the access was suspended because the children were misbehaving during visits and were expressing frustration that they were missing out on Serbian dance classes during these access visits. It never occurred to him that the children might be reacting to the high conflict marital separation. It also never occurred to him that he might take the children to their dance classes during his access weekends. It also never occurred to him to alter the access schedule to accommodate the dance classes. Likewise, it never occurred to him to have a civilized discussion with his former spouse about these issues. Rather, he unilaterally advised the lawyer for his former spouse that the visits would be suspended indefinitely. Rather than shoulder the full blame for this decision, he tried to shift it to his children. He suggested that they all arrived at the decision mutually; apparently oblivious to the notion that these young children should not have been part of decisions of this nature; apparently oblivious of the imbalance of power in the relationship between he and his children; apparently oblivious to the possibility that his suggestion about the termination of access might be viewed by his children as a rejection.

[21] Put bluntly, the separation was toxic and infused with animosity. The Society sent a letter to both parents in January of 2014, to advise both parents of its concerns about the children being exposed to ongoing conflict. However, given that there were substantiated allegations of physical abuse, the Society declined to formally intervene.

[22] However, by March 6, 2014, the situation changed.

3: THE COMMENCEMENT OF THE PROTECTION APPLICATION AND THE EVENTS THAT HAVE OCCURRED SINCE

[23] On Thursday, March 6, 2014, M.L.1 complained to staff at school that Mr. P.L. had hit him during an access visit the previous Wednesday. The children were scheduled for an access visit the next night, Friday. At its highest, the complaint was about overly aggressive conduct during swordplay, when telling the kids that the game was over. M.L.1 alleged that his dad hit him hard on the back with a play sword and then with the back of his hand. The sword fight had involved some rough-housing. It may well be that Mr. P.L. did not realize his own strength. It also may well be that he did not knowingly cause his children physical harm or fear during the incident. I accept, having heard his evidence, that he honestly did not know that he had gone too far or had harmed or scared his children. I likewise accept that the children were genuinely anxious about going to their next access visit with their authoritarian father. I am prepared to accept that M.L.1 had a genuine negative response to sword play, despite the fact that his father meant no harm. In the grand scheme of things, the incident was therefore a relatively minor one. However, it occurred in the context of a high conflict separation, where each parent was complaining to the authorities [child welfare and/or police] about the other, where dad was livid about being replaced by another man, and where dad continued in his cold authoritarian ways.

[24] I will pause to note that Eddie Farruggio testified about the sword incident, to suggest that no untoward violence occurred and to suggest that the children were at all times happy. He purported to have been home in time to witness the incident because he got out early that day, and so he was able to visit his mother and return in time to see the incident. He indicated that he knew he got out early that day, because it was Christmas. When it dawned on him that the incident occurred in March, he then suggested that he got home at his usual time, but had returned home early from his visit to his mother. To put it mildly, he was an extremely unreliable witness. However, I do not think much turns on it, because I have concluded that at its highest, the incident was a minor one, about which both Mr. P.L. and the children could have legitimately differing perspectives.

[25] While a relatively minor event, given the toxic history, it is no surprise that the Society felt the need to investigate. Had Mr. P.L. agreed to suspend his access visit that Friday night to allow an investigation, there may never have been a child protection application. However, in what has become a recurring theme, Mr. P.L. and the Society were at an impasse. He wanted his access visit. They wanted to investigate. As a result of the impasse, the Society had to apprehend the children.

[26] Following the apprehension, the Society, in its desire to ensure that the children were safe and would not be anxious about visits with their dad, initially sought supervised access. They also sought to have Mr. P.L. engage in some counselling. They also wanted Mr. P.L. to refrain from confronting the children about the allegations. To ensure that access visits were appropriately conducted, the Society also insisted that Mr. P.L. speak English with the children [who, having been in the country for about a year and a half, could speak English] or allow a translator to be present. This Society intervention ought to have been brief, but Mr. P.L.'s conduct made brevity impossible.

