ONTARIO COURT OF JUSTICE

DATE: 2018-11-09

File No.: Brampton 308/16

BETWEEN:

H.B.

Applicant

— AND —

M.B.

Respondent

Before: Justice Philip J. Clay

Heard on: April 23, 24, 25, 26, 27, 30, June 29 and September 11, 2018

Reasons for Decision released: November 9, 2018

Representation:

• The Applicant: represented himself
• Ms. L. Menon and Mr. Paul: for the Respondent until August 10, 2018
• The Respondent: did not attend court on September 11, 2018

CLAY J.:

PROCEDURAL BACKGROUND

Representation

[1] This Application concerned the custody of and access to the child H. born […], 2008. The Applicant H.B. had previously been represented by counsel in this proceeding but by the time of trial was acting on his own behalf. He did have counsel in the support and property proceedings in the Superior Court of Justice ("SCJ"). The Respondent M.B. had been represented for most of this proceeding and was also represented by counsel in the SCJ proceeding.

[2] After the Trial Management Conference M.B. retained Ms. Menon to represent her. Ms. Menon represented M.B. throughout the trial, to and including June 29, 2018, when I made a temporary order and adjourned the matter to September 11, 2018 for the review of updating affidavits and further evidence. A Notice of Change in Representation was filed on August 10, 2018 by which M.B. advised that she was representing herself. This Notice was prior to the due date of M.B.'s updating affidavit. M.B. failed to prepare an affidavit and failed to attend court on September 11, 2018.

[3] M.B. was provided with Punjabi interpreters throughout the trial. I note that Ms. Menon speaks Hindi, a related language, but to ensure good communication with M.B. outside of the trial evidence Mr. Paul, a Punjabi speaking lawyer sat in for the trial and the submissions on June 29, 2018.

The mid-trial adjournment

[4] The trial proceeded from April 23-30. At the opening of the trial I noted that both parties had accepted the recommendations of Ms. K. Schweitzer, the clinical investigator for the OCL, that counselling be put in place. One of the counsellors was to be someone who was very experienced in family reintegration. That counselling did not occur.

[5] On April 30 I adjourned the matter to June 29 to receive submissions on the issue of whether a temporary order should be made for reintegration therapy before this trial resumed. I intentionally chose this date as it was the last day of school prior to the summer vacation. The evidence of all parties was that H. was a bright student who enjoyed school. The very concerning behaviours that he had exhibited elsewhere had not been apparent at his school. In fact Ms. Schweitzer had said that school was a "safe place" for a child that she found was otherwise very stressed and confused. I did not want to consider making an order that might change H.'s residence prior to the end of the school term.

[6] H.B. submitted in his opening statement on April 23 that he wanted to have Dr. Barbara Fidler involved and to work with her Families Moving Forward program ("FMF"). Ms. Schweitzer's evidence was that there were different modalities for reintegration therapy and what will be best for a particular family will very much depend on the unique circumstances of that family. Based upon the trial evidence that I heard up to and including April 30 and upon my review of the FMF materials provided by H.B. I decided on June 29 to adjourn this matter so that the parties could contact FMF and receive some information as to what type of therapy, if any, could be of assistance to the parties and the child. The matter was adjourned from April 30 to June 29 to allow time for the intake process and the delivery of a report that would include therapy options for this family. Dr. Shelly Polak of FMF was assigned to do the clinical intake and her report was to be emailed to the parties on June 27.

Submissions with respect to a temporary order

[7] On June 29 H.B. filed the FMF documents with therapy options that could be made available to the parties. I note that FMF required that both parties sign a consent to participate in the FMF process. FMF did not make recommendations on where the child should reside while therapy was being undertaken. They provided an option that had the child continuing to reside with M.B. and one that required a change in residence and a no contact order during the therapy process. It was left up to the court to choose the option that it considered appropriate for this particular family.

[8] H.B. made submissions on the trial evidence to date and requested that the court make an order for FMF intervention with H. residing with him throughout the intervention. Ms. Menon for M.B. submitted that it would be traumatic for H. (whose 10th birthday was the next day) to change residences against his stated wishes.

Oral Reasons

[9] On June 29 I gave lengthy oral reasons in which I made reference to the evidence of the parties, the OCL report and the oral evidence of Ms. Schweitzer. I decided to make the temporary order that was supported by the evidence and to adjourn this trial to September 11 for a review of the progress of reintegration therapy.

[10] At the time that I originally adjourned this matter in April I was aware that, whatever decision I made, the child's life would be significantly impacted. I accept that children should be insulated from parental conflict. However, it was clear that H. knew everything that was happening in this litigation. Furthermore, M.B.'s evidence was that her non-compliance with all temporary orders for access were the result of then 8-9 year old child's decisions.

[11] I thought it best to speak to the child in open court after delivering my oral reasons to the parties. Ms. Singh, the family service worker with the Peel Children's Aid Society ("PCAS") was the only third party working with the family at that time. As she had developed a rapport with H. I requested that she be at the court with him. I did not read the reasons for my decision to the child and he should not receive them. I simply told H. that I made my decision for a change in his residence after hearing from both his mother and his father. I said that his parents were required to follow the decision and he was expected to do so as well. The child was quiet when I spoke but when I rose to leave the court he stated that he did not want to go with his father. M.B. declined the opportunity given to her to hug and speak to her child before he left the court room with Ms. Singh and H.B. I was advised before I left the court building on June 29 that the police were attempting to assist FMF and H.B. in having the child leave with him.

[12] I made a temporary order on June 29, 2018 as follows:

TEMPORARY ORDER

1. The Applicant H.B. shall have sole legal and residential custody of the child H., born […], 2008.

2. The Applicant shall have complete authority to make decisions regarding the child's welfare. He is not required to consult with anyone before doing so. This includes the decision as to which public school H. shall attend in September 2018. The child shall not be consulted as to which school he wants to attend but the Applicant shall make the decision and communicate that decision to the child at an appropriate time.

3. The Applicant is specifically authorized to obtain any treatment and/or intervention for the child as he, in his sole discretion, deems necessary and appropriate for the child's best interests. The Applicant shall work with Dr. Shelly Polak and/or Dr. Barbara Fidler of Families Moving Forward and follow their direction and advice.

4. The Respondent having made arrangements to bring the child to this court shall leave the court premises directly after the child has attended in court with the parties to hear from the court about the decision.

5. The Applicant has the right to conceal from the Respondent the location of any interventions he seeks for the child, in order to protect the child and the intervention from intrusion, interruption and harassment.

   a) Until further order of the court the Respondent together with relatives, friends and associates of the Respondent, are prohibited from contacting the Applicant or the child. Contact and communication includes, but is not limited to face to face conversation, telephone contact, email contact, Facebook contact, Twitter contact, Skype contact, IM or text messaging contact, mail, or indirect contact through other persons by these or any other means.

   b) The only contact that the Respondent shall be permitted to have with the child is contact as specifically authorized by Families Moving Forward as part of their work with the family.

6. In order to ensure compliance with the provisions of subparagraph (6) above, the Applicant may, in his sole discretion, confiscate and prevent the children's use of cell phones, pagers, and computers, even if the Respondent has provided the equipment to the child.

7. This matter shall be adjourned to September 11, 2018 at 10:00 a.m. in court 210 for a review of the terms of this order.

8. The Court will consider the termination or variation of the non-contact Order on September 11, 2018.

9. The Applicant shall serve and file affidavits and reports from the therapist that address his reconciliation with the child, if any, and his proposal for custody and access terms in a final order. Those affidavits and reports shall be served and filed by August 29/18.

10. The Respondent M.B. shall serve and file any affidavits that address her progress in counselling and her proposal for custody and access terms in a final order. Those affidavits shall be served and filed by September 5/18.

11. Any reply affidavit shall be served by September 10 and may be filed in court on September 11.

12. On September 11 the Court will consider if the Respondent should begin having contact with the child, and if so, under what terms and conditions.

13. The Respondent is prohibited from harassing, attacking, striking, threatening, assaulting, following, stalking, or molesting the Applicant or his friends, relatives or associates. The Respondent shall not destroy personal property, disturb the peace, or keep the Applicant and the child under surveillance, or attempt to block their movements in any way. Until further Order, the Respondent, her family and friends shall stay at least 300 metres away from the Applicant's and the child's home, the Applicant's vehicle, the child's school, or any other places frequented by the Applicant and/or the child.

14. The Respondent shall arrange for a third party to deliver all of the child's belongings to the Applicant's home within 5 days of the release of this Order.

15. The Respondent shall deliver the child's health card to the Applicant forthwith.

16. Both parties shall sign any consent to release of information, as required by any intervention or treatment professionals, within 24 hours of a request being made. The children's reunification counsellor shall have full access to and be authorized to speak with any therapist for the Respondent.

Pursuant to section 36 of the Children's Law Reform Act, the police and other law enforcement agencies in this Province, including the Peel Region Police service and the O.P.P. shall enforce the terms of this Order and do all things that may be reasonably done to locate and apprehend the child if he should leave the residence of the Applicant.

H.B.'s evidence post temporary order

[13] H.B. complied with the order and filed an affidavit dated August 24, 2018. His affidavit was served upon M.B. by courier on August 25, 2018. M.B. did not respond by the September 5 deadline. M.B. did not attend court on September 11, 2018. I asked the Applicant to take the witness stand to give sworn evidence to update the court.

The transfer of residence

[14] H.B. stated that he had arranged to have H. taken to a hotel to meet with Dr. Fidler and Dr. Polak. After some period of resistance H. ultimately left the court house. Once he was finally in the car with H.B. and the therapists H. stated that he did not want to go to the hotel but rather he wanted to go to his father's home. The therapy actually began in the car on the way there.

[15] Once at the house H. willingly went inside. He stated that he wanted to talk to his father privately. The psychologists permitted this and H. and his father went to his room. H. came downstairs and alleged that his father had been yelling at him. The therapists continued to work with him. H. remained resistant for much of the evening by refusing to eat or drink. He said he was worried that he would be secretly medicated. Later that evening the therapists gave H. the choice of sleeping in a separate room or on a bed in his father's room. He chose the latter. The FMF team stayed until 10:00 p.m. that night and then arrived again at 8:00 a.m. on June 30.

[16] The next day was H.'s 10th birthday. H.B. had made plans for a party at laser tag location. Initially H. insisted that he did not want to go. Once there with all of his friends he started playing and had a good time. He told his father that it was his best birthday ever.

[17] H. stated that he wanted to call his mother and that happened, with FMF supervising, on July 3rd and 4th. Their concerns about the mother's statements during the phone calls are set out in the summary of Dr. Polak's report set out below.

[18] The multi-day intervention by FMF was concluded on July 1 and from that point on their role was to assist with the two phone calls and check in from time to time. Dr. Polak met separately and together with H. and H.B. in her office on July 11 and supervised a phone call with M.B. that day.

Contact with M.B.

[19] H.B. stated that during that July 11 call M.B. told H. not to listen to the therapists. She said to him, "I told you what to do and we prepared for this, don't you remember." There have been no calls from M.B. since July 11.

[20] H.B. brought with him to court a case note received from the PCAS pursuant to the ongoing disclosure order that had been made prior to the trial. The note was taken by child protection worker John Kotur and covered his telephone conversation with M.B. on August 10, 2018. Mr. Kotur wrote in his case note:

I called the mother to see how she was doing and to ask her what her plans are about her son. She said she is doing okay. She is praying every day. She does not want to talk to the psychologist about her son. She does not want to go to court or to fight with the husband anymore. She said she just wants peace….I encouraged her to do well. I suggested she can work with us and the psychologists if she changes her mind or decides to do that. She said she will wait until her son is older and can make his own decisions and he will come back to her. She said that they are connected emotionally and in their brains. I wished her the best and let her know to call me if she would like to talk further in the future…

[21] H.B. stated that in late August H. told him that his mother slapped him if he refused foods she wanted him to eat. H. also said that his mother slapped him after Ms. Schweitzer's observation visit when he refused M.B.'s demand that he dance for the clinician. H. said he was also slapped when Ms. Schweitzer asked him about the worst moment in his life and he did not state that it was when his father took him from his mother's home. H. also told his father that his mother punched him on his legs and once hit him in the mouth so hard that he started bleeding.

[22] H.B. stated in his affidavit that H. was relatively quiet and reserved with him for the first 3 or 4 days. After that he has acted like any normal 10 year old boy. H.B. said that his son has not acted out or thrown tantrums. Interestingly, at the beginning H. had a tendency to give his father instructions but that also ended.

