Court File and Parties

ONTARIO COURT OF JUSTICE DATE: August 10, 2023 COURT FILE No.: FO-57-2021

BETWEEN:

NATALIE ST-DENIS Applicant

— AND —

DANIEL POPKIE Respondent

Before Justice S. Bondy

Heard on July 14, 2023 Ruling released on August 10, 2023

Counsel: B. Ludmer, for the Applicant, N. St-Denis L. Sangster, Counsel for the Respondent, D. Popkie M. Perron, Counsel for the Office of the Children’s Lawyer W. St-Denis, Not a Party – Observing

BONDY, J.:

Ruling on Motion

Background

[1] The Applicant (Natalie St-Denis) and the Respondent (Daniel Popkie) are the parents of two children, namely, Francis Daniel Popkie (“Franky”) D.O.B. […], 2009, and Vincent (“Vincent”) D.O.B. […], 2007. Vincent resides with his Mother pursuant to an Order of Maille J. dated October 25, 2022. This Order was made in accordance with Vincent’s wishes and there is no interim parenting Order in place for him, given his age. (at the time of this Order he was 16 years old.) This is a Motion brought by the Applicant seeking an Order that the Applicant (“Mother”) have primary residency of the child Frank Popkie, (“Franky”) with additional terms and conditions tied to each parent’s parenting time. The Mother also seeks a finding that the Respondent (“Father”) is in breach of several portions of the Order of Maille J. dated July 19, 2022, and his Endorsement of November 14, 2022. The Motion also seeks Orders related to the work of the Reflection Centre in Barrie, Ontario, Orders compelling the Respondent’s strict compliance with certain parenting covenants found in Justice Maille’s Order of July 19, 2022 and costs.

[2] The Mother resides in New Liskeard, Ontario with her new partner and the older son, Vincent. The Father resides in North Bay, Ontario with the younger son, Franky. There is a distance of approximately 156 kilometers between these two communities; counsel advise the Court that this is about a two-hour drive between the two locations. Proceedings between the Mother and Father were commenced by urgent Motion in August of 2021 followed by issuance of an Application in December of 2021. These steps followed their separation on August 8, 2020. The Record reveals that there were several appearances devoted to settlement conferences and a trial management conference but there is no trial or focused hearing date in sight. These proceedings then have been outstanding for approximately two (2) years.

[3] This Motion appears to be at least the third or fourth Order relating to decision-making and parenting time issues for the parties. A consent Order of August 30, 2021, provided that the children were to reside primarily with their Mother in New Liskeard and attend school in New Liskeard. By a consent Order of July 19, 2022, a change was made to that original Order and now provided that both boys would reside primarily with their Father in North Bay. The Order also provided for joint custody and joint decision-making between the parties. These arrangements are described as taking place on a “trial basis” with the boys living with their Father in North Bay and for the first weekend each month; the balance of time was to be spent with their Mother. Holidays and summer vacation times were particularized together with the boys’ hockey schedule and events. Paragraph 3 of the July 19, 2022 Order provides that for clarity purposes the arrangements were trial only and the parties were to “endeavour to have a hearing of the status quo on or before the end of January 2023.” The Order provided that this trial period was to assess how the children were faring in North Bay with their Father. The Order also provided that these arrangements were variable without a material change in circumstances and they were not a parenting plan (as proposed by amendments to the Children’s Law Reform Act) intended to last until trial. The July 19th Order changed when Vincent went to reside primarily with his Mother in the fall of 2022. This change is incorporated in Justice Maille’s order of October 25, 2022. There was no “hearing of the status quo” (whatever that term means) before the end of January 2023.

[4] When this Motion was first returnable before me in May of 2023 I was astounded by the sheer volume and and complexity of the information developed in the Affidavits and arguments before the Court. Pursuant to my case management authority under the Family Law Rules and the importance of my promoting the primary objective of the Rules I particularized the issues for argument as follows:

(i) What is the appropriate interim residency Order for the child Frank pending trial or disposition of this Application?

(ii) Should any residency Order provide that the parties and Franky continue to engage in counselling with the Reflection Centre?

(iii) Are there any additional aspects of the incidents of decision-making/residency and parenting time that should apply (i.e., what parenting conditions should apply, if any)?

(iv) At this state of proceedings, is it necessary that findings of breaches be made against the Mother or Father pending trial?

(v) Costs

[5] In addition to my identification of the issues for argument, I directed that the Motion would address all previous parenting or decision-making Orders whether temporary or” trial” Orders and their incidents.