[27] Mr. P.L. took great offence to the notion that the Society gave any credence to the complaints of M.L.1 and M.L.2. In his mind, he was experiencing prejudice, a presumption I was the abuser of his children and wife. In his mind, they did not treat him with respect and as an equally qualified parent of the children. He was highly offended at the suggestion that he might need counselling in order to better relate with his children and reduce the risk of any future incidents of harm and/or anxiety. He translated the Society's concern for the well-being of the children into an unjustified indictment of him.

[28] His backlash against his worker was tinged with misogyny and arrogance. He repeatedly referred to and relied upon his perceived exalted status as an educator, suggesting that he could teach others a thing or two about parenting, and suggesting that the workers, not him, needed counselling [in business ethics, for example]. When rejecting the notion of counselling, he testified that his [female] worker might benefit from retail therapy.

[29] He testified that he found the suggestion that he take counselling "insulting". He essentially testified that as an "educator" he knew better than the worker. "Especially a person like myself" was one phrase used to describe his self-perceived exalted status. In his mind, he was highly qualified to "take on the information" and decide "if the program was suitable". He went on to testify that "I went on to be kind enough to say that I don't see the need for the counselling that you are suggesting." His arrogance, condescension, and anger were palpable when discussing the possibility of doing counselling for the purpose of assuaging the concerns raised by the allegations made against him.

[30] At times Mr. P.L. alleged that his twin sons were perpetrators of a lie against him. At other times, he seemed begrudgingly willing to acknowledge that perhaps they honestly perceived the swordplay as being too aggressive – that the whole thing may just have been a misunderstanding. But rather than focus upon putting the rather trivial incident behind them, he fixated on it. He had to be right. He could not let an allegation stand, even if it was the innocent product of a misunderstanding. In his mind, if he could not confront them with the [possible] lie [which possibly may have been a misunderstanding] his children could not grow up to be moral human beings. In his mind, until he could convince his children that they lied, communication between he and the children was "meaningless." Consequently, he proposed to only attend access visits for a few minutes, to ensure the well-being of the children, before departing. In making these declarations to the court, he had no clue that he was betraying himself to be proud, autocratic, self-absorbed, stubborn, and selfish. He also had not considered the possibility that a 3-minute well-being check might actually be perceived by his children as a partial rejection; that maybe the children would wonder why he did not want to be with them for longer. It did not occur to him that he might simply ask permission to apologize for doing anything that might have scared or alarmed the children, before focussing on the present, focussing on his children, and focussing on building a bond with his children. It also did not occur to him that, even if he did not do anything wrong, even if the whole thing was a misunderstanding, that others might rightfully want to ensure his children's safety and happiness. Likewise, it did not occur to him that counselling could not hurt him and might make him a better parent, even if he did nothing wrong. Rather than treat co-operation and conciliation as a no-lose strategy, he stubbornly dug himself in.

[31] The Society balked at the notion of 3-minute well-being checks. They viewed such notional visits as being contrary to the emotional well-being of the children. I could not agree more. They insisted on full visits, with no discussion/confrontation over the alleged sword assault, and with the ability to know what dad was saying to the children.

[32] Mr. P.L. would not accept those terms. He was prepared to cease all access, rather than accept these relatively modest terms for what should have been a relatively short supervision period. Instead, he suspended his access visits. He also complained about his worker to her superiors, tried to get a new worker, and made a complaint to the CAS tribunal. None of his tactics succeeded. As a result, he has not seen his children since April of 2014 – over 2 years – despite the continuing existence of a temporary order that permits supervised access.

[33] When asked if he would accept and follow an Order for supervised access from this trial court, he indicated that he would go to another governing body. I think this was perhaps a reference to an appeal or judicial review. Whatever it was, it remained clear that he would not have contact with his children unless it was on his terms.