[23] H. has been polite with his father's spouse B.B. and his 22 year old daughter A.B. who also reside with him. He has relaxed around them and they do things together in the home. H.B. described H.'s routine including that he had fit in well with his new school which was just across the street. He was now involved in swimming and soccer classes. H. will take an eight week course in martial arts in the summer. H. engages in many games and activities with his father. H.B. said that he and his son had resumed their close relationship as if there had been no interruption.

[24] The Peel CAS assigned a new worker John Kotur who came to the house monthly throughout the summer. H.B. understood that the PCAS file would be closed after a meeting the week of September 11.

[25] The only concerning issues related to M.B.'s attempted interaction with H. On H.'s first day of grade five at his new school a grade 6 child approached him during the recess. He said you are M.B.'s son and I am your mother's friend. You need to call your mother from the school office. The demands were repeated and the grade six student gave H. a piece of paper with his mother's number on it. The other student took H. to a phone but the adult supervising in the hall refused to let the boy force H. to call.

[26] H.B. said he was not surprised that M.B. refused to participate in the counselling. He said that M.B. dealt in extremes.

Families Moving Forward report

[27] Dr. Polak's report included the following statements. The paragraph numbering used below was not in the report as the statements were in the body of the report:

1. H. reports he has adjusted well to the custodial change.

2. H. reports and has been observed feeling happy and comfortable while in the care of his father.

3. H. admitted not knowing why he was not seeing his father in the past, given that his actual experience has, after a brief settling in experience, been positive.

4. H. remains confused about the reasons for his previous refusal to spend time with his father and the rigid negative beliefs he held about his father.

5. H. is beginning to question and critically assess whether and how his mother's behaviour have impacted upon him.

6. H. questioned, but reported being not surprised, that his mother had been unable to follow the court order. He wondered about the impact this would have on his future access visits with her, but indicated he would defer to the court and follow whatever the court determined.

7. It appeared that H. was disappointed and sad about his mother's inability to follow the court order.

8. M.B. presented with several concerning behaviours throughout the intervention and in any subsequent contact that was facilitated during after-care appointment. Throughout the multi-day intervention, M.B. asked H. whether somebody medicated him and advised H. to "not listen to the therapists…"

9. M.B. contacted the Peel Region Children's Aid Society on three different occasions between June 29 and July 4 reporting feeling concerned about H. 1) being medicated in order to be put to sleep, 2) not eating or only eating bread and cheese, 3) having difficulty going to the washroom, and 4) his overall well-being while in H.B's home with a request for a worker to physically check-in on H.

10. M.B. did not contact FMF to participate in counselling as per the provision (Paragraph 11) in Justice Clay's order.

[28] Dr. Polak noted that as FMF "is a non-evaluative entity, formulation of a comprehensive parenting plan tailored to the family's needs would not be within the purview of the FMF Clinical Team". She did make certain treatment recommendations.

Amended order

[29] After receiving further evidence on September 11 I chose to reserve my decision. I amended my temporary order to an appropriate order to be in place pending the reserve. That order read as follows:

AMENDED TEMPORARY ORDER

1. The Applicant H.B. shall have sole legal and residential custody of the child H. born […], 2008.

2. The Applicant shall have complete authority to make decisions regarding the child's welfare. He is not required to consult with anyone before doing so.

3. The Applicant is specifically authorized to obtain any treatment and/or intervention for the child as he, in his sole discretion, deems necessary and appropriate for the child's best interests.

4. The Respondent shall have no access to the child at this time.

5. This matter is adjourned to November 28/18 at 10:00 a.m. in court 201.

[30] I provided for a return date in the amended order even though I told H.B. in court that I anticipated releasing my reserved decision and final order well prior to the return date and that I would vacate the return date upon so doing. This has been a very contentious matter throughout and it is unusual for a trial to be completed in the absence of one of the litigants. I set a court date to ensure that I would have time to deal with any issue that might arise prior to my release of final reasons for judgment.

DECISION

[31] Based upon the entirety of the evidence heard I find that H.B. should have custody of the child H., born […], 2008 and M.B. should have access to the said child in the discretion of H.B. as to time, location, duration and supervision.

[32] I will now set out the reasons for my decision. It should be noted that my oral decision of June 29 addressed the evidence heard to that point that supported my decision to make a temporary change in custody during the period of the FMF intervention. I have set out above the evidence that I heard and read after June 29. I have not amended the reasons that follow to draw conclusions based on later events or to add information that I did not know on June 29. The reasons that follow effectively supported my decision to make a temporary change in custody. Those reasons together with the evidence received on September 11, set out above, will explain my final decision.

TRIAL PRIOR TO TEMPORARY ORDER

Initial evidence orders

[33] The order made at the trial management conference required that all witnesses with the exception of the parties and the clinical investigator from the Office of the Children's Lawyer shall give their direct evidence by way of affidavit and be available for cross-examination.

[34] Both parties filed document briefs and on consent the briefs were made exhibits. Each document in the briefs had been disclosed prior to the trial.

THE ISSUES

[35] Should an order be made for reintegration therapy prior to a final decision on custody?

[36] Which party should have custody of the child H., born […], 2008?

[37] What should the terms of access be to the non-custodial parent?

THE LAW

Statute

[38] The statute that governs the custody and access issues in this matter is the Children's Law Reform Act and the applicable section is s. 24 which reads in part as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Case law

[39] It was clear from H.B.'s opening statement that he sought a change in residence and an order for intensive reintegration therapy. He effectively stated that over the course of time M.B. had alienated H. from him.

Alienation

[40] The term "alienation" is a loaded one in family law cases.

[41] In Fielding v. Fielding, 2013 ONSC 5102 the Honourable M. Justice H. McKinnon qualified an expert to provide opinion testimony on theory and research pertaining to parental alienation and allowed certain portions of her generic report into evidence. Justice H. McKinnon noted at paragraph 134:

….a generic report focuses on what is parental alienation, not on what is not parental alienation….by …(receiving a report)….describing what parental alienation is, the court can, on its own, differentiate between alienation and realistic estrangement.

[42] She went on to state:

[135] Part of the generic report listed 17 alienating strategies which foster unjustified rejection of the other parent and eight behaviours displayed by an alienated child. These are derived from Dr. Baker's research with parents who, based on their reports, she concluded had been alienated as a child. Dr. Baker's opinion is that parental alienation is established if:

• there was a prior positive relationship with the targeted parent;

• there is an absence of abuse by the targeted parent;

• there is use of many of the alienating strategies; and

• the child exhibits most of the alienated child behaviours.

[136] Dr. Baker's list of 17 alienating strategies is a useful checklist of parental misconduct which may impair a child's relationship with the other parent. The strategies she includes are:

• Badmouthing;

• Limiting contact;

• Interfering with communication;

• Limiting mention and photographs of the targeted parent;

• Withdrawal of love / expressions of anger;

• Telling the child that the targeted parent does not love him or her;

• Forcing the child to choose;

• Creating the impression that the targeted parent is dangerous;

• Confiding in the child personal adult and litigation information;

• Forcing the child to reject the targeted parent;

• Asking the child to spy on the targeted parent;

• Asking the child to keep secrets from the targeted parent;

• Referring to the targeted parent by their first name;

• Referring to a step-parent as mom or dad and encouraging the child to do the same;

• Withholding medical, social, academic information from the targeted parent and keeping his/her name off the records;

• Changing the child's name to remove association with the targeted parent; and

• Cultivating dependency on self / undermining authority of the targeted parent.

[137] The difficulty with applying the generic list to a particular case, without an individualized assessment, is that interpersonal dynamics are complicated and nuanced. There are degrees and continuums of behaviour not susceptible to analysis by reference only to a checklist. Nor does the generic report account for the reality accepted by Dr. Baker; that all rejections are not due to alienation. For example, the generic report does not address any behaviours of a rejected parent that might contribute to the child's rejection.

[43] Alienation then must be distinguished from realistic estrangement. In many, if not most cases, the lack of a relationship between a parent and a child can be attributed to realistic estrangement. In those cases the child has experienced negative behaviour by a parent either towards the child or the other parent that causes the child to independently form the view that they do not wish to have a relationship with the estranged parent. In true alienation cases there is an absence of an objective reason for the child to reject the other parent.

Reintegration counselling

[44] Whether a court has the jurisdiction to make an order for reintegration counselling has been the subject of a considerable amount of case law. The Ontario Court of Appeal stated in Kaplanis v. Kaplanis, [2005] O.J. No. 275 (Ont. C.A.), at para. 14:

It may certainly be desirable for parents to take counselling on how to better parent their child and to hire a counsellor or parenting coach to resolve disputes. The order provided by the trial judge was, however, problematic. The legislation does not specifically authorize the making of an order for parental counselling and, while some trial judges have held the court has inherent jurisdiction to make a counselling order, carrying out the order requires the co-operation of the parents. There was no evidence that the parties would be able to agree on whom to appoint. There was no agreed process for the appointment of a counsellor in the event that they could not agree who should be their counsellor. Nor was there any evidence that they were willing to submit their disputes to be decided by a counsellor outside the court process envisaged under the Divorce Act and without recourse to it

[45] The real issue then is whether there is consent for reintegration counselling and whether there is a clear process that can be identified in a court order.

[46] In Barrett v. Huver 2018 CarswellOnt 8757, Justice D.C. Shaw of the SCJ addressed a request for counselling through FMF. He stated at paragraph 12:

12. Mr. Huver requests an order that the parties be required to forthwith engage the services of Families Moving Forward. Families Moving Forward describes itself in materials filed on the motion by Mr. Huver as "A Multi-Day Intervention for Separated Families When Children Resist Contact with a Parent." The materials from the organization refer to "clinicians" and "therapists" and identify Dr. Polak, Ms. Popielarczyk and Mr. Hurwitz, as members of the College of Social Workers of Ontario, and Dr. Fidler, as a member of the College of Psychologists of Ontario. Counsel for Mr. Huver describes the proposed program as family reunification therapy.

13. Mr. Huver brings his motion on the grounds that the breakdown in his relationship with Cohen, and the increasing breakdown in his relationship with Ryah is a result of Ms. Barrett's actions to systematically alienate the children from him.

[47] Justice D.C. Shaw found that reintegration counselling is applicable to a case where there has been true alienation of a child. He referenced cases that addressed how difficult that is to determine and concluded:

[17] It is impossible for me to determine on the competing, contradictory affidavits, untested by cross-examination, and in the absence of any expert evidence, the reason or reasons for the fractured relationship between Mr. Huver and Cohen, and the apparently deteriorating relationship between Mr. Huver and Ryah.

[18] On the material before me, there is no more reason to find alienation on the part of Ms. Barrett than there is to find estrangement arising out of Mr. Hover's conduct towards Ms. Barrett and the children.

[48] In the matter before this court there is a great deal of evidence including two OCL reports, that have been tested by cross-examination.

[49] The next question that Justice D.C Shaw addressed was the jurisdiction of the court to order counselling. He noted that:

[19] Mr. Huver relies on Testani v. Haughton, 2016 ONSC 5827 as authority for the proposition that the court has jurisdiction to order reunification therapy. The father in that case claimed that the mother had engaged in conduct that was alienating the child from him. The mother denied engaging in alienating behaviour. She challenged the court's jurisdiction to order counselling.

The court in Testani, at para. 9, stated that the issue of whether the Court had jurisdiction to order counselling "is not clear cut." Nowhere in the Children's Law Reform Act (the "CLRA") can specific authority to order counselling be found, except possibly by inference from sections 28 (1) (b) and (c) (vii) and 34 as an incident of custody or access. Those provide as follows,

28. (1) The court to which an application is made under section 21,

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

34. (1) Where an order is made for custody of or access to a child, a court may give such directions as it considers appropriate for the supervision of the custody or access by a person, a children's aid society or other body. R.S.O. 1990, c. C.12, s. 34 (1).

The court observed that the absence of a clear statutory basis for the jurisdiction to order counselling was discussed by Kaplanis …. (quoting the excerpt that is set out above)

[22] The court in Testani determined that it had jurisdiction to order reunification therapy, arising from the provisions of sections 24(2) and 28(1) (b) and (c)(vii) of the Children's Law Reform Act, but that caution must be exercised when considering the circumstances in which such an order would be appropriate.

[23] In my view, even if sections 24(2) and 28(1) (b) and (c)(vii) of the Children's Law Reform Act can, by inference, confer jurisdiction to order parents to attend counselling (about which I express no opinion here), Mr. Huver has not satisfied me that his request to compel counselling can be granted in the face of the statement by the Court of Appeal in Kaplanis that counselling requires the co-operation of the parents. In the instant case, Ms. Barrett rejects the proposal for family therapy intervention. As in Kaplanis, there is also no agreed process for the appointment of a counsellor nor any evidence that the parties are willing to submit their disputes to be decided by a counsellor. In my view, in light of Kaplanis, I should not grant an order compelling the parties and the children to attend counselling in the form of family intervention therapy or family reunification therapy.