[6] On the first return, I found that the materials and documents for use on this Motion were voluminous and were adding unnecessary complexity, delay and costs to these proceedings. I provided detailed Directions related to the conduct of the Motion, including limiting some of the evidence before me (I refer to the three (3) other Affidavits filed by the Applicant’s parents and the Applicant’s new partner). By way of further example, the Applicant’s counsel had filed a Factum in support of the Applicant’s Motion containing ninety (90) footnotes with reference to hundreds of cases and authorities. I provided for time limits on submissions, I directed there be no further filings on the Motion without leave of the Court (save and except for the Office of the Children’s Lawyer) and I directed that Applicant’s counsel provide the Court with a Case Brief identifying seven (7) of his most relevant cases. I chose seven (7) cases as this number duplicated the number of filings by the Respondent’s counsel. The Court adjourned the argument of the Motion to July 14th.

[7] Despite my best efforts I received a request by way of a 14B Motion from the Applicant seeking permission to file a further Affidavit and Exhibits on the Motion including copies of correspondence exchanged between counsel for the Applicant and the Respondent after the first return date of May 30, 2023. This request was in addition to the two (2) Affidavits previously filed by the Applicant, each totaling at least 20 pages in length (excluding Exhibits and documents filed on the Motion). I would note that the original Motion materials already included a report from the Reflections Centre consisting of an undated document entitled “Clinical Intake Consultation – Interim Therapeutic Recommendations” totaling fifty-five (55) pages in length (including Appendices) and an “Updated Status Report” of May 23, 2023, a further six (6) pages in length. Similarly, the Respondent’s materials on the original Motion consisted of a singIe Affidavit totaling seventy-four (74) pages in length including Exhibits which in part were comprised of Franky’s school reports (prepared in the French language), a transcript of the August 12, 2022, findings of acquittal by Justice J.G. LeBel relating to criminal charges of assault against the Father by the Mother and Franky’s hospital records relating to his recent attendance on May 13, 2023.

[8] I adjourned the 14B Motion and directed that if all counsel (Respondent and OCL) were inclined to file responding materials, they were confined to five (5) pages only with a final Reply Affidavit of the Mother. The Court notes that once again, I reminded counsel of their duty to promote the primary objective of the Family Law Rules found at Rule 2 (4). On the return of the Motion, all counsel were in agreement that the additional Affidavits be allowed to be filed.

[9] On this Motion then there are five (5) Affidavits by the Mother, two (2) Affidavits by the Father, two (2) Affidavits by the OCL totaling nine (9) affidavits. In addition, there is the lengthy documentary evidence and Exhibits filed by the parties.

Mother’s Position

[10] The Mother’s evidence is to the effect that she is a long-term victim of emotional and physical violence and abuse by the Father all of which resulted in their separation which led to her charging him with assault which she concedes resulted in the Father being found not guilty. She alleges nonetheless that he is historically violent (i.e., choked her in a pre-separation incident of October 25th, 2019) and previously threatened to use guns and would do so but for the fact she had removed them from their home. Throughout their relationship she asserts she was the children’s primary caregiver in all respects. As for the change in the children’s residency pursuant to the Order of Maille J. of July 2022, she asserts that she only agreed with this as it was on a trial basis, and she was not aware of the limitations of the OCL’s involvement and the limited effects of Mr. Perron’s recommendations to the Court. The Affidavit recounts numerous instances where she alleges the Father has “breached” the terms of Justice Maille’s July 2022 Order including but not limited to problems over the use of cell phones, interference with her parenting time with Franky over the period September to December 2022 and from January to April 2023, including Christmas and Easter holiday times and maternal family get-togethers. She alleges that the Father is continuously disparaging of her; she has a recording of the Father’s communications with Franky where he speaks in derogatory terms about her. According to the Mother, Vincent is apparently fearful of his Father and has expressed this to the Mother. According to the Mother Vincent overheard a threat made against the Mother by the Father, Further criminal charges against the Father have been pursued; the particulars are not before the Court, but I think they are in the nature of a threat. A judicial interim release Order now prohibits the Respondent from being within the Timiskaming district (wherever that precisely is) and restricting the Father from having contact with the Mother or her partner.

[11] The Mother recounts numerous postings particularized in paragraph 46 of her Affidavit which reflect the Father’s disdain and disparaging conduct towards her. Throughout her Affidavit she uses terms such as “invalidating”, “incentivizing” “abdicates parental authority to Franky” and “empowering Franky to dissociate from her and his maternal family” as descriptors of the Father’s behaviour. She relies heavily if not exclusively on the findings and conclusions of the Reflection Centre’s report in concluding that the Father is engaging in a course of conduct that is “parental alienation”. I refer to paragraph 83 of the Mother’s Affidavit.