[34] During the last 3 years of the Society's involvement, the workers have had an opportunity to observe A.L. parent her children. They have also had an opportunity to observe and get to know her boyfriend, B.C. While Mr. P.L. may voice suspicions to the contrary, the reports about A.L. and B.C. are glowing. Both are dedicated and loving parents to the children. The children are thriving. They are happy. They love A.L. and B.C. Society workers have seen virtually no evidence of alienation. In that regard, I would point out that A.L. and the Society were initially jointly seeking supervised access for Mr. P.L. Society workers have also seen no evidence of inappropriate parenting by Ms. A.L. She is described as loving, caring, and nurturing. And the children respond quite favourably to her. Their experience of Ms. A.L. over an extended period of time is a far cry from the picture painted by her former husband – which suggests the picture painted by her former husband may not be an accurate one.

[35] The Office of the Children's Lawyer was appointed for the twins on March 12, 2014, and has therefore been involved with the twins throughout the entirety of this child protection application. Counsel for the twins confirms that the children do not wish contact with Mr. P.L. Counsel, who has a fiduciary duty in this proceeding, has not advanced any concerns about deliberate alienation by mom.

4: THE POSITION OF THE PARTIES

[36] The Society seeks an Order, pursuant to s. 57.1, granting A.L. sole custody of the children, with sole discretion as to if, when, and how often to grant access to Mr. P.L. In the alternative, the Society seeks a Supervision Order, placing the children in the care and custody of A.L., and granting supervised accessed to P.L.

[37] A.L. concurs with the Society.

[38] OCL counsel for M.L.1 and M.L.2 also concurs with the Society's position.

[39] P.L. seeks the sole custody of the children, with the exception of A.L. He recognizes that his 12 year old children do not want to live with him and appears willing to respect their wish to reside with their mother, which would result in the separation of M.L.3 from his other siblings. His position seems to fluctuate and be a bit unorganized. At times he suggested that the children should not have contact with A.L. until A.L. receives counselling regarding parental alienation, at times he suggested he would respect the twins' wishes regarding their place of primary residence, and at times he suggested M.L.3 could have whatever access schedule the court thought appropriate. Be that as it may, the crux of his position is that he ought to have sole custody of all three children, even if only one resides with him.

5: ANALYSIS

A. The Section 37(2) Finding

[40] The parties consented to a finding under section 37(2)(g) of the CFSA. As noted, I agree that this agreement was entirely appropriate.

Section 37(2)(g) states:

(2) A child is in need of protection where,

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

[41] Subclause (f) states:

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

[42] I have heard evidence of the children's significant anxiety, withdrawal from their father, and aggressive or unruly behaviour. This behaviour occurred during the course of a high conflict separation, where each parent was anxious to complain to either the police or the CAS about each other. Dad says that these harms flow from mom's deliberate attempts at alienating him. In doing so, he glosses over behaviours of his own that mirror the ones he complains about. I highlight, for example, the failed attempt at getting B.C. charged with a sexual offence. Having observed firsthand dad express his anger, arrogance and condescension it is easy for me to conclude that Mr. P.L. was not someone the children would likely have enjoyed being around. However, I need not dwell on this nuanced and nebulous factual history of the marital breakdown to make the finding.

[43] As noted, the facts that support a 37(2) finding can arise from events that occur any time between the apprehension and the date of trial. In my view, dad's deliberate and self-imposed alienation for almost two years [April 2014 to January 2016] provide ample support for a finding. He dropped out of their lives of his own volition. He did so because he was stubborn, unyielding, combative, and self-centred. He did so after a period of a year in which the children were exposed to a high degree of matrimonial conflict. He did so after a brief episode in which he suspended access indefinitely because of the children's unruly behaviour. And he did so without any regard to the psychological consequences upon his children. In my view, this alienation exposed all of the children to a risk of emotional harm: a risk of serious anxiety, depression, withdrawal. M.L.1's Father's Day letter, penned about 2-3 months after dad's departure, shows that, at least with one child, the risk was fully realized.

[44] Consequently, I fully agree with the parties' consent to a s. 37(2)(g) finding.

B. DISPOSITION

(I) Section 56 Requirements and the Remedies

[45] Prior to making a disposition under s. 57 or 57.1, s. 56 of the Act requires that I consider the society's plan of care.