[50] In the end result Justice D.C. Shaw followed Kaplanis. The absence of consent and a clear plan were the reasons for the refusal to make an order for reintegration counselling. It should be noted though that in Barrett v. Huver, as in the matter before me, the court had information from FMF that made it clear that no reintegration counselling could occur without consent.

[51] In Barrett v. Huver Justice D.C. Shaw noted that:

[24] A letter from Families Moving Forward, dated October 25, 2017, addressed to "Ms. Hoover" (sic) and counsel, states that both parents must consent to the intervention.

"Please note, consideration will only be given to the multi-day family intervention when both parties have consented and confirmed this intervention is, in principle, feasible for them, noting the consecutive number of days required and the associated costs. (Please see Fee Schedule attached.)"

[25] Both parties must complete a "Parent Referral Application Form" including questions that are described as "very personal." The parties are required to complete an "Informed Consent For Clinical Intake Consultation." The parties are also required to complete a "Multi-Day Family Therapy Intervention Agreement", in which they must agree that they and their children shall participate as per the directions of the therapists and "agree to fully cooperate, support and whole-heartedly participate in the family therapy intervention."

[26] The consent provisions are consistent with the observation in Kaplanis that any order for counselling requires the co-operation of the parents and an agreement on the counselling process.

[27] Such co-operation and agreement do not exist in this case. Ms. Barrett is not willing to sign the forms required for the proposed intervention therapy.

[52] The issue of whether a court, particularly the OCJ which is a statutory court that does not have parens patrie jurisdiction, can make an order for counselling in the absence of consent was not argued before me. In this matter both parties had consented to reintegration counselling (not with FMF) after the release of the second OCL report in October 2017. The counselling did not occur but the reasons for that did not involve a specific withdrawal of consent (though the counselling efforts were undermined by M.B.).

[53] On April 30 after reviewing the information made available about the FMF program I made an order that included the following terms:

The parties shall register the child H., born […], 2008 in the FMF program intake process such that Dr. S. Polak of the said program may determine how the said program may be able to assist the child in forming a relationship with the Applicant father so that child can have contact with the Applicant independent of the Respondent Mother.

[54] I was advised that the intake process could begin by mid-May and recommendations could be made to the parties and the court by June 27. The parties both participated in the clinical intake process and signed the consent forms.

[55] The clinical intake recommendations of Dr. Polak found that this was a case of a severe parent-child contact problems and in effect there were really only two options to be reviewed. One in which the child is placed with the rejected parent with a suspension of contact with the favoured parent, and one in which there would be no clinical or legal intervention as the short term risks of a custody change to the rejected parent outweigh long-term benefits. Outpatient therapy was not recommended for a severe parent-child contact problem.

[56] On June 29 the parties made submissions with respect to the two options made available by FMF. H.B. urged the court to make a change in residence. M.B. stated that a change in residence would be traumatic for the child. The issue before me then was not whether I had jurisdiction to make an order for counselling but whether the counselling should be accompanied by a change in residence.

Change in residence

[57] The issue of whether a court should change the residence of a child if it finds that a child has been alienated from a parent has been the subject of considerable debate and many cases. The B.C. Court of Appeal dealt with an appeal of a matter in which the trial judge had not changed a child's residence. In A(A.) v. A.(S.N.), 2007 BCCA 364, 2007 CarswellBC 1591 (CA), the court said:

25. The trial judge found it impossible to predict whether M would survive psychologically the "experiment" of changing custody in the only manner that would be available given Ms. A.'s "intransigence and determination". Certainly, he noted, great damage would be done to M if the attempt failed or if she were unable to cope with the trauma of the "forcible rupture of her relationship with her mother and grandmother". (Para. 85.) Considering that Ms. A. was not amenable to treatment and that she had "undermined and sabotaged" the attempts made during the course of the trial to re-establish the relationship between M and her father, the trial judge continued:

The court must focus carefully on M.'s best interests. The probable future damage to M. by leaving her in her mother's care must be balanced against the danger to her of forcible removal from the strongest parental connections she has. I am cognizant of the inability of the court to control and manage the chaotic day-to-day results of a forcible removal of a child from a close parental bond. I conclude that the forcible removal of M. from her mother's and her grandmother's care has a high likelihood of failure, either because M. will psychologically buckle under the enormous strain or because she will successfully resist re-integration with her father.

Considering all of the circumstances, I cannot find that it would be in M.'s best interest to be forcibly removed from her mother's care. [At paras. 87-8.]

[58] In the result, he ordered that sole custody and guardianship of M be granted to Ms. A., that the child attend regular counselling sessions until reaching age 18, and that Mr. A. have access only if M "voluntarily expresses the desire to have him exercise access."

[26] The trial judge was indeed faced with a "stark dilemma" – albeit one created largely by the custodial parent. He was obviously aware that he was required to "focus" on M's best interests. He carefully reviewed the evidence and made clear findings of fact. As has been seen, these findings militated almost exclusively against the mother's continuing as the custodial parent. Yet at the end of the day, the trial judge chose to leave M in a situation that he said would be detrimental to her in the long run and indeed had "already been detrimental to her". He found that this damage, which would almost surely continue, was preferable to making the "fundamental change" that Dr. Krywaniuk had stated was necessary. Expressing regret regarding the "inability" of the Court to manage the results of the forcible removal of the child from her mother. The trial judge deferred to a "highly manipulative" and "intransigent" parent who would clearly never permit her child to have any sort of relationship with her father.

[27] We are of the view that in so concluding, the trial judge erred in law. We agree with counsel for the appellant that the trial judge wrongly focused on the likely difficulties of a change in custody – which the only evidence on the subject indicates will be short-term and not "devastating" – and failed to give paramountcy to M.'s long-term interests. Instead, damage which is long-term and almost certain was preferred over what may be a risk, but a risk that seems necessary if M is to have a chance to develop normally in her adolescent years. As Ms. Label argued, it was a contradiction in terms, and legal error, for the trial judge to state that M will be damaged by continuing in her mother's custody, but to order that she remain in exactly that situation. The obligation of the Court to make the order it determines best represents the child's interests cannot be ousted by the insistence of an intransigent parent who is "blind" to her child's interests.

[28] While it is obvious that no court should gamble with a child's long-term psychological and emotional well-being, the trial judge's findings show that the status quo is so detrimental to M that a change must be made in this case. Although M has not been permitted to have a normal relationship with her father for two years, the expert opinion suggests she will succeed in adjusting, although the process will be difficult. In this regard, it is important to note that Mr. A. has shown sensitivity to the feelings of insecurity and anxiety M is likely to experience should he be given custody of the child. He has arranged to take a semester off work and for the two of them to become reacquainted gradually, while residing with his sister and her family for a time; for M to have a full-time female caregiver thereafter; for M to continue at the same school; and for M to have regular counselling as long as necessary. We also note that M is by all accounts a bright girl who has shown a "desire to connect with others" when she is out of her mother's control, and that the chances she will weather this change, if it is properly carried out, seem good.

Two decision dates

[59] Ultimately there were two points in this trial at which decisions needed to be made. The first was on June 29. I had to determine if H. was being alienated from H.B. and if so whether to make a temporary order for reintegration therapy in the middle of the trial. Based upon the recommended options provided by FMF a decision to order reintegration therapy effectively mean a decision to order a temporary change in residence.

[60] The second decision had to be made after receiving further evidence on September 11. At that time I had to decide what final order for custody and access was in the best interests of the child.

EVIDENCE OF THE PARTIES

Early history

[61] H.B., stated that both parties were from the rural Punjab state in India. He said that he and M.B. were first cousins but as he was quite a few years older than her and that they did not really know each other when they were young. M.B. was born with a congenital heart defect and H.B. stated that as she was not expected to live a long life she had a very sheltered childhood.

[62] H.B. said he was a good student and he graduated in 1995 from veterinary school. He married his first wife B.B. in a religious ceremony in 1995 and their daughter A.B. was born in 1997.

[63] In the year 2000, H.B. came into contact with M.B. As he had medical knowledge he undertook to try and help her get heart surgery. He was successful in getting her surgery in a nearby city and M.B. no longer has a life threatening condition. During this time of mutual support H.B. and M.B. fell in love. M.B. knew about H.B.'s spouse B.B. and his then young daughter A.B. and as a result in India they kept their romantic relationship secret while dividing their time between their respective family homes.

[64] H.B.'s spouse B.B. and daughter A.B. continued to live with H.B.'s parents even when in 2004 H.B. decided to immigrate to Canada to try and obtain work as a veterinarian. His evidence was that although he had a veterinary degree he could not get work in the Punjab state of India as he did not have any influence with the government officials who provided licences and he could not afford the "fees". When he came to Canada H.B. put on his immigration forms that he was "single" and he applied under the skilled workers category.

The parties marry

[65] In November 2005, H.B. returned to India and married M.B. He stated that he was not required to obtain a divorce from his first spouse B.B. as their marriage was religious only and not registered with the state. M.B. said she consented to the marriage. She knew that H.B.'s relationship with B.B. had broken down but she did not raise any issue with B.B. continuing to reside with her new husband's parents. In March 2006 H.B. moved back to Canada and he sponsored M.B. to immigrate. She arrived on January 1, 2007.

H.'s birth and early life

[66] H.B. stated that after M.B. joined him in Canada he found her to be a different person than he remembered. Nevertheless the parties lived together and their son H. was born on […], 2008. M.B. said the parties were both excited about having a child.

[67] M.B. said that after birth of the child she was the primary caregiver. H.B. noted that the paternal grandmother ("PGM") came to Canada to help out. H.B. said that M.B.'s behaviour towards the PGM during this time was such that the PGM returned to India after only a month. H.B. said that he had a full time job but that in the evenings and at night he helped to raise H. M.B. said H.B. was always so busy with work but conceded that when he got the chance he spent time with the child.

[68] H.B. said that after the child's birth M.B. became quite depressed and in October 2008 she said she was unable to take care of H. H.B. said with his developing career he could not help during the day. By December the parties had made a decision for M.B. to return to India with H. H.B. said that M.B. was depressed and wanted to go out in the evenings and did not want the burden of caring for an infant child. M.B. said that H.B. thought that she should take the child to India to be raised by the PGM. She said he was very stressed as he was working full time and also trying to qualify as a veterinarian in Canada. She said that while it was hard for her to take H. to India she trusted H.B.

[69] M.B. took H. to India in December 2008. M.B. said that the child was first cared for in her mother's home in India and then H. divided his time in the care of the MGM and the PGM. The fathers first spouse B.B. and his daughter A.B. were living with the PGM so effectively H. was left in their care too. M.B. said that while the PGM knew that H. was her baby B.B. and A.B. were told that he was a friend's child. M.B. returned to Canada to resume living with H.B. in Mississauga in January 2009.

Conflict and divorce

[70] H.B. claimed that from the time she first arrived in 2007 M.B. was verbally, emotionally and physically abusive to him. He said she was very melodramatic and would often scream at him. He said that he is a small man and while M.B. is not a large woman she was able to physically attack him and it was hard for him to resist without striking her which he did not want to do.

[71] In 2010, H.B. told M.B. that he wanted to divorce her so that he could bring his first wife and daughter to Canada. H.B. said he wanted his daughter to live with him. M.B. did not oppose the divorce, which she testified was as a "fake" divorce, done only to allow H.B. to sponsor B.B. and A.B. as his wife and daughter.

[72] I accept H.B.'s evidence that after H. was born he realized that he wanted a relationship with his daughter as well. By all accounts he has been a good father to her. H.B. could not sponsor A.B. without also sponsoring B.B. as she was not prepared for her daughter to move and leave her behind in India. H.B. stated that he reconciled with B.B. and he wanted to live with her. M.B. said that her relationship continued with H.B. until November 2015 and that their divorce was only to facilitate the sponsorship.

[73] The divorce was granted in 2010 with no corollary relief. After the divorce H.B. returned to India and married B.B. again, this time in a civil ceremony. In September 2011 B.B. and A.B. immigrated to Canada.

[74] M.B. said that notwithstanding the divorce and some conflict between them H.B. and herself were still a couple. M.B. stated that she had become pregnant by H.B. twice in 2011 which was after the divorce and before B.B. arrived in Canada. Her proof of this was her statement to her doctor in April 2011 which was included in the doctor's notes, that she had terminated a pregnancy and an OHIP summary showing she had had an abortion on August 20, 2011. This evidence was led to support her statement that the divorce was for sponsorship purposes and she and H.B. were still in an intimate relationship.