[12] The Mother’s plan for Franky is to have him finish his school year in North Bay (as the Motion was originally returnable on May 30th). Thereafter she proposes that Franky will attend a school in New Liskeard where he will reunite with his old friends. No school is named. She thinks this plan is less disruptive than Franky’s plan to transfer to Scollard Hall in North Bay. She wants Franky to return to her primary care and reside with his brother and her in New Liskeard. She acknowledges that Franky will have to change his AAA hockey club from North Bay to the New Liskeard Cubs, but she anticipates he will be able to play with his brother, Vincent and she opines that the New Liskeard team has “consistently defeated North Bay in the standings”. Her proposal is that Franky will reside primarily with her and spend weekends with his Father in North Bay “following approval of the counselling team at the Reflection Centre, who can assess whether [the Father] is ready to communicate appropriately with the children and show a commitment to Franky’s maternal family” (my bolding).

The Father’s Position

[13] The Father disputes the Mother’s claim that she was the children’s primary caregiver throughout their relationship. He advises that following their separation the Mother tried to limit his parenting time with their sons and when he refused she had him criminally charged and used these charges to gain a foothold over him with her demands. These charges he advises had a devastating effect on his finances and his livelihood. According to the Father he eventually re-located to the “hockey home” the family previously maintained in North Bay, where the family and children lived from time to time prior to the parties’ separation. It allowed the children the opportunity to play a higher level of hockey in North Bay. According to the Father this plan to play “higher level hockey” took hold in 2017. According to the Father, there was conflict with the Mother when the boys wanted to move to North Bay and live with him there following their separation.

[14] The Father is not exercising parenting time or visitation with his older son Vincent, as he alleges the Mother has spoken to Vincent about the assault charges and this led Vincent to believe that the charges would not have been laid if the Father did not commit the assault. Vincent also blames his Father for attempting to thwart a visit to Europe and the Father blames the Mother for Vincent thinking his Father would try to compromise his European visit. The Father uses the same term of “incentivizing” as the Mother used in her Affidavit. He claims she “incentivized” Vincent when she took him to an NHL hockey game in Florida without his permission and without notice to him. This conduct is particularly egregious to the Father as Franky could not travel to play in a hockey tournament in Europe (Prague) without a commitment to engage in counselling with his Mother as part of Justice Maille’s Order of April 26, 2023.

[15] In his Affidavit the Father provides his explanation for Franky’s refusal to visit with his Mother. Franky has made it “incredibly clear” that he has struggles with his Mother, that the conflict is constant and “he does not feel like anyone is listening to him”. The Father asserts that he was at first ambivalent about how much pressure he should apply on Franky and his refusals to visit with his Mother, but the Father explains that he was encouraged by the Court to force the issue of visits with Franky, and he advises he has repeatedly done so; particularly after the Court appearance before Justice Maille on April 25, 2023. The Father expresses his dilemma as follows: “I am his Father and I am unsure of what to do. When I advocate for him, the Applicant accuses me of alienating him, but when I strongly encourage him to spend time with his Mother, he accuses me of not listening to him”.

[16] The Mother has referred to a number of disparaging messages posted by the Father on the Family Wizard program. The Father explains that they occurred during a particularly conflictual time when he and the Mother were arguing over Vincent and the Father’s concerns that Vincent was being influenced by the Mother. The Father explains that his messages have been taken out of context or are a direct misrepresentation by the Mother. He expresses his regret over some of the messaging, stating he was in a highly emotional state.

[17] As for Franky’s parenting plan he proposes that he continue to reside with him and continue in the same regime he has had since July of 2022. Specifically, he and Franky will continue residing in the same residence he has known since 2018. Franky is enrolled at École Secondaire Algonquin and takes classes in English and French. His progress is described as excellent, with an average overall grade performance of high seventies to mid-eighties. His highest grade is 97 % in two classes. He proposes that Franky will attend Scollard Hall in September of 2023. His school reports reflect an organized, attentive and engaged student. He advises that even with this change of schools Franky will have the same friends from his present school. He wants Franky to be able to attain his goal of playing high level hockey and possibly being drafted to the OHL and he believes this is best accomplished by remaining and training in North Bay. According to the Father, Franky is being heavily scouted by several different agencies and has been invited to an All-Star Sports Showcase. He expresses worry that should Franky reside with the Mother she may not permit him to participate in these opportunities nor make the necessary effort. He advises that he supports both Franky and Vincent in their decisions respecting hockey. As for the Mother’s concern that Franky is not receiving regular eye appointments and dental cleaning the Father asserts he is waiting for clarification on who Franky will be residing with to arrange a family doctor, dentist and optometrist for Franky in North Bay.

[18] I take note that the Father’s affidavit asserts that he is prepared to strongly encourage Franky to continue his parenting time with his Mother; at the same time, he expresses concern that having weekend access in New Liskeard may be problematic for Franky as a result of his social life and friends in North Bay.