[46] Section 56 states:

56. The court shall, before making an order under section 57, 57.1, 65 or 65.2, obtain and consider a plan for the child's care prepared in writing by the society and including,

(a) a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection;

(b) a statement of the criteria by which the society will determine when its wardship or supervision is no longer required;

(c) an estimate of the time required to achieve the purpose of the society's intervention;

(d) where the society proposes to remove or has removed the child from a person's care,

(i) an explanation of why the child cannot be adequately protected while in the person's care, and a description of any past efforts to do so, and

(ii) a statement of what efforts, if any, are planned to maintain the child's contact with the person;

(e) where the society proposes to remove or has removed the child from a person's care permanently, a description of the arrangements made or being made for the child's long-term stable placement; and

(f) a description of the arrangements made or being made to recognize the importance of the child's culture and to preserve the child's heritage, traditions and cultural identity.

[47] Section 57 of the Act states:

57.--(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

Court to inquire

(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

Idem: where child an Indian or a native person

(5) Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,

(a) a member of the child's extended family;

(b) a member of the child's band or native community; or

(c) another Indian or native family.

[48] Section 57.1 of the Act reads as follows:

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

Deemed to be order under Children's Law Reform Act

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

Restraining order

(3) When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with section 35 of the Children's Law Reform Act.

Same

(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Children's Law Reform Act, and shall be treated for all purposes as if it had been made under that section.

Appeal under s. 69

(5) Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under section 69.

Conflict of laws

(6) No order shall be made under this section if,

(a) an order granting custody of the child has been made under the Divorce Act (Canada); or

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court.

[49] The Society proposes that A.L. be granted full custody. It argues that all reasonable steps were taken prior to apprehension. They were forced to apprehend when Mr. P.L. insisted on an access visit, despite the fact that the Society had not yet been able to investigate it. I agree.

[50] The Society argues that placing the children in the care of Mr. P.L. is untenable – even his care is limited to supervised access and A.L. has primary care and custody. I agree. It would do untold harm to remove the children from their mother's home, where they are thriving, and place them with a man they have not seen in over two years. Moreover, even access visits are untenable. P.L. is completely resistant to compromise. Even his own friend and witness agrees he cannot put the relatively minor assault allegation behind him. He is not prepared to have a relationship with his children unless he can first convince the twins that they lied about him. He rails at compromise with almost every fibre of his being. He fails to understand the futility of this stance. And he takes this stance without any sufficient appreciation of its impact upon his children. Until Mr. P.L. can learn to let go of the past, can learn some humility, can learn to be more amenable to compromise, and can learn to be more child-focussed in his decision-making, he will be stuck in the obsessive rut in which he currently finds himself. Unfortunately, I fear the words "I am sorry" may not be in Mr. P.L.'s vocabulary. If they were, his first communication might begin with "I am sorry I have been gone for so long". Sadly, I suspect the children will likely wait a very long time before hearing those words.

[51] The Society points to the status quo over the last two years, when arguing that granting full custody of the children to A.L. is in the best interest of the children. According to the witnesses who have observed the children and their family unit, the children have flourished over the last two years. During that time, the children have developed a loving relationship with their step-father. They are thriving at home. They are thriving at school. They are healthy and happy young people. And they do not want to see the father who absented himself from their lives.

[52] Over the last two years, the Society made every [reasonable] effort to encourage a safe reintegration of the children and their father. They even went to considerable effort to make supervised access visits more palatable to Mr. P.L. by making concessions about the staffing of those visits. Mr. P.L. has made it clear, however, that he was not nor is he willing to cooperate with the Society. Cooperation with the Society is mandated more than ever, given the significant passage of time. M.L.3 has spent about a third of his life without his biological father. The twins do not want to see him – and one of them voices obvious animosity towards him. In my view, reintegration at this point would likely require significant support from counsellors, to assist the children in becoming receptive to contact with their father, and in order to prevent the emotional or psychological harm to the children when contact occurs. Mr. P.L. openly declares he would resist a supervision order and would fight against it in another forum [an appeal perhaps].