[75] At some point the relationship between the parties deteriorated between the time of H.'s birth and the time that H.B. left the home in November 2015. H.B. said that they were separated although still living in the same house when he was granted a divorce in 2010. M.B. maintained that they had an intimate relationship until H.B. left. She stated that while there may have been conflict (the calls to the police prove that) there was also ongoing love and affection.

[76] I find that there was conflicting evidence as to the actual separation date. There were of course no property issues involved in this Application and it is not necessary to determine an actual date. I also find that there was a great deal of conflict between the parties when H. came back to Canada in June 2011 and he lived in a very difficult, and no doubt confusing, home environment for all of the life that he can remember.

B.B. and A.B. arrive

[77] In late August 2011 B.B. and A.B. arrived in Canada. H.B. had obtained veterinary work in the Detroit area so H.B., M.B., H., B.B. and A.B. all moved to Windsor to live in one home with H.B. as the only income earner. M.B. said that she had been working before the move to Windsor but once there she was responsible for the domestic needs of the entire "blended family". She became "friends" with A.B. and drove her to high school but they later had a falling out and the relationship was never repaired. She noted that she continued to share a bedroom with H.B.

[78] Later H.B. obtained work in Hamilton so the family moved to Mississauga. H.B. said that he could not afford two houses and that is why M.B. continued to live with him even though they were divorced. He stated that he wanted to be with B.B. Not surprisingly there was significant tension and conflict between M.B. and B.B. H.B. said M.B. continued to be emotionally and physically abusive not only to him but also to B.B. and A.B. He said there was nothing he could do about it because M.B. threatened to report him to Immigration Canada with what she alleged was immigration fraud.

[79] H.B. maintained that he was not aware of Canadian law but he was nervous about being reported because of what he had stated when he first came to Canada. H.B. had said in 2004 that he was single when in fact he had undergone a religious marriage ceremony with B.B. He said he was afraid that any report by M.B. to immigration could result in the entire family being deported. M.B. produced at trial what was described as a fake death certificate that B.B. had used as part of the immigration process to prove that she was in fact a widow. H.B. denied using this document. There was no doubt that H.B.'s actions with respect to sponsoring both of his spouses to immigrate to Canada showed that some of his statements were misleading at best and he did not tell the entire truth. To be fair he may have only answered the questions asked. H.B.'s point was that M.B. used his anxiety about the status of the family to keep H.B. from physically leaving her.

The move to Brampton

[80] In 2012, H.B. opened a veterinary practice in Brampton. He still owns and operates the practice. At this time H.B. and the family were renting a home in Mississauga. In June 2013 H.B. bought a house on Colonel Frank Ching Crescent ("the Ching house"). The occupancy date was January 2014. In December 2013 B.B. and A.B. stated that they would not live under the same roof as M.B. due to her abusive behaviour towards them. H.B. said he did not know what to do. He believed at that time that 4 year old H. would have to live with his mother so he moved into the Ching house with M.B. B.B. and A.B. found a basement apartment. I find that the fact that H.B. moved in with her, and not B.B., fed into M.B.'s belief that she and H.B. had never really separated despite their divorce.

[81] According to H.B. his forced move away from B.B. did not lessen what he described as M.B.'s physical abuse of him. In fact he said it worsened. He said that H. was a witness to M.B. punching him and to her hysterical outbursts. Her repeated behaviours caused him to think that she may be suffering from a mental illness. M.B. has never been diagnosed with a mental health issue and she denied all allegations that she abused H.B.

[82] H.B. said that H. was not allowed to talk to any member of the paternal family. H.B. said that on April 19, 2015 he was speaking to his mother. He let H. talk to her for a moment. When M.B. saw him do this she became hysterical. H.B. said that M.B. said, "I will kill your son by giving him tablets". He called 911. When the police arrived he did not tell them of the death threat but the police saw M.B. in a full rage. They said he was not safe for the night and he should sleep elsewhere.

H.B. takes H.

[83] H.B. made other reports to the police about M.B.'s threatening and abusive behaviour. It appeared that he would call the police in the midst of a crisis but when they arrived he would not tell them the full details and he was told to deal with these family matters by retaining a lawyer. He finally met with a lawyer in October or November 2015.

[84] H.B. then made what turned out to be fateful decision to move out of the Ching house with H. In the first week of November 2015 he moved into the rented house on Dufford Dr. Brampton "the Dufford house" where B.B. and A.B. were then residing. He arranged to move H. there in the last week of November. This move involved changing the child's school. He said he left a note for M.B. stating that H. was with him and was safe. M.B. contacted the police to state that H.B. had kidnapped her child. The Peel Children's Aid Society attended at the house and spoke to H.B. He said he told them of the situation and the PCAS worker met privately with H. H.B. said that he arranged for H. to call his mother. H.B. said that at that time he and H. were very bonded and H. willingly came with him and was very comfortable for the few days that he lived with his father, B.B. and A.B. M.B.'s evidence was that H. was very upset by the move. She said that H. told her that "the ladies" forced him to drink milk that had poison in it. He has repeated this to everyone who has interviewed him in the course of this long litigation.

[85] H.B. said that after he moved out he received calls from the Ching neighbourhood that M.B. was staying at various neighbour's homes and was emotionally distraught. M.B. came to his animal clinic on December 1. She took his keys and hid in his car. She was very upset so he called the police. The police took M.B. to the Brampton Civic Hospital for a psychiatric evaluation. At 2:00 a.m. in the morning he got a call from that hospital that he needed to come in and pick M.B. up. He said that M.B. had no family in Canada and he felt that he had no option. He said M.B. was very upset. He took her to the Ching house. He told her he could not stay with her but he would bring H. to have a visit and then he would go home. He brought H. over but when he went to leave H. pleaded with him not to go as the child said that if we leave together my mother will not let me come back. Ultimately he left and the child stayed with his mother.

Initial access

[86] For a short time afterwards H. spent weekdays with his mother and weekends with his father. M.B. insisted on coming with H. on the weekends as she refused to let H.B. have independent time. The situation deteriorated quickly. On February 1, 2016, M.B. came to the veterinary clinic and again jumped in his car. Eventually he got her to leave but she went to the Dufford house and spoke with B.B. and A.B. She insisted on coming into the home but the police were called and she was sent home. After that the only way that H.B. could see his son was to go to the Ching home on weekends. He did that but did not stay overnight.

[87] H.B. then retained his lawyer and she sent correspondence to M.B. to try to set up an access schedule. When M.B. did not respond H.B. brought this application in March 2016. Between March and the first case conference in June H.B. would occasionally take H. to places that the child enjoyed. M.B. insisted on accompanying him and he said she was still abusive to him in front of the child.

[88] In May 2016, H.B. went to M.B.'s house. H.B.'s story is that H. opened the door. M.B. did not appear for some time. Then she came into the house from the outside. She was hysterical and she went downstairs to the basement where she picked up a can filled with gasoline and started pouring it on herself. H.B. said that he jumped on her because he saw a matchstick in her hand. He said he struggled to get the match out of her hand. H.B. recalled M.B. stating that if you want to save me you have to do what I want. It was clear that M.B. wanted him to make a "confession" of wrongdoing on her cell phone. M.B. denied that any of this occurred. I accept H.B.'s evidence that this event did occur and that fear of what M.B. might be capable of doing if she did not get her way was a factor in H.B.'s decision making throughout this custody matter.

The first court order

[89] A court order was made by the Honourable Justice S.V. Khemani on June 21, 2016. She requested that the OCL investigate and she made an order for access through Brayden Supervised Services. Two attempts were made but M.B. would not cooperate and the access did not occur. The only time that H.B. was able to see H. was if he gave in to emotional blackmail from M.B. H.B. gave some very specific examples of M.B.'s manipulation of him by using H. as leverage. M.B. denied doing this. She essentially maintained that H.B. should want to please H. by doing things as a family. She did not accept that it would be difficult for eight year old H. to spend time with his mother and father as if a separation had never happened and then have H.B. leave and return to his home.

[90] H.B. testified that at this time he spoke with H. almost every day and he could hear M.B. whispering in his ear. The only exception to this was when H.B. asked his son about school as due to M.B.'s language barrier H.B. had always been the one to help H. with school work. H.B. said that H. knew about court papers. In fact H. was translating the papers for M.B. H.B. said the child was aware of the content of letters he had written to supervised access coordinators.

First involvement of the OCL

[91] The OCL chose to become involved and appointed a clinical investigator Ms. K. Schwietzer to complete a report. The first OCL report was released on January 25, 2017. In it the clinical investigator had noted a very positive interaction between H.B. and his son in her observation visit. She found that M.B. was not supportive of the father-son relationship and she made recommendations regarding access. H.B. stated that M.B.'s anger increased after the report was released. To avoid conflict at exchanges it was arranged that H.B. would pick up H. from school. H. came towards him accompanied by a teacher. H.B. reached out to hold his hand but H. ran away from him. The principal stopped him and H. said about his father, "he's a stranger I don't know him". The principal was aware of the issues so she took the child into the office. H. refused to go with his father and after one hour of this stand-off H.B. gave up and called M.B. At another attempt at a school exchange H. insisted that he did not want to go with his father. M.B. was then observed to meet H. with a smile on her face and she hugged and kissed him.

Father-son relationship deteriorates further

[92] In February 2017, counselling was ordered for H. He went to see Dr. Huyer twice but then he refused. It appears that H. blamed his father for setting up counselling because in that two month period H. stopped calling his father. When H.B. spoke to M.B. she just said that H. is not happy with you.

[93] H.B. said that there were very few visits in this time and only with M.B. present. In March 2017 at M.B.'s house they began playing board games and puzzles. To H.B.'s surprise once H. became immersed in the games he behaved as if nothing had happened between them. This visit reminded H.B. of the good times he had had with his son prior to the end of 2015.

[94] In May 2017, H.B. made the decision to sell the Ching house. M.B. and H. were required to vacate the property in the first week of June. M.B. was very upset that H.B. had sold "her" house. H. was also very upset that H.B. had sold "his" house. H. told every professional who interviewed him that H.B. sold the "green house" where he lived. He viewed this as the ultimate betrayal of his mother and himself. M.B. testified that she had retained all of the clothes and toys that H. had ever had. She was unable to move them to her new smaller rental accommodation which was in the same neighbourhood. She felt that H.B. had not only sold H.'s house he had effectively disposed of all of his possessions.

H.B.'s plan

[95] H.B. sought custody of H. and an order that the child reside with him exclusively for three months so that he could engage with him in reintegration therapy. H.B. emailed Dr. Barbara Fidler a psychotherapist in Toronto who has as significant amount of experience in reintegration therapy. H.B. said that Dr. Fidler would not get involved until there was a court order that provided for this type of therapy. H.B. said he will take H. to the therapy and he will pay for all of the costs of same.

[96] H.B. said he would be the one who primarily cares for the child in his home. He has taken steps at his clinic to reduce his hours. The clinic is open from 8:00 a.m. to 7:00 p.m. on Monday to Friday and from 9:00 a.m. to 3:00 p.m. on Saturdays. H.B. used to work 6 days a week but on weekdays he would go in from 9:30 to 2:00 p.m. and then from 4:30 to 7:00 p.m. On December 12, 2017 he hired another doctor who works on Mondays, Wednesdays and Saturdays. This meant that H.B. does not work after 2:00 p.m. on those weeknights and he only works on the first Saturday of every month. This meant that he could take H. to school and pick him up. He would only need others to care on Tuesday and Thursday in the late afternoon/early evening and every fourth Saturday during the day.

[97] H.B. stated that his spouse B.B. works on a full time basis near in north Mississauga. She works from 3:00 p.m. to 11:00 p.m. Mondays to Fridays. H.B. said that his daughter A.B., who is now 21, can care for her brother when she is at home. He also stated that his mother comes to Canada from India every summer from May to the end of October and is available for care. To the extent that he might need other assistance H.B. was prepared to hire a "nanny" to care for H. when no family members are available. He said that this would not be a live in nanny but a caregiver with flexible hours who could come to his home.

[98] H.B. said that if H. lived with him he would move him from the public school near M.B.'s home to the public school which is very close to his home.

M.B.'s plan

[99] M.B. sought a final custody order in her favour. She maintained throughout the trial that she had never frustrated access. She said she wanted H. to have a good relationship with his father. She said that H. had made his own decision not to see his father and she did everything possible to persuade him to attend visits. M.B. said that H. had his own independent reasons for rejecting his father. She also stated that M.B. hated the "two ladies" with whom H.B. resided. Those two ladies were his spouse B.B. and his daughter A.B.