The Mother’s Responding Affidavit

[19] The Mother’s responding Affidavit is over 24 pages long with additional Exhibits including the Updated Status Report of the Reflection Centre. The Mother rejects most if not all of the Father’s claims. She rejects that they equally shared childcare while residing together as a family. She repeats that she endured frequent abuse from the Father during their relationship regardless of what the criminal court’s findings were. She disputes that the “hockey house” in North Bay was intended for use as a family home. It was there, she alleges, that the Father “poisoned” the children’s view of her and she calls this period of the Father’s care following their separation as “complete parental alienation” and “marginalization” of her as a parent. As for the assault charges that ensued, she rejects the Father’s claim that he was forced to resign from his employment and suffered significant income loss. As for Vincent, she opines that his decision to return to reside in her primary care is due to his Father’s abusive behaviour. As for the events that generated the Motion of April 26, 2023, relating to Franky and his participation in the hockey tournament in Prague, she advises that “she was willing to agree to permit Franky’s proposed trip to Europe so long as the Respondent complied with our Court orders for parenting time and therapy ”.

[20] Most of her Affidavit references the findings of the Reflection Centre authored by a Ms. Alton. She relies extensively on those findings to support her position that the Father has engaged in a campaign of persistent parental alienation against her. She repeats that she has always made her best efforts at supporting Vincent’s relationship with his Father by ensuring his attendance at counselling. She rejects that Vincent’s trip to an NHL game in Florida was contrived or without notice. She offers that it is not she, but rather the Father who has involved the children in adult matters that they should have been shielded from. As for the children’s residency change in the July 2022 Order, she offers the additional explanation that this occurred as a direct result of the Father’s pressure on the children. According to the Mother, it is only when Franky is away from the Father’s “invalidating” home environment and has “a brief period of emotional relief” that they are able to share quality time together. She describes the OCL Affidavit of Ms. Mayotte as to Franky’s views and preferences as “conscripted” statements.

[21] In totality, she rejects the Father’s suggestion that he will work at “forcing” Franky to visit with her. She repeats that the Father has steadfastly refused to support her court-ordered relationship with Franky. She offers that the Father has placed greater importance on hockey for Franky than facilitating her parenting time. She expresses concern that Franky’s medical needs are not being taken care of; offering that she proposed appointments on PD days for Franky’s appointments, only to be rejected by the Father as he refuses to have Franky attend in New Liskeard. She was not notified of Franky’s proposed schooling change for the fall of 2023.

[22] As for the Affidavit of Renee Mayotte on behalf of the Office of the Children’s Lawyer the Mother is dismissive of the OCL investigation, she complains that the OCL process “was not a forensic analysis of the troubling behaviour that Franky is exhibiting and the conscripted statements that Frank is advancing”. She prefers the Reflection Centre findings where “Frank[y’s] cognitive distortions can be tested in therapy; the insight is very telling”. She expresses disappointment that the OCL did not interview Vincent for insight into his brother. She believes it is unreasonable to believe that Franky has independent views given his “loyalty bind” with his Father and the withholding of her parenting time with him. She rejects that Franky reported that things didn’t go well while he was in her care before he moved to North Bay as a “display of his cognitive distortions developed during the “trial run” parenting plan. She describes Franky’s views and preferences as reported by the OCL as “misrepresentations” and false claims. She details the happy times that they enjoyed after May 13th, 2023.

The 14B Motion

[23] The Mother’s Affidavit of June 15, 2023, alleges that following the Court’s adjournment of this Motion on May 30th, 2023, the Father used the adjournment by the Court as an opportunity to further marginalize her from Franky’s life and returned to refusing to follow the directions for her parenting time. According to the Mother, the Father ceased attending counselling with the Reflection Centre, recruited Vincent to do the same, Franky did not respond to her birthday wishes and presents on June 1st and she missed her parenting time with him during the weekend of June 9 – 12. According to the Mother Franky sent her a message telling her he didn’t want to see her again.

[24] According to the Father he is not interested in attending at the Reflection Centre for family or individual counselling as he is dissatisfied with their counselling and is concerned over Vincent’s increasing hostility and threats of physical violence towards him. He expressed that he is generally dissatisfied with their attempts at reunification therapy between he and Vincent and does not believe they are acting in Vincent or Franky’s best interests. He believes their focus has been on Franky and not on reuniting he and Vincent. As for the Moher’s missed visits he offers that there was a dispute over the pick-up and drop off point for the weekend of June 9 – 12 between the parties as the present drop off point at the Temagami Petro station may be contrary to the terms of his judicial interim release order. By the time an agreement was reached; it was too late to arrange the visit. But despite Franky’s initial ambivalence the Mother had parenting time with Franky from June 16 to 19th, from June 23rd to 26th and from June 29th to “present day”. During this time the Father alleges that the Mother told Franky that his Father was going to lose in court. As for the claim that he surreptitiously tried to change Vincent’s schooling to North Bay, he offered that he asked Vincent to confirm with the school that he changed his plan and wished to remain in New Liskeard after his original plan to return to North Bay.