[53] The children have a viable long term placement. For two years, the children have thrived in this placement. The preponderance of the available evidence suggests that the children will continue to thrive. In addition, both mom and step-dad have shown themselves prepared to take steps to recognize and foster the children's dual cultural heritage. B.C., in fact, had previously encouraged the children to speak Greek. However, due to the nastiness of the separation and parental conflict, the children found speaking Greek somewhat painful, but B.C. is still prepared to support the children in speaking Greek. At this juncture, though, the children have eschewed speaking in Greek.

[54] The Society suggests that A.L. is well placed to look after the best interests of her children, as she has proven for the past two years that she can do so. She is likewise well placed to determine whether or if the children can or ought to be exposed to access with their biological father. P.L. is steadfastly opposed to a supervision order that involves supervision by the Society. In doing so he has effectively painted himself into a corner. Given the evidence heard at trial, the Society argues that a supervision order is not in the best interests of the children. Mr. P.L.'s stance, coupled with his determination to remain at odds with the Society, render a supervision order close to meaningless. Having regard to the requirements of s. 56, the Society therefore argues that the granting of full custody of the children to A.L. is in the best interests of the children. Counsel for the OCL concurs, as does A.L.

[55] P.L. argues that his absence from the children's lives is not in their best interests. This is his primary critique of the Society plan. Given my finding that he voluntarily estranged himself from his children, and given my finding that there is insufficient evidence to prove the perpetration of pathological parental alienation by A.L., this chief complaint against the Society's plan of care rings hollow.

[56] P.L. proposes an alternate plan. The position of P.L. borders on the absurd. At times he [and his counsel for that matter] suggested that the Society was to blame for his withdrawal from access. His position was tantamount to declaring "It wasn't my fault. They made me do it." There is a lot of real estate between this position and the truth. When Mr. P.L. did not get his way, he simply called off access visits. He blames his adversary for not capitulating, but he fails to realize that he had no power to call the shots. He claims to have been disrespected, but he failed to respect the statutory duty of the child protection workers when they receive reports of abuse. He failed to understand that the people he vilified were attempting to ensure the best interests of his children and were attempting to find a safe way to reunite him and his children. As with his decision in January of 2014 to suspend access visits, he also failed to take full responsibility for his decision to cease contact with his children. He also failed to give any significant thought to the message he would send and the harm he might cause to his children by disappearing for two years.

[57] As noted, the preponderance of evidence, including evidence called on behalf of Mr. P.L. establishes that Mr. P.L. has been stubborn, authoritarian, strict, arrogant, litigious, self-centred and selfish. Even his plan of care does not give due regard to its potential impact upon the children. Recognizing that the twins want nothing to do with him and are getting older, he wants full custody despite the fact that they will almost certainly reside with their biological mother and almost certainly decide to have nothing to do with him. This proposal makes no sense; and it certainly is not child focussed.

[58] There is little evidence of an intentional campaign of alienation by Ms. A.L. against Mr. P.L. The preponderance of the evidence suggests simply that his children do not like him because he is strict, overbearing, hot headed, and exceedingly bitter about his "dishonourable" [his words, not mine] wife's decision to leave the marriage and start a new relationship with a "gigolo" [his words, not mine]. He has so caught up in the conflict with his wife that he appears to have forgotten about the happiness of his children.