[100] M.B. had consented to counselling in the past and she said that she was prepared to attend for any counselling that was proposed. Her only qualifications were that the counsellor needed to speak Punjabi and needed to be in the Peel region so that she would be able to attend.

[101] M.B. said that H. was doing very well in school and he was very closely bonded to her. She said that in the period 2012 to 2016 he slept in his own bed in his room but after his father left H. began sleeping in her bed. M.B. said that it was totally up to H. when he starts sleeping by himself.

[102] She described her care of him. She got him up at 7:00 a.m. helped him with the morning routine, made his breakfast. At 8:00 a.m. he watches a Punjabi kids show. M.B. then took her son to school. At 11:00 a.m. she would go to his school to give him his "roti" (homemade bread) at recess. She took the roti to her son's school she said because if he took it in the morning it would get cold and he would not eat it. She then picked H. up at school at 3:00 p.m. and he would tell her about his day. From 4:30 to 5:30 three days a week H. attends tutoring classes. On Mondays he goes to swimming, on Wednesdays English classes and on Fridays from 6:30 to 8:30 he attends math classes. On Saturdays and Sundays from 11:00 a.m. to 12 noon H. attended bhangra class (Punjabi dancing) and after that mother and son would attend the Sikh temple for a service until approximately 2:00 p.m.

[103] It was evident that M.B. had devoted her entire life to H.'s care. She had registered him in age appropriate activities and fully exposed him to his Punjabi culture. H. certainly had a busy life but there was no evidence that his full schedule was anything but a positive experience for him. It was also evident though that M.B. indulged H. by bringing his hot roti to school. This evidence fit with other evidence about H. doing what he wants when he wants.

EVIDENCE OF COLLATERALS

A.B.

[104] H.B.'s 21 year old daughter filed an affidavit and was cross-examined upon it. She remembered when H. lived with her mother and herself in India for 2.5 years when she was 12-14 years old. She said that she and her mother B.B. lived with H.B., M.B. and H. from their arrival in Canada in August 2011 until tensions resulted in M.B., H.B. and H. residing elsewhere. She said she was briefly re-united with her brother in December 2015. She recalled that H. was very happy and the close relationship was rekindled.

[105] A.B. said that B.B. was a supportive caregiver to H. and before their estrangement he had a healthy relationship with her. A.B. said that neither she nor her mother B.B. had any desire to interfere in M.B.'s relationship with H. She said that both she and B.B. would welcome H. residing in their home. She said from her observations of her father he had done his utmost to see to H.'s needs and he has been heartbroken by the estrangement between them. She said that H.B. had always been a good role model and caring father to her.

[106] A.B. noted that her father bought the Ching house for the entire family. She said that M.B. made it impossible for B.B. and herself to move there. She said that M.B. became very depressed in October and November of 2013. A.B. stated that M.B. was lashing out at everyone including H. A.B. said that H.B. did not want to leave B.B. and A.B. but she and H. both overheard M.B. tell him that if she and her mother moved to the Ching house she would kill H. She stated that M.B. also threatened to kill herself if H. was not with her.

[107] I find that A.B. was a good witness. She was not shaken by cross-examination and she was clear and consistent. I have no reason to disbelieve her evidence.

D.Q.

[108] H.B. filed the affidavit of D.Q. between June 2012 and October 2018. D.Q. and her two children were co-tenants with M.B. at a residence on Lockwood Road, Brampton. She is a family support counsellor at the Brampton Multi-Cultural centre and has a background in clinical psychology. She said that she found M.B. "to be fun loving and sociable" and she "formed an impression of H. as bright and sensitive." She was said it was obvious to her that M.B. and her son were very dependent upon one another.

[109] D.Q. wrote that soon after meeting M.B. it became clear that she was preoccupied with negative feelings about H.B. She complained constantly about him to anyone who would listen. She said that on several occasions that she overheard M.B. "roundly criticizing" H.B. to someone on the phone when H. was in earshot. On more than one occasion she heard M.B. say to others in front of H. that H.B. is a shameless and insensitive man who kicked her and H. out of their house.

[110] D.Q. wrote that on July 17, 2017 she was at home when M.B. and H. left for an access visit with H.B. Suddenly H. came in to her room and said that his father was outside the house. She called M.B. and found out that she was some distance away. She tried to convince H. to leave with his father for access but he refused. Finally, she decided to misrepresent the facts. She told H. that she was leaving soon and his mother would not be back that night and he had no choice but to go on the scheduled visit with his father. At this point she said H. dramatically changed his attitude and said he was willing to leave with his father and he did so. Shortly afterwards a neighbourhood couple came to the house and "upbraided" her for letting such a "dangerous" man in the house. Right after that M.B. showed up and said she had been lying about being far away and it was a ruse to give H.B. a hard time.

[111] D.Q. said that she had seen M.B. whispering to H. when he was on the phone with his father. She had seen drawings made by H. She said they depict two teams. M.B. and H. on one team and H.B. or H.B. and Ms. Schweitzer from the OCL on the other. The teams are throwing stones at one another.

[112] On August 9, 2017, which was another scheduled access day H. returned home from attending at his father's clinic. He told D.Q. that he had thrown cat food around and ripped paper from the copier when the staff were trying to use it. D.Q. was particularly troubled by the fact that H. related this information with a smile on his face. When she mentioned this to M.B. the latter stated that it was H.B.'s fault for causing H. to resort to violence.

[113] When D.Q. recommended to M.B. that she refrain from criticizing H.B. in front of H. M.B. made it clear that she resented the advice. More than once M.B. told D.Q. that she was a fool for allowing the father of her own children to have unhampered access. D.Q. was originally asked to keep notes to help M.B. in this litigation. M.B. returned her notes with suggested changes. They included that H.B. was said to have asked her to lock H. up in his room and on another occasion that she had seen H. vomiting after access with his father. She said that these proposed amendments were not true and she refused to change her notes. She said that she had seen a video that M.B. had taken of the child vomiting in the toilet and she said she thought it was "ridiculous' for M.B. to make such a recording. Her notes with proposed changes were attached as an exhibit.

[114] Once D.Q. refused to sign the changed statement she said both M.B. and H. stopped communicating with her and H. stopped playing with her son who used to be a good friend. She said this saddened her as she had enjoyed a friendly bond with H. when they read books together. They spoke freely and she remembered H. telling her that he wanted to be a veterinarian when he grows up.

[115] The evidence in D.Q.'s affidavit was very significant. Despite a vigorous cross-examination she did not waver at all in confirming the facts set out therein. In a case where the parents disagree on most of the relevant facts and particularly in which one parent alleges that the other parent is alienating the child it is very rare to receive evidence from a witness who was a friend to the alleged alienating parent and who tried to do something to remedy what she saw as a major problem. It is to D.Q.'s credit that she agreed to file an affidavit and attend in court to be cross-examined upon it because of her legitimate concern for H.'s welfare. I accept D.Q.'s evidence as a true account of what she heard and saw.

Sharon Singh PCAS

[116] Ms. Singh has been the ongoing worker on this file since May 2017. The file had been in intake before that. The PCAS first became involved in April 2015. The file had now been continuously open since February 2016 when there were allegations of a risk of physical and emotional harm to the child. She said that H.B. contacted the Society about specific behaviours that were very concerning to him. They included the time when M.B. allegedly locked herself in his car, threatened to douse herself in gasoline and other incidents. Ms. Singh stated that the concerns about M.B. being a danger to herself or the child made in 2015 and 2016 were not verified. The concerns reported about the lack of caregiver capacity were also not verified. The concern of emotional harm due to post-separation conflict was verified.

[117] The file was transferred to ongoing status and Ms. Singh became the worker. Ms. Singh's file notes were made exhibits in the proceeding and she was available for cross-examination. I asked the OCL investigator Ms. Schweitzer to sit in on Ms. Singh's evidence so that she could be somewhat updated on what had occurred since she delivered her second report in this matter on January 21, 2017.

[118] Ms. Singh speaks Punjabi and she formed a good relationship with both M.B. and H. Unlike other professionals involved in this matter it was not her role to try and find ways for H. to have contact with his father. Ms. Singh said that when she was first involved H. was resistant to speaking to anyone. H. slowly built a rapport with her and over time he answered her questions and became more respectful towards her. Initially he just told Ms. Singh to stop talking to him. At the time of trial in April 2018 she was able to have a 15 minute conversation with him. He related to her that school was going well and he had good friends. Interestingly, he stated that he gets everything he wants.

[119] Ms. Singh had observed M.B. caring for H. She noted that M.B. did almost everything for him including wiping him after his bowel movements. When she was asked about feeding and toileting her then 9 year old son M.B. did not see anything wrong with what she did and simply said that is the way she was brought up by her parents in India. I note that M.B. had related how she was an ill child with a serious heart condition and furthermore that parenting of young children might be somewhat different in India where she was raised. Nevertheless Ms. Singh was concerned enough to refer M.B. to a parenting program to learn age appropriate boundaries. Although M.B. took a course related to parenting for independence as a child grows older, Ms. Singh did not think that the sessions had changed her parenting.

[120] M.B. appeared to have considered Ms. Singh as an ally so she spoke to her frequently and revealingly. H. also spoke freely to her. Ms. Singh noted that M.B. told her that H. had to give his toys away when his father sold their house. H. told her that he does not want to see his dad because his father sold the house. Ms. Singh's notes in the spring of 2018 show how entrenched H.'s views had become and illustrated that at this point M.B. may not be able to do anything about restoring access even if she really wanted to do so.

[121] On the March 29, 2018 monthly home visit H. said that his mother will only buy him toys if he goes to see his father. He added that she said that she does everything for him so he should at least go and see his father. At the April 19 visit H. stated that if his father wants to see him so much then why did he not live with him and his mother. H. added that he wished "the whole thing stopped". H.'s solution was that H.B. should come and live with his mother and himself. He stated that by asking him to see his father he is being "annoyed" by his mother and he wanted that to stop.

[122] Ms. Singh stated that H. seemed to view her as his counsellor. He has said that he is fine where he is and that people should listen to him. H. said that he had a right to do what he wanted. Ms. Singh responded to that by reminding him that he is a child and his parents need to make important decisions for him.

[123] Ms. Singh said that H. presented to her as developmentally normal. His school reports and EQAO assessment show that he is a bright student. The PCAS worker said that she had never seen any resistance to parental contact like the resistance that H. showed.

[124] Ms. Singh did make counselling referrals when requested to do so. On September 11, 2017 M.B. was referred to Dr. Nita David. The referral form referred to M.B.'s need for assistance in managing depression and histrionic behaviours. Ms. Singh conceded that M.B. had no formal diagnosis of an emotional or mental health disorder. After two sessions Dr. David recommended more specialized services. M.B. saw a counsellor Mr. Thakhur Lamsall. He met with M.B. on a number of occasions. He then referred her to the South Asian Welcome Centre where M.B. saw a counsellor for two sessions. Ms. Singh related that M.B. was referred to the Better Family Services program through Punjabi Community Health Services on December 13, 2017 and she completed a parenting program. On January 23, 2018 she registered for the SAHARA parenting program there. Ms. Singh said that M.B. had attended this program four times in the early spring of 2018.

[125] Ms. Singh was aware that H. had seen a registered psychotherapist Ms. Huyer on two occasions and she noted that this was addressed in the OCL report.

[126] Ms. Singh said that M.B. called her frequently about her issues. M.B. told her whenever she went to the doctor and she would call her to state that she was feeling very stressed. In fact M.B. called her almost every day, usually for not a very significant reason. Ms. Singh was concerned when she found M.B. lying to H.'s teacher and to H. about H.B. purchasing Wonderland tickets for H. She related other examples in which M.B. had lied to H. about him going with his Dad somewhere. In that way when H.B. ultimately declined to accompany both M.B. and H. (because she insisted on going along) H. would again feel let down by his father who had in his mind reneged on a promise.

[127] Ms. Singh said that there was some modest change in M.B. after her counselling with Mr. Lamsal and Dr. David. She said that M.B. cried less when she called her almost every day. Ms. Singh was adamant that the child's behaviour had not changed since May 2017 when she first became involved. The PCAS worker said that H. consistently refused to attend access visits with his father. H. told her in private meetings that his mother tells him to see his father but he tells her he does not want to go. The child insisted that not going on visits was his decision not his mother's.

[128] Ms. Singh said that H.B. had maintained for some time that he had done his research and what was required was a specialized reintegration counsellor.

Kelly Schweitzer

[129] Ms. Schweitzer was the clinical investigator for the OCL. She was appointed on July 29, 2016. The report from her first investigation was delayed by different factors but it was released on January 25, 2017.