[25] By her final Reply Affidavit, the Mother offers that she would not have had parenting time with Franky, but for bringing her 14 B Motion. She denies specifically speaking to Franky about this litigation. She rejects that Vincent has ever made physical threats against his Father and she has spoken to him, he denies this, and she believes him. She is incredibly concerned that Franky is lying to the OCL; that what he is saying is simply not true especially when it concerns the statement that he stays in his room during his visits with her. She offers an explanation on behalf of Ms. Alton concerning her (Ms. Alton’s) lack of neutrality and Ms. Alton’s efforts to “support compliance with court-ordered parenting plans”.

The Findings of Justice J.G. Lebel of August 12, 2022

[26] In his ruling of August 12, 2022, Justice Lebel made the following findings in connection with the proceedings before him in which the Father was acquitted of the counts of assault and mischief which according to the transcript cover the times frames of January 1, 2017, to October 31, 2019, and October 1st to October 31, 2019:

1. The complainant’s (Applicant Mother’s) ability to recall events was very poor;
2. The Complainant (Applicant Mother) was not a candid witness. She was more interested in determining the reasons put to her in cross-examination rather than simply answering them;
3. The Complainant (Applicant Mother) was viewed with a very strong sense of being wrong[ed] during the family law proceedings which caused her to be vindictive vis a vis the accused;
4. She was evasive and non-responsive to questions in a number of instances that were put to her in cross-examination.
5. In some instances, she was careless with the truth.
6. She was argumentative with counsel for the accused during cross-examination. It was like a verbal sparring session.
7. Her evidence in its totality was unreliable.
8. He was not sure that the text message attributed to the accused at tab one was genuine. There was no telephone number associated to it; there was no date associated to it other than the evidence of the Complainant which he found to be unreliable.

The Reflection Centre Findings

[27] There are two reports that were filed “on consent” of this Motion. This was not my direction but rather the direction of Justice Maille. The first is an undated report which counsel advise was completed March 19 of 2023 and entitled “Clinical Intake Consultation – Interim Therapeutic Recommendations”. The second is an updated Status Report of May 23, 2023.

[28] The First report indicates that the Mother first contacted the Centre on October 31, 2022, seeking information relating to reunification services. Ultimately the parties signed an Intake agreement and agreed to what is described as a CIC family intervention. The report indicates that it is not a comprehensive clinical report nor a s. 30 custody and access report, but “a summary of background information gathered during the intake process, clinical observations and impressions, a clinical formulation regarding the therapeutic issues and discussions of the options that may be considered by the parents as a way forward to addressing a child’s needs and restoring strong, consistent, and healthy parent-child relationships.” I refer to p. 2 of the Report.

[29] The clinical impressions and Recommendations in this Report concluded with the following:

1. That Mr. Popkie would only exert his authority to ensure Franky attended his scheduled parenting time with his Mother if he was in charge of the plan or when there was some personal benefit for him;
2. That both Mr. Popkie and Ms. St-Denis bear responsibility for involving their children in adult content related to their separation. For Mr. Popkie he is highly critical of Ms. St-Denis and attempts to influence the children to side with him. For Ms. St-Denis she violated Franky’s privacy by recording Franky’s conversation with his Father which may have impacted his ability to trust her intentions and respect his privacy;
3. Franky has additional resistance to reunifying with Ms. St-Denis due to the presence of her partner which requires that Ms. St-Denis spend individual time with Franky without [her boyfriend];
4. A loyalty bind exists between Mr. Popkie and Franky by incentivizing Franky to perform according to his own Agenda which has significant implications for his resistance toward his Mother;
5. Mr. Popkie has contacted the Toronto Star to share his legal process and although he may be seeking support this conduct runs the risk of entrenching the children in resist-refuse dynamics;

[30] I note that sessions with Franky and Vincent revealed that Franky expressed deep distress regarding his mother’s involvement in his hockey career and considerable upset with his mother’s boyfriend. He expressed that his Father supports his desires and gives him a voice; unlike his Mother who he described as forceful. Vincent was described in the Report as reserved and guarded. He attributed his poor grades to his parents’ conflict. He expressed he had previously struggled with his parents’ ongoing conflict and the pressure from his Father to choose sides. He expressed love for both his parents and feels less pressure being 16 years old and not having to choose sides.