[59] I appreciate that the children showed some reluctance during supervised access visits. I also appreciate that the children may have provided resistance to access visits prior to the initiation of CAS proceedings. However, a child's fear or rejection of an access parent does not per se prove that the custodial parent engineered the alienation. It is not uncommon for children to choose sides, to prefer one parent over another. When one parent takes pride in being a strict headmaster, who will admittedly yell at the children, and who will suspend access indefinitely in response to misbehaviour, it is hardly surprising that the children might find time with that parent somewhat less enjoyable than with the other. Throughout his testimony and the entire trial, P.L. infused the courtroom with anger. He did so with his words and with his demeanour. He was the picture of barely supressed rage. Demeanour can be a deceptive piece of evidence at times. It should be relied upon sparingly, and given little weight in most circumstances. However, there are times where a witness' demeanour is so palpable and coincides so perfectly with the content of his testimony, that it cannot be ignored. The content of this man's evidence tells me that he is enraged that his wife left him for another man, that she disrespected him and behaved "dishonourably", that he lost control of his family [of which he was the head], that his own daughter turned against him, and that the Society intervened in his life and tried to tell him how to be a better father. He could not restrain himself from making submissions during his evidence. At times, he could not restrain himself from speaking out of turn. At times, he could not restrain himself from being argumentative or from making pejorative remarks about his wife and her "lover". As this content came from his mouth, so did his angry demeanour. This is how he behaved in a courtroom before a judge he was hoping to curry favour with. I cannot but wonder how much worse he might be when those with decision-making authority are not watching. His truculent nature was equally prevalent in most of his dealings with the Society staff. I am therefore not surprised in the least that his children did not want to be around him during this acrimonious family breakup. I fear Mr. P.L. was too self-absorbed to notice the poisonous effects of his behaviour and his anger. I also fear that refusal to take responsibility for decisions that were his and his alone has hindered his ability to act in the best interests of his children.

[60] I doubt Ms. A.L. behaved perfectly at all times. No one does during a marital breakdown. It would be surprising if she restrained herself entirely from making negative comments about her ex-husband, particularly if she and the children had been the subject of abuse in the past, given the existence of allegedly false allegations to the police, and given the existence of persistent complaints by the children about their father. It may well be that Ms. A.L. spoke too freely about her husband when speaking on the phone to Ms. Grigoriados and others. It may be that the children overheard some of this. That said, I would have to speculate about what the children may have heard. However, the odd slip here and there do not amount to a pattern of pathological alienation.

[61] I am also mindful that a friend of Mr. P.L. testified that one of the children claimed that mom encouraged the children to behave badly during a visit. Assuming the child did say as much, the credibility and reliability of that claim is cast in doubt by the sworn evidence of Ms. A.L. to the contrary. This case cannot turn on that one out-of-court utterance, even if the parties have consented to it being considered for the truth of its contents.

[62] No expert evidence was called in this case. There was no expert assessment of the children, no expert interpretation of the evidence called, and no expert assessment of the parents.

[63] There can be estrangement between children and a parent without the fault of the other parent: see CAS of Toronto v. L.D. Ha and M. Hu, 2008 ONCJ 783. In the case at bar, there is ample evidence, even coming from witnesses called by Mr. P.L., that Mr. P.L.'s personality traits likely made access visits with him to be the source of consternation and anxiety in the children.

[64] Unfortunately, Mr. P.L. has been the author of his own misfortune. As a result, the children have lost the opportunity to have a positive and meaningful relationship with their father.

[65] His children need permanency. They have a stable and loving home environment. They are thriving in all the ways that matter. As a result, it is my view that a custody order in favour of A.L. is in the best interests of the children. Having regard to the two year status quo, in which Mr. P.L. has voluntarily absented himself from their lives, it is also the least disruptive disposition available. Mr. P.L.'s intransigence makes a supervised access order futile; it also supports the conclusion that contact with Mr. P.L. would likely be contrary to the best interests of the children. Hopefully, Mr. P.L. will relent and change his ways. Until then, I am of the view that contact with his children is likely to do more harm than good, particularly for the children are resistant to contact.

(ii) Conclusion

Having found that a custody order is in the best interests of the children, and having found that, for foreseeable future, access by Mr. P.L. is not in the best interests of the children, this court Orders that A.L. shall have full custody of M.L.1 (born […], 2004), M.L.2 (born […], 2004), and M.L.3 (born […], 2009). Access by P.L. shall be at the sole discretion of A.L.

Released: September 19, 2016

Signed: "Justice C.A. Parry"