Observation visit

[130] Perhaps the most significant evidence of what became the first report of the OCL was Ms. Schweitzer's description of her observation of interaction between H.B. and his son. The investigator was required to take the unusual step of going to M.B.'s house for this visit because the child refused to go to his father's home. When the clinician told H. that he would be meeting with his father he replied, "I don't really want to". When H.B. arrived he went to greet him. They then sat beside each other in the living room. M.B. and another tenant Mr. Bh. sat at the kitchen table. H. brought out his Pokemon cards at his father's request. H.B. asked his son questions about his cards and H. provided a detailed commentary. Ms. Schweitzer noted at page 11 of the report:

H. was expressive in his conversation with his father. H. laughed, smiled and used hand gestures as he and his father discussed the cards. After H. and his father finished playing with the Pokemon cards this clinician quietly asked… M.B. and Ms. Bh…to leave the main floor of the house. H. did not appear to notice and/or have a response to his mother and/or Ms. Bh. leaving the room as he continued playing with his father.

[131] Ms. Schweitzer then noted that once they were finished playing with the cards H.B. reviewed H.'s school agenda with him and they talked about a project he was doing. The clinician wrote:

H.B…. commented that H. got a "good" on responsibility and independent work at school. When H.B. offered H. a high five, H. gave one back. H.B… gently squeezed H.'s chin with his hand and H. smiled at his father. They discussed how H. helped out a special needs student in his class last year. H. smiled at his father when H.B. commented on how well H. did.

[132] Ms. Schweitzer then went on to record all of the other activities H. and his father engaged in during the visit. They sat closely together with knees touching and they laughed and talked as they played. When M.B. returned to the kitchen H. did not even acknowledge her presence or interrupt his play.

[133] Near the end of the visit the clinician asked H. what he would need in order to feel comfortable spending time with his father away from his mother. H. reported that he felt "shy" about doing so. Most significantly Ms. Schweitzer noted the following comment from H.:

He said if he did not go alone with his dad, then his mom and dad would reunite. When this clinician indicated that his mom and dad would not be getting back together again, H. said that he would wait until he grows up.

[134] At page 13 of her report Ms. Schweitzer said that even though she had told M.B. it was inappropriate for her to describe the clinician as her friend she introduced her to H. in that way. She said that M.B. brought adult topics of conversation up in front of H. When asked not to do so M.B. just turned to H. and said "go away" while continuing to talk in this way when H. was still in the room.

Interview with H.

[135] The clinician interviewed H. privately on two occasions. He stated that one day his Dad "stole" him. H. said he pretended it was fun at his father's house because he did not want his Dad to feel bad. She also noted that H. said that his mother tells him to go with his father but she is "faking". She tells him to go and then says do not go. At page 14 Ms. Schweitzer said:

H. reported that he cannot leave his mom because it is not good for his mom and dad to be separated. He feels sad that his parents are separated and nothing will help those feelings unless his mom comes on visits with his dad too.

[136] The second interview was a couple of days after the observation visit referred to above. H. began by saying, "To be honest I don't even like my dad". When Ms. Schweitzer reminded him of their playing and hugging at the visit H. said he was testing his dad to see if he liked him and wanted to play. He said that his father did not like him much because he did not play very much. He even denied hugging his father at the end of the visit.

[137] In her summary at page 18 Ms. Schweitzer refers to research by Fidler. Bala and Saini (2013) that suggested that:

Irrespective of the cause when situations of resistance to contact with a parent arise both parents and the child must be assessed to determine the various precipitating, perpetuating and protective factors that in turn will inform the appropriate clinical legal and judicial responses.

[138] The clinician then made a number of observations about those factors in this particular case. I find that the factors she identified were supported by the evidence at this trial.

[139] Ms. Schweitzer made recommendations in her January 25, 2017 report. She said that:

M.B. needs to participate in professional, culturally competent counselling in order to receive support regarding her separation from H.B. and to learn how to support H. in maintaining this relationship with his father, step-mother and step-sister…

H. needs to receive professional, culturally competent counselling with a therapist who has experience with parental separation/divorce, blended family issues as well as attachment issues.

H.B. needs to engage in professional, culturally competent counselling in order to gain insight and sensitivity into the mother/child relationship and to broaden his understanding of the impact of this very significant change on M.B.s life rather than trying to dismiss her emotional responses as mental illness.

Recommendations

[140] Ms. Schweitzer said that it was important for H. to receive therapeutic help as soon as possible for the above noted reasons. She noted that the success of any therapy will be dependent on M.B.'s willingness and capacity to address her own issues. She said in January 2017 that if improvements are not observed within a short period of time it will be important to make a different plan. Ms. Schweitzer went on to write:

Given M.B.'s current refusal to participate in the parent sharing process it may be prudent to consider a change in H.'s residence prior to final OCL recommendations being made. Although it is premature for the OCL to make final recommendations regarding the custody and access of H. it is evident that H.B. and M.B. should be striving toward a parent sharing schedule that will eventually include H. sharing more time equal time with his parents.

No progress

[141] The evidence was that counselling either did not happen or was not successful. H. met with Ms. Gurjeet Hayer on two occasions only. M.B. did receive some individual counselling but Ms. Singh noted that it made very little difference. H.B. saw a psychologist Dr. De. Akram-Pall. Despite many court orders there was no independent access between H.B. and his son.

The updating investigation

[142] The OCL became re-involved with the family in July 2017. This led to Ms. Schweitzer's report of October 5, 2017. In the report the clinician noted the frustration that everyone involved felt with the lack of progress. She scheduled an observation visit with H. at H.B.'s home. After his mother pulled into the driveway H. refused to exit the car. Eventually he got out but he refused to go into the home. H.B. was said to have spoken to H. in a quiet soft voice about going into the house to play. H. said he wanted his father to take him home. When his father again asked him to come in the house H. said, "No" and hit his father with an open hand and told him in a stern voice to take him home. As the stand-off continued H. said "everyone" was lying to him and he hit his father again. Ms. Schweitzer wrote at page 10 of her report:

H.B. gently held H.'s arms when H. began to hit him more aggressively. When H.B. let H.'s hands go H. picked up a large rock and threatened to throw it at H.B.'s car. H.B. directed H. to put down the rock. H. demanded that his father take him home. After a few more minutes H. threw the rock down with extreme force.

[143] H. then told the clinician that he would run away if his father did not take him home. H.B. remained calm throughout gently redirecting his son back when he started to walk away. After an hour the clinician had to leave with H.B. and his son still standing on the sidewalk.

Attempted interview with H.

[144] Ms. Schweitzer tried to interview H. at his school but H. said he did not want to talk to her. He said the clinician was "bossy' for trying to get him to see his father. H. walked out on Ms. Schweitzer terminating the attempted interview.

[145] Ms. Schweitzer concluded that despite M.B.'s statements that she wanted H. to see H.B., "it is relatively easy to see that M.B. has involved H. in her efforts to build a wall between herself and H.B." She notes at page 12 of her report that M.B. claims that H. is rejecting his father because he is so harmed by H.B.'s behaviour. She said:

The trouble with this characterization is that there is no evidence of mistreatment or abuse by H.B. toward his son that could in any way justify H.'s resistance and rejection. There is no reasonable explanation for how a nine year old boy who unwittingly demonstrated caring feelings for his father when he is able would reject him unless he was being coached to do so. It is also possible that H. is telling his story of stress through his acting out behaviour.

[146] Ms. Schweitzer also commented on the power imbalance that had developed in the parent-child relationships. The clinician noted that M.B. has "little ability to establish appropriate parent-child boundaries and as such H. has an inappropriate amount of control in their relationship."

Recommendation for case manager

[147] At the conclusion of her October 5, 2017 report (at page 19) Ms. Schweitzer made the following recommendations:

1. M.B. and H.B. will participate in therapy with a culturally competent therapist who has experience in situations of child resistant to contact post separation. They will meet with the therapist as required and follow their treatment recommendations.

2. H. will participate in play therapy with a culturally competent therapist who has experience in attachment and separation and divorce. H.'s therapy will not focus on reintegration. Such work will be completed by the therapist involved with M.B. and H.B. and will be led by the case manager involved with the family.

3. The Peel Children's Aid Society will receive a copy of the OCL's report.

[148] Ms. Schweitzer said in her oral evidence that given their historical involvement in this matter and their verification of emotional harm to the child she anticipated that the Society could be the case manager she referred to her second recommendation. She said that Ms. Singh's work with the family and her rapport with H. meant that continuing Society involvement would be very helpful.

Reintegration therapy?

[149] When asked specifically about the possibility of reintegration therapy the clinician said that if the right modality is chosen and the parties comply with the order that it could be successful. She said it will take time as H. feels he will lose his mother if he has a relationship with his father.

[150] Ms. Schweitzer noted that there was no solution to this severe resistance problem that did not have major risks. She said that she had grave concerns for H. if he was forced to live with his father. H. at nearly 10 years old was a somewhat sheltered child. He was not worldly. He lived in a big city and if he decided to try and run from his father's house to his mother's house he would put himself at serious risk of harm. It was for this reason that the she felt that the PCAS needed to remain involved. They might need to determine the level of risk involved if he was moved from one home to the other and be prepared to intervene even if that meant foster care.

[151] Ms. Schweitzer readily conceded that it is quite possible that a change in residence would not work and could further damage the family. On the other hand the clinician said that if nothing is done H. will remain an emotionally damaged child and this will likely have life-long consequences for him. To this point H. has his school as a place of safety where he does well academically and has friends. Ms. Schweitzer said that this was likely to change as H.'s resistance to all authority had worsened dramatically just in the period between her two reports in 2017. The clinician also referenced literature that stated that the impact of alienation from a parent during childhood can mean that when he becomes an adult the child will have difficulty in forming and maintaining close relationships with others.

Placement with father?

[152] Ultimately Ms. Schweitzer said that the only way forward could be placement with his father for a period of time. In that time an expert therapist could work with the family during the period of the interruption of contact with M.B. Her reservation in making that a firm recommendation in her report was her concern with respect to the safety of the child if he should attempt to run and her concern with the emotional well-being of M.B. who had already expressed thoughts of self-harm or suicidal ideation when she had become highly stressed. Ms. Schweitzer said that a residence change could only be made if there were major supports in place for both the child and M.B.

Second OCL report to trial

[153] The evidence was that at after the OCL report was delivered both parents were represented by counsel. Mr. Ludmer acted for H.B. and Ms. Virk for M.B. The evidence was that counsel had extensive discussions at court on Oct. 18, 2017 and they agreed that the recommendation for counselling should be accepted but the type of counselling should be reintegration counselling. At this time of course counsel only had the report, there had been no disclosure meeting in advance and so they did not have the benefit of Ms. Schweitzer's expansion of her concerns about such therapy. The parties, through counsel, agreed upon a therapist in Toronto (not FMF). M.B. did not attend for the intake appointment. She had reasons for missing it; she was ill with a kidney stone, she said she had no transportation and she was uncomfortable going to a non-Punjabi speaking therapist. The illness was understandable but the transportation and interpretation issues could have been remedied with some notice and organization. No further attempt at reintegration counselling was made before trial.

[154] H. was not referred to a play therapist and did not get any further counselling of any type prior to trial. From the evidence it could be inferred that he would have resisted any counselling designed to improve his relationship with his father. The difficulty is H. did not even have an opportunity to talk about his life with a neutral third party-that is probably why he viewed Ms. Singh as his counsellor.

[155] As a trial drew closer Ms. Virk got off the record as M.B.'s counsel in the OCJ matter. M.B. had counsel Mr. Sandhu to represent her with respect to the support and property issues in the SCJ. Just prior to trial M.B. retained Ms. Menon. H.B. decided to retain Mr. Ludmer for the SCJ file and to represent himself in the custody/access matters in the OCJ. The end result of all of this was that there was no communication between the parties about implementation of the OCL recommendations in the period prior to the trial.

ANALYSIS

The "blended" family

[156] It is trite to observe that human relationships can be very complex and that in the pursuit of love good people can make decisions that can be perceived as cruel and heartless by the person who feels rejected. H.B. made a decision sometime between 2007 and 2015 to end his relationship with M.B. and renew his relationship with his first (and third) spouse B.B. There is no doubt that H.B. had a strong motive to divorce M.B. and remarry B.B. (this time in a civil ceremony in India). His primary goal in 2010 was to have his daughter A.B. join him in Canada.

[157] Decisions to end relationships when children are involved are often made over the course of time not at one discrete moment. H.B. may well have decided by the late summer of 2011, or long before, that he wanted to end his relationship with M.B. He may well have communicated this to M.B. He knew or should have known, that M.B. would not accept that their marriage was over if he continued to live with her. He claimed that he was manipulated by M.B. to have her share his bedroom and then his entire house once B.B. did not move to the new house he purchased. He may have chosen the path of least resistance. He had both of his children with him and he was very busy building a veterinary practice. It appeared that H.B. just convinced himself that he was acting rationally and that M.B.'s very emotional reaction to sharing her life with his first wife and child was completely irrational.