[31] In an Updated Status Report following the Court proceedings of April 25, 2023, both parents acknowledged they were sorry for the stress they created for Franky with their conflict. Ms. Alton concluded that Franky had a distorted view of his parent’s conflict and the court proceedings as he saw his mother as the instigator and the problem. According to this Report, the Father was unwilling to correct Franky’s distortions and expressed that Frankie “had a right to make his own decisions”.

[32] Following the events of May 13th, 2023, the Mother expressed her fear and emotional trauma regarding the last parenting visit when Franky threatened to throw himself out of her car. She insisted that he did not do so. She expressed that Vincent is more stressed and she is concerned about pressure being exerted on him by Mr. Popkie. Mr. Popkie stated that Franky had indeed jumped out of a moving car and had sustained scratches on his leg. He believed that Ms. St-Denis had “set up” the situation on May 13th in Order to make Franky look crazy and that he no longer trusted Ms. St-Denis with Franky’s wellbeing. He believed that Franky was well rounded and mentally stable, and this negated the need for any mental health support. Mr. Popkie believed that Ms. St-Denis was constructing a specific narrative that Franky became suicidal only after spending a week with his Father. He was described as glad that the incident took place as it reflected poorly on Ms. St-Denis. As for discussing the incident with Franky Mr. Popkie declined to do so due to fear of being punished for speaking with Franky and he was unwilling to discuss Franky’s behaviour (i.e., that he did not attempt to throw himself out of the car) to ensure his future safety.

[33] At the end of this session, Mr. Popkie expressed that he refused to be “intimidated” by the reunification team, perceiving them as biased. He expressed his upset that Ms. St-Denis would not allow him to enter the hospital after the incident of May 13th and he was now worried that the Mother would press charges against Franky if his behaviour escalates. He was unwilling to work with the mother around co-parenting and continued to express that Franky might not be safe as his mother would make up allegations against him. He vehemently denied that Franky was suicidal.

The Incident of May 13, 2023

[34] The events of this day are gathered from the Affidavits of the Mother and Father, what the Reflection Centre report detailed, and the hospital reports referred to in the Father’s affidavit. I will address what Franky had to say about this incident in the category below.

[35] According to the Father a HANDS worker reported that Franky and his mother got into serious conflict during the visit and Franky jumped out of a moving vehicle resulting in a scrape to his arm. As for the visit itself, the Father did not give Franky the choice to not attend; he strongly encouraged him to see his Mother, but he had expressed that Franky would need one or two visits in North Bay before he was comfortable spending the entire weekend with his Mother in New Liskeard. According to the Father, the Mother insisted that she and Franky go to New Liskeard anyways and this is when he threatened to jump out of her vehicle and ultimately did so. The Father asserts that Franky was ultimately brought to the hospital by his Mother to be assessed mentally. The Father expressed that he was upset as this incident was consistent with what Franky had been telling the OCL (about his relationship with his Mother and their conflict). The Reflection Centre report details the Father’s reaction to what happened.

[36] The Mother’s account of May 13th is referred to throughout her Affidavit of May 25, 2023, at paragraphs 17, 32 and 35 – 50, 99 – 105. According to the Mother the entire incident of May 13th was “manufactured” (to use her terms) by the Father. She believes it is an obvious result of his withholding parenting time between Franky and her and his manipulation of Franky. She believes the Father was upset when he could not “leverage” the police officers to remove Franky from her care following this incident. As far as the Mother is concerned, the Father started imposing conditions to her parenting times as to pick up and drop off times and locations contrary to Justice Maille’s Order of July 19, 2022. She describes the Father’s request that the visits take place in North Bay as “demands” made at the Reflection Centre meeting. She rejects that he advised the Court of his concerns about her taking Franky immediately to New Liskeard. She expresses that she always intended to take Franky home to New Liskeard for his visit and his upset was a “manufactured” incident “incentivized” by his Father and following Franky’s long separation from her.

[37] The Mother reports that during her visit with Franky on May 13th, he called the police to report he was being kidnapped, he had a temper tantrum, tried to open the car door at least two times, there was a struggle over his getting out of the car, but she insists he did not jump out of her moving vehicle, which she could not stop in the course of the struggle. According to the Mother the police “apprehended Franky and took him to the hospital” after she explained the situation to them and where she was prohibited from staying with Franky as a result of the Father’s attendance there. As for the hospital reports the Mother asserts that she was barred from talking to Franky and “correcting the false reporting within the hospital room”. She considers the comments in the hospital record “misrepresentations” that she did not have the opportunity to correct. According to the Mother, the police agreed that she should “enforce the parenting Order and bring Franky back home with her”. She reports that the attending physician was not concerned over Franky harming himself. After Franky returned to her home he had an enjoyable time with the family and his grandparents.