[158] It is not difficult to see why M.B. resented B.B. Prior to her arrival with A.B., M.B. had the life she wanted with her husband and child. It was very clear in the evidence of both parties that M.B. wanted to end H.B.'s relationship with B.B. and to force H.B. to reject B.B. and live exclusively with H. and herself. It was no doubt very difficult for H.B.'s two "wives" to live with each other. It appeared that H.B. thought that as he was supporting his wives and his children that there should be no problem. In this he may have been quite naïve.

[159] M.B. was determined to return to the pre-August 2011 situation in which she and H.B. just lived with their son. Over time H. became M.B.'s ally in this pursuit to the point where H.'s negative views of H.B. became more extreme than the views of M.B. H. came to hate B.B. and A.B. for what he perceived as their role in ruining his life and his mother's life.

Access efforts

[160] It is clear from all of the evidence that H.'s views about his father changed from the time of the first OCL report on January 25, 2017 to the time of the second report released October 5, 2017. It is also clear that H. had become increasingly angry with his mother. At the time of the first report Ms. Schweitzer noted from the father-son observation visit that H. was very comfortable interacting with his father, was physically affectionate with him and expressed that he did not want his father to leave.

[161] In the period between the two reports there were a number of attempts at access. While the orders were made on consent the access itself failed on every occasion. M.B. stated that she wanted her son to have a relationship with his father but her son received a different message. H. noted that his mother was "faking" it when she said she wanted him to see his father. He said that his mother always told him to go but he knew that she was pleased that he did not attend.

[162] From the time H.B. took H. from M.B.'s home on November 26, 2015 for four days the only time that H. has had extended time with his father was when H.B. complied with M.B.'s insistence that all access must be in her presence. This began with H.B. moving back into the family home when he returned H. on December 1, 2015.

[163] The evidence from H.B. and the PCAS notes, as set out in the OCL report, was that H. was not upset when his father took him to the residence he shared with B.B. and A.B. A PCAS worker saw him there and the child reported that he was fine. H.B. knew that he had to let M.B. see the child so he brought him to her home. M.B. made it clear that H.B. would not see the child without her being there so H.B. temporarily moved back into the home. This was the beginning of the messaging to H. that M.B. would not permit H.B. to break up the family. As recently as April 19, 2018 H. expressed to the PCAS worker Ms. Singh that he wanted his mother and father to live together. The message the child received at the time of the separation and the message that was reinforced by M.B. at every opportunity since, was that the only way the child could have a relationship with his father was if the parents reconciled.

H.'s dilemma

[164] It is quite understandable why H. might have feelings of insecurity. He has stated that he was on his "mother's team" and that his father, B.B. and A.B. are on a different team. He has internalized that he has to make a choice. His mother has not given him the opportunity to have an independent relationship with his father. If he chooses such a relationship the implication is that he will lose his relationship with his mother. H. was aware of this when he was only eight years old. He said to his father on December 1, 2015 that if I leave my mother's home with you she will never let me come back.

[165] At this time M.B. was not working outside the home and she wanted to provide for H.'s every need. H. had an interdependent relationship with her that he did not want to lose so he chose to be on his mother's team. He has internalized this dichotomy to the point where he cannot now even consider being with his father even when his mother tells him to visit. The evidence is that H. does not believe his mother wants him to visit even when she says she does. He feels compelled to do what he thinks she really wants not what she says she wants.

[166] H. may resent that he has been put in this position. It is noteworthy that as early as the mother-son observation for the second OCL report H. had started resisting his mother's direction. He was rude to his mother and to Ms. Schweitzer. He has said that no one is the boss of him. To this point that oppositional, defiant behaviour has not manifested itself in school but as Ms. Schweitzer observed in her testimony it is only a matter of time before its impact is felt there as well as in his other relationships.

The lost years

[167] It is very concerning that the OCL recommendations were not implemented. After the first report both H.B. and M.B. obtained individual counselling and H. was referred to a counsellor Ms. Hayer. Unfortunately the child was so resistant to counselling that Ms. Hayer stopped it after two sessions. She told Ms. Singh that a different kind of counselling might be more effective and she mentioned play therapy.

[168] After receiving the first OCL report Justice S.V. Khemani, the case management justice for this file, made a report of emotional harm of the child to the PCAS. That agency had been involved with the family on other occasions since 2015 but had closed the file. In February 2016 they opened the file again. They verified a child protection concern of emotional harm to a child based upon post separation conflict between the parties.

[169] Ms. Singh stated in her evidence that the Society received a copy of both OCL reports and a copy of Dr. David's report. It was clear that both professionals were in agreement that reintegration counselling should be considered. Ms. Singh conceded that the Society took no steps to refer the parents to such a therapist. Ms. Schweitzer's report specifically stated that PCAS may be able to be of assistance in making a referral to a "culturally competent" therapist. Ms. Schweitzer made it clear in her evidence that she had envisaged the Society being the case manager that would ensure that counselling was in place and that the parent's counsellor could communicate with the child's counsellor.

[170] Dr. Hayer first recommended that H. engage in play therapy after the first report in January 2017 when she decided to end her counselling relationship with the child after two sessions. The PCAS were aware of the recommendation for counselling. The PCAS did not facilitate counselling for the child and neither party arranged it. Ms. Singh effectively said that after October 2017 H.B. took the position that he wanted himself and the child involved in reintegration therapy with a specialist. M.B.'s own therapist Dr. David had recommended specialized therapy. The Society may well have thought that the parents should be organizing this but the fact remains that the PCAS had opened a file based upon emotional harm to a child and having done so there was an obligation upon the Society to take steps to address this emotional harm.

[171] During the time Ms. Singh was involved, which was after May 2017, the child's resistance to seeing his father worsened. I do not blame Ms. Singh personally for this. All of the notes indicate that Ms. Singh showed insight into the issues involved and that she provided sound and helpful advice to the parties. I understand that an individual case worker has supervisors and that major decisions as to the Society's direction on a file are made after planning meetings which involve a number of individuals. My concern is with the Society's decision to rely on the parents to follow through with counselling for the child. M.B. thought that there was no reason for counselling. H.B. felt that reintegration therapy was the only step that might re-unite him with his son but the only attempt at such therapy ended when M.B. did not attend the intake session.

[172] I understand that the Society's mandate is to protect children from harm not to make decisions about the amount of contact each parent should have with a child. In this case though the Society verified emotional harm based upon post separation conflict. The PCAS was aware that the child refused to see H.B. and that this was the source of the conflict and the emotional harm. The Society received two detailed OCL reports which reported the emotional harm and in the case of the October 5, 2017 the report specifically requested the Society's assistance. The records show that what the Society did was make a referral for general individual counselling for M.B.

[173] Without any counselling H.'s behaviour worsened significantly during the time of Society involvement. When the file was opened again in February 2016 (there had been other openings in 2015 that had been closed due to non-verification) the child was completely resistant to seeing his father but he was close to and very dependent upon his mother. By the summer of 2017 he had become resistant to his mother's authority and resistant to the involvement of the OCL. He said he did not trust his mother, he refused to follow her instructions and he proclaimed that "nobody was the boss of him". The evidence of Ms. Schweitzer at the trial was that this rejection of his mother's parenting authority was due to H.'s tremendous insecurities. He does not know who to trust so he now does not trust anyone. Ms. Schweitzer said that it was only a matter of time before this rejection of authority manifested itself in school and in the other spheres of his life.

[174] In short, since February 2017, H. has gone from being a nice, sensitive child who simply refused to see his father to a confused angry boy who cannot trust anyone. Against this background the Society decision, as expressed by Ms. Singh at the trial, to close the file if H. resided with his mother is inexplicable. This child clearly still suffers from emotional harm created by the parenting that he has received. This is not a typical case where the parents yell at each other in the child's presence or could potentially be involved in a physical confrontation. The damage being done by M.B.'s inability to assert any control over her son and the child's totally irrational rejection of a parent with whom he enjoyed a close and loving relationship as recently as February 2016 has and continues to create emotional harm. I cannot order the Society to remain involved but it is apparent to me that if a custody change does not occur they will be involved with this family either on a continuing ongoing basis to support the child in M.B.'s care or on an emergency intake basis when the risks apparent in this case become acute.

[175] I understand that the Society was well aware that H. resisted all efforts at contact with his father and said that he did not want to attend counselling. It is informative though that the contact that H. did not resist was when his father agreed, albeit reluctantly, to spend time with him and his mother at their home. Ms. Singh's clinical note of April 19, 2018 is very instructive. H. made it clear that if his father loved him he would not have left his mother and himself. H. may still harbour reconciliation fantasies. Certainly as at the close of the evidence on June 29, 2018 he saw himself as being on his mother's team with his father on another team with his spouse and adult daughter. It is true that counselling does not generally work if a party does not want it to work. However H. is not an adult, nor is he a teenager with an independent mind. H. became ten years old on June 30. The evidence was overwhelming that the views that he holds about his father are the product of his mother's statements and manipulations.

Alienation

[176] I find that there is clear and compelling evidence that H. has been alienated from his father by his mother. I accept the definition of alienation set out in Fielding (supra).

[177] There was a prior positive relationship with the targeted parent. M.B. herself stated that the father son relationship was very positive prior to the father taking H. out of her home in November 2015. Ms. Schweitzer noted the very positive interaction between father and son in her first observation visit.

[178] There was no evidence that H.B. had ever abused H. verbally, physically or emotionally. Even M.B. testified that the "harm" that H.B. caused to his son was his leaving their relationship and ultimately selling the home to which the child had become attached.

[179] M.B. used almost all of the alienating strategies available to her that were referred to in Fielding. It is unnecessary to summarize them all here. M.B.'s actions with respect to the father-son relationship are easily matched with one or more of the alienating strategies referred to in Fielding.

[180] I have set out below the consequences of the alienating behaviour not only on the father-son relationship but upon H.'s behaviours in general.

Behavioural concerns

[181] The evidence established that as time went on H.'s lack of access to his father was not the only concerning issue. H. had become angry and confused and distrustful of all authority. He needed help and it was clear that he would not receive it from his mother. M.B. lacked the capacity to parent effectively. This may be due in part to the parenting she received from her own parents. Her heart condition was such that she was not expected to live long and she was treated as a very young and dependent child well into her teen years. She has applied this parenting approach to H. She attends to her ten year old son's every need including toileting and feeding him. She does not impose any limits on her son. There was evidence that she sat on the floor and had other adults do so when H.'s toys took up all of the space on the couch. She allowed H. to make all of the decisions as to whether he saw his father or not. She encouraged his reconciliation fantasies by only agreeing to access if she could be present. By the time of trial she had lost all parental control over H. and he was rude to her and rude to Ms. Schweitzer.

[182] I accept Ms. Schweitzer's evidence that H.'s anger and confusion will extend to other spheres of his life. To this point he has been an excellent student but the clinician feared that without something being done to address the problem H. would resent authority at school and act out in ways that would impact upon his education.

Conclusion

[183] I find that all efforts made to this point to order and enforce access have failed because they have been undermined by the mother's manipulation of H. There is no possibility of an improvement in the father-son relationship without intensive reintegration therapy. I find that such therapy will not work if H. remains living with his mother while the therapy is being undertaken.

[184] I note that the OCL clinician Ms. Schweitzer effectively came to the same conclusion with respect to a father-son reconciliation. I am mindful of the concerns she expressed with respect to a possible change in residence. She correctly stated that H. was a rather sheltered boy who was not street smart. He lived in a big city. He would likely try to run away from his father and he would be very vulnerable at that point.

[185] Ms. Schweitzer also expressed concern about the impact of a residence change upon the mother's fragile emotional state. She noted that there had been past attempts at self-harm. M.B. had said that H. was her entire life. M.B. had no family in Canada, she was not employed, and she did not have any counselling support., Ms. Schweitzer stated that while she thought a residence change during reintegration therapy was the best way to proceed she had been unable to make that recommendation due to her concerns for the emotional and physical safety of H. and M.B.

[186] The factual situation in this case is very similar to the one that the trial judge faced in A(A.) v. A.(S.N.) supra. The B.C. Court of Appeal found that the trial judge erred in refusing to change custody and not taking steps to address the alienation.

[187] I find that this is the last clear opportunity to try to make a positive change in H.'s life. He is about to turn ten years old. He had a close and affectionate meeting with his father before the first OCL report. There are no objective reasons for him to fear his father. H.B. had shown tremendous patience and forbearance through what must have been an agonizingly painful period in his life. Throughout his evidence H.B. displayed a sensitivity to H.'s predicament. He never became angry with his son. He demonstrated an ability to put the child's needs ahead of his own needs and was open to all attempts to try and establish an access relationship. In short he had done all that could be done. In a very emotional submission on June 29 H.B. said that if a change in residence with reintegration therapy did not work he would abandon his efforts to have a relationship with his child until H. became an adult.

[188] I find that given this constellation of factors that I have no choice but to make a change in residence to allow for an intensive program of therapy to be done by FMF. The possible benefits of successful therapy far outweigh the risks involved. I am concerned about M.B.'s emotional well-being. I note though that the evidence was that she was well connected to a tight circle of friends in her neighbourhood who were well aware of this trial and the issues involved. I also heed the words of the B.C.C.A. in A(A.) v. A.(S.N.) with respect to the paramountcy of the interests of the child over the interests of a parent.

FINAL SUMMARY

[189] As noted above I made the order to change H.'s residence to H.B.'s home and to prohibit contact by M.B. unless specifically authorized by FMF. I then adjourned to September 11, 2018 and received further evidence. That evidence and the report of Dr. S. Polak of FMF was set out above.

[190] On September 11 H.B. requested that the court grant him custody of H. and order supervised access to M.B. He also sought documents and a travel order. It is clear to me from all of the evidence that H.B. should have custody of H. I have reviewed all of the factors set out in s. 24 (2) of the CLRA, and find the following ones to be most applicable to the facts of this case.

The love, affection and emotional ties between the child and his father

[191] The father and son relationship has been restored to one of mutual love and affection. H. now respects his father. H. has also been reunited with his adult sister A.B. H. is understandably both confused and angry about his mother's actions over the last few years. I find M.B. was unable to put the child's need over her own needs. She intentionally denied the child a relationship with his father to attempt to manipulate H.B. into leaving B.B. and A.B. She did this either to force H.B. to reconcile with her and/or to punish H.B. for choosing B.B. over her.

The child's views and preferences

[192] Prior to the change in residence and the intensive therapy provided by FMF the child's views were the product of his mother's unrelenting manipulation of him. Over the course of the summer H. has become very comfortable in his father's home and wishes to continue to reside there. He has developed some insight into what happened to him and he is understandably confused and angry.

The ability of each person applying for custody of or access to the child to act as a parent

[193] M.B. was able to provide for H.'s instrumental needs. She clearly loves her son and provided him with a great deal of affection. Against that though she seemed not to understand that an important part of a parent's role is to encourage their children's independence and to set age appropriate limits on their behaviour. For whatever reason M.B. treated her son like a young child by providing for his every need from toileting him, to feeding him, to allowing him to sleep in her bed for as long as he wants to. At the same time she was completely unable to set any limits on his behaviour. There was evidence that H. had become rude with M.B. and with other adults who tried to impose limits on his behaviour.

[194] H.B. was also able to provide for H.'s instrumental needs and he was also loving and affectionate with him. By way of contrast with M.B. he was able to encourage his son's intellectual and emotional growth. He challenged his son and supported him as needed. H. has come to respect his father and has settled well into a routine. H.B. has consistently shown an ability to put H.'s needs ahead of his own needs.

Access

[195] An unfortunate, but perhaps inevitable consequence, of the successful reintegration therapy was that M.B. refused to cooperate past the intake process and she has no ongoing contact with H. M.B. made H. feel that he had to choose teams. He understood as early as December 2015 that if he spent time with his father he could lose the love and affection of his mother. Tragically this little boy was right. When I stated that M.B. could hug and speak to her son prior to him leaving court with his father, M.B. turned away from him and walked out. She has refused to speak to him while he lives with his father and while her statements to him could be overhead. She tried to have others pressure him into calling her so she could continue to try to manipulate him. She told Mr. Kotur of the PCAS that she would not try and have contact with him and would wait for him to return to her once he was older.

[196] Both the OCL clinician and the FMF psychologists have provided well-reasoned recommendations to address M.B.'s intransigence and to try and help her understand what she had done to her son. She has largely ignored or undermined the recommendations.

Terms of a final order

[197] I will not set out pre-conditions for the resumption of M.B.'s contact with her son. Based upon all of the evidence I have no confidence that she will comply with any terms. The evidence has shown that it was critical to break the emotional stranglehold that M.B. had over her son by transferring custody and making a significant break in H.'s contact with her. As noted, over the course of the summer, H. had restored his relationship with his father and started to develop some insight into the manipulative behaviour of his mother. The longer H. resides with his father the stronger their bond will become. As H. gets older he may develop an even better understanding of what happened to him.

[198] I have found that H.B. has always had H.'s best interests in mind. He has demonstrated all of the positive qualities that a good parent needs. Rather than put some terms on the resumption of mother-son contact that may never be complied with I think it is better to simply rely upon H.B.'s judgment as time goes by. He has experience as a parent who spent years away from his daughter and he knows how difficult that was for him and his daughter. He has demonstrated by his actions that he always wanted H. to have a healthy relationship with both of his parents. Accordingly I will make M.B.'s access to H. in the discretion of H.B. He will be best positioned to decide what terms to put on that access. He will determine what type of access, if any, is in H.'s best interests.

[199] With respect to documents I will not make a specific order for M.B. to surrender H.'s birth certificate or other documents because I do not think that she will comply. I will simply make it very clear that H.B. can obtain whatever he needs. H.B. should also be able to travel outside of Canada with H. whenever he wishes although he should provide M.B. with notice of the travel and an address where H. can be contacted if the travel exceeds seven days.

COSTS

[200] On September 11 H.B. sought costs for this proceeding. He filed a bill of costs, the invoice he received from FMF and his "offer to settle child related matters".

[201] Costs in family law matters are governed by Rule 24 of the Family Law Rules. The sub-sections relevant to this matter read as follows:

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

FACTORS IN COSTS

(11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter. O. Reg. 114/99, r. 24 (11).

[202] As noted above H.B. was self-represented throughout the trial. I understand from submissions that he had been represented prior to the trial and that he has had counsel throughout with respect to the support and equalization of property proceedings in the SCJ. Mr. B. Ludmer represents him in that matter. Mr. Ludmer has also acted for H.B. in the OCJ proceeding. However, when this matter began H.B. was represented by Ms. B. Barnett. His bill of costs read as follows:

Paid to exchange pleadings $10,000

Paid for pre-trial attendances $20,000

Paid for motion $10,000

Professional time lost for correspondence, meetings phone calls, pre-trial attendances, trial preparation and attendance at trial $20,000

Paid for therapists, counselors and supervisors $24,000

Total $84,000

[203] As M.B. did not attend for the conclusion of the trial on September 11 I had no submissions on costs from her.

Offer to settle

[204] H.B.'s offer to settle was made on October 16, 2017. I note from my review of the endorsement record that a Trial Management Conference was held on October 18, 2017. At that time both parties were represented. H.B. by Mr. Ludmer and M.B. by Ms. N Virk.

[205] The key to the non-severable offer to settle was an adjournment of the trial for six months to allow time for a re-unification therapy program to be completed and for a report to be submitted to the court. H.B. was to have specified access to H. during this time. There were specific positive and negative covenants set out and even a section detailing the child's rights and responsibilities. The offer contained a separate paragraph relating to costs. It stated:

Part 5 costs

23. The costs of the Ontario court of Justice Proceedings shall be reserved to the Trial Judge on the final adjudication of this matter unless otherwise agreed to by the parties.

Part 6 Miscellaneous

24. If this Offer to Settle is accepted by October 31, 2017 each party shall bear their own separate costs of the child-related matter in this case. If this Offer to Settle is accepted after October 31, 2017 costs shall be payable by the Respondent to the Applicant in an amount assessed by the Court. Notwithstanding the foregoing if this Offer to Settle is accepted by the Respondent and the terms hereof subsequently breached by the Respondent with the result that there is a Trial in this matter, costs for the entirety of the child related matters in this case shall be assessed by the Trial Judge. (emphasis added).

[206] The parties and counsel attended before the case management justice Justice S.V. Khemani on October 18, 2017. Her endorsement included the following statements:

There is an agreement in principle between the parties with respect to an order for parental covenants…Parties also agree in principle with respect to the parties retaining a reintegration specialist…TMC adjourned to December 18, 2017 …Counsel only shall participate via teleconference for the TMC.

[207] The order granted at the TMC on December 18, 2017 stated in part:

1. …the interests of the child require that this matter proceed to trial as soon as possible, the Trial Management Conference cannot proceed today because the Respondent is not present and because the Respondent's lawyer likely will be filing a Notice of Motion to be removed as lawyer of record.

2. The Trial Management Conference is adjourned to February 15, 2018… and shall proceed with or without counsel…

[208] H.B. filed a Notice of Change in Representation on December 18, 2017 and Mr. Ludmer was removed from the record. By order dated January 23, 2018, Ms. Virk was removed from the record. On February 15, 2018, both parties were unrepresented and the matter was scheduled for the trial audit. At that time M.B. had counsel Mr. Sandhu attend. He was unavailable for the next two sittings in April and late August respectively and he sought a longer adjournment. Justice L.S. Parent denied the adjournment and found it was nor reasonable to adjourn for seven months a matter that had been before the court for 700 days. The matter was marked to proceed in the April/May sittings and as noted above M.B. was able to retain Ms. L. Menon and H.B. remained unrepresented.

[209] It is quite apparent from this review of the endorsement record that H.B. had instructed Mr. Ludmer to pursue re-integration counselling. Mr. Ludmer crafted an offer to settle that recognized that the issues in this matter were not capable of real resolution at a trial. It also seems clear that Ms. Virk was unable to obtain instructions to move forward with a proposal that involved a true commitment to resolving the underlying issues that had caused the break in the father-son relationship. As noted above there was a consent to reintegration therapy in October 2017 as a therapist was retained but M.B. undermined the process.

[210] The wording in the offer that I have italicized above was meant to address the situation that occurred. It appears that Mr. Ludmer correctly anticipated that Ms. Virk might well recommend therapy and there might be an "acceptance" of the offer and a scheduling of therapy. However, he also anticipated that M.B. would ultimately not follow through and that a trial would be necessary. It should be noted that I find that outpatient therapy would not have worked in this matter in any event.

Summary

[211] I am left with the following:

a) H.B. was completely successful in this proceeding and is presumptively entitled to costs.

b) H.B. has not provided a detailed bill of costs that sets out the specific work done by his counsel under each broad category for which he claims. I note also that his counsel was working on both OCJ and SCJ matters at the same time so I do not know if there is a segregated account and if not it would take some time and cost to prepare one.

c) All of the work done prior to the beginning of trial was done prior to the costs amendments to the Family Law Rules and costs were not sought or ordered at each event in the proceeding. It appeared that there was no order for costs made at the time of a motion that did not proceed to argument.

d) H.B. may be entitled to full indemnity costs for the period following his offer but he did not have counsel after December 18, 2017.

e) H.B. cannot be reimbursed for the time that he has missed from his veterinary practice while preparing for and attending at trial.

[212] I considered simply permitting the parties to make further submissions on costs that would address the points that I have set out. I am concerned though with adding further legal cost to the pursuit of legal costs. M.B. has made it clear that she will not return to court or participate further.

[213] I have decided instead to award costs to H.B. for the amount that he actually paid to FMF. The invoices he received from Dr. Polak for the FMF costs were very detailed. The total amount of the paid invoices between the period May 6 and August 23, 2018 was $23,685. This entire process was made necessary by M.B.'s manipulation of H. and her failure to cooperate in any steps to remedy the damage done. I find that H.B. is entitled to a full reimbursement of the FMF costs.

FINAL ORDER

1. The Applicant H.B. shall have custody of the child H., born […], 2008.

2. The Applicant shall be entitled to obtain, replace or renew any official or government document for the said child that he may require without notice to or consent of the Respondent M.B.

3. The Applicant shall be able to obtain or renew a passport for the said child and travel with, or authorize travel of, the said child outside of Canada without notice to or consent of the Respondent. If that travel is for more than seven consecutive days he shall provide the Respondent with a general itinerary for the trip and numbers at which the child may be contacted.

4. The Respondent's access to the said child shall be in the discretion of the Applicant as to time, location, duration, and supervision.

5. The Respondent shall pay to the Applicant his costs of this matter fixed in the amount of $23,685.

6. The court staff shall prepare and issue this order as neither party was represented by counsel at the conclusion of the trial.

7. The return date of November 28, 2018, at 10:00 a.m., in court 201 is vacated.

Released: November 9, 2018

Justice Philip Clay