[38] The hospital reports are revealing. They are attached as Exhibits to the Father’s Affidavit. They detail that there was conflict over whether the Father could go in and speak with Franky while at the hospital. The Mother is described as argumentative with the ward clerk and insisting that Franky could not speak with his Father as part of their court Order. Her father wanted Franky’s Father removed from the hospital. Her behaviour is described as disruptive and argumentative by the hospital staff. The triage notes describe Franky’s situation as a very complex social situation where someone (this is not clear and may have been the police) disclosed that he jumped out of the Mother’s moving vehicle. The report also indicates that Franky earlier voiced suicidal comments about slitting his throat.

[39] Dr. Bruulsema’s report details that Franky was brought to the hospital by police as the Mother had reported that he had voiced suicidal ideation when they were arguing. Franky disclosed that he has frequent disagreement and verbal altercations with his Mother and feeling uncomfortable while in her care and wanting to stay with his Dad instead. He admitted to making comments about killing himself when arguing with his Mother, but this was said “in the heat of the moment”. Franky told the doctor that he expected to be staying in North Bay with his Mother during their visit together on May 13th. Most importantly, he expressed to the doctor that he “sometimes has suicidal thoughts when he is very frustrated and typically during arguments with his Mother”. At the same time, he disclosed that he has never made a plan to end his life and wanted to “get out of the situation with his Mother and felt trapped and stressed out”. Overall, the Doctor’s observations were that Franky generally slept well, does well in school, play hockey but “does find himself stressed out often when conflict between his parents arises”. He apparently has expressed his preference to stay with his Father clear to a CAS worker and both of his parents but “finds it quite exhausting and futile to continue advocating for himself”. He feels that “no one is listening to him”. In totality, the Doctor did not find that Franky met the clinical criteria for mood or anxiety disorder, and she did not think that he was a particularly high suicide risk.

The OCL Affidavits Respecting Franky’s Views and Preferences

[40] Ms. Renee Mayotte is a member of the Office of the Children’s Lawyer’s clinical panel in Timmins and has a bachelor’s degree in psychology and a Master of Arts in Counselling Psychology. She was retained to offer clinical assistance to Franky’s lawyer, Mr. Perron. The purpose of her Affidavit was to provide the Court with evidence relating to Franky’s views and preferences in regard to his living arrangements and contact with his parents. She was retained just prior to the original return date on the Motion before me of May 30th and again on July 7th, 2023.

[41] On May 30th, Franky told her that his visits with his Mother didn’t historically go well, he was secluded in his room, and they argued on a near daily basis. His focus was on training and hockey. As to the incident of May 13th he said his Mother led him to believe they would be staying in North Bay, that he was nervous to go to New Liskeard (something to the effect that his Father couldn’t go there to get him if things didn’t go well), that she was driving in a zig-zag fashion in strange neighbourhoods on unusual roads until she came to the highway and started driving at a high rate of speed towards New Liskeard. He opened the door, told her to stop, she grabbed his shirt, and he eventually took it off, and was yelling at her to stop. He called 911 and when his Mom slowed down he jumped out of the car and ran towards the police. He told the police suicidal things before he was taken to the hospital. He overheard his Mother arguing with staff to “charge his Father with breach”. According to Franky he had a nosebleed and felt enormous stress.

[42] On May 14th, according to Franky his Mother was aggressive, telling him he was wrong, that his Father is a liar and manipulator; that he needs to get used to her boyfriend being around.

[43] When he met with Ms. Mayotte he told her he wants to stay in North Bay with his Dad, that he feels supported at his Father’s home, that he has a contract to play with the North Bay Trappers, a triple “A” hockey team and is hoping to transition to the OMHA, a higher hockey league. He explained that he is doing really well in school, has a grade average of A’s and B’s. He wants to change schools to St. Joseph-Scollard Hall in grade 9 as it has a great hockey and academics program. He has a job at a local restaurant in North Bay and a few good friends and a girlfriend. He attends weightlifting on Monday, Wednesday and Fridays and participates in different team sports. As for visits with Vincent they do not happen often; he relayed that his brother doesn’t stand up for him anymore; and told him to stop getting mad and “deal with it”.

[44] In his Affidavit of July 10, 2023 Franky reported that his visits with his Mother were not “going well”, that he should have the right to speak about what he wants, that the police have attended every visit with his Mother as he ran away from his Mother’s home wanting to return to his Father’s, that his Mother told him that his Father would lose in Court, that his Mother has alienated him by calling his Dad a bad person and “they gang up on me and make me feel like shit”. During a recent pool party his Mother punished him by telling him he could not go into the pool. He explained that he and his Mother do not text or visit outside of his parenting times. His visits with her on weekends but this interferes with his work and part-time employment.

[45] As for his relationship with Vincent, he thinks that Vincent is aggressive towards him, and he feels very unsafe as Vincent took out a pocketknife and pointed it at his neck.

[46] As for counselling, he is adamant that he does not want any. He feels the counsellors made him feel terrible for feeling the way he does, that he needs to focus on his own life, that the counsellors are not neutral and all they do is judge him, when he expresses his feelings.

[47] When Ms. Mayotte interviewed Vincent he explained that “things were not going well” with he and his Father, that he did not want to see his Father at this time but hopes that things will mend in time. He feels they both need their space, and he loves his Father, and his Father loves him. He expressed that things at his Mom’s were “going as well as it could” and he believes the conflict between his parents will continue and he will be stuck in the middle. His visits with Franky were described as good but he expressed that Franky likes time by himself and playing video games. He wants to continue to live with his Mother and have parenting time with his Father as he wishes.

Issues

[48] One of the issues on this Motion is the question of the sheer volume and use of materials that counsel propose to be included for argument on this Motion. It bears repeating that Rule 14 of the Family Law Rules presumptively governs the question of procedure and evidence on a Motion. Motions are brought when a person seeks a temporary order related to a claim or directions on how to conduct the case or a change in a temporary order. See Rule 14 (1). Motions can be withdrawn, may or may not require notice, may involve complicated or uncomplicated or unopposed matters. See Rules 14 (7)(10)(12). Motions can include additional evidence such as documents. See Rule 14 (7). Evidence on a Motion may be given in any number of ways but must include an affidavit or other admissible evidence in writing, a transcript of questioning or with permission oral evidence. See Rule 14 (17). Affidavits for use on a Motion should be based on personal knowledge but may also contain information learned from someone else, if you identify the source of the information and you believe the information is true. See Rule 14 (18) and (19). When conducting a Motion, the party bringing the Motion shall serve all the evidence in support of the Motion, the party responding shall then serve all their evidence in response and the moving party may then serve reply evidence replying to any new matter raised by the defending party who responded to the Motion. Otherwise, no other evidence may be used. See Rule 14 (20).

[49] It is trite law to repeat that expert opinion evidence is presumptively inadmissible unless a basis for its admission is produced particularly within the context of an interim Motion. However, there is a vanishing thin line between lay and expert opinion evidence. Rule 20.1 of the Family Law Rules provides the duties and expectations of experts who provide evidence in relation to cases under the Rules. Westerhof v. Gee Estate, 2015 ONCA 205 distinguishes between “fact witnesses” and “litigation experts in disguise” and the applicability of the Rules. In the context of interim Motions, Genovesi v. Genovesi, 1992 ONSC 8562 provided the guiding principle that reports, and assessments should usually NOT be admitted until trial, without exceptional circumstances. See also Grant v. Turgeon, 2000 ONSC 22565. However, the passage of time has revealed that on a Motion for interim relief exceptional circumstances are not necessarily required. See Bos v. Bos, 2012 ONSC 3425, at paras 22 – 27. In Krasaev v. Krasaev, 2016 ONSC 5951 the Court distinguished between recommendations and observational evidence on an interim Motion and in Miller v. Miller, 2022 ONSC 7237 the Court applied that same approach in admitting evidence in an OCL report disclosing seven (7) to eight (8) unreported police occurrence reports. In summary then, generally assessments and reports will not be admitted until after trial unless it falls under an “exceptional circumstance”, or it is evidence of observations and statements.

[50] Interim and final therapeutic counselling orders, including reunification therapy, can be a very effective tool to help broken families and children in particular as they transition through emotional turmoil and move forward in a healthier way. The jurisdiction to do so is found under. S. 24 (2) (7) and 28 (1) (a)(b) and (c) (viii) of the Children’s Law Reform Act (hereinafter “the Act”) as an incident to a parenting order and as part of compliance with a Court Order under Rule 1 (8) of the Family Law Rules even on an interim basis. See Bouchard v. Sgovio, 2021 ONCA 709. The jurisdiction to do so has not been impacted by the amendments to the Act. See Testani v. Haughton, 2016 ONSC 5827; A.M. v. C.H., 2019 ONCA 764 and C.M.W.T. v. M.M.M., 2021 ONSC 4809. However, forcing children (particularly adolescents) to engage in therapeutic processes against their will may not only be futile but harmful. See Gee v. Gee, 2023 ONSC 2992; Kaszap v. Volk, 2019 ONSC 4162, at paragraph 15; V.L. v. M.L., 2019 ONSC 7367 and C.B. v. E.G., 2023 ONSC 1571. In Testani the Court opined that such orders should be made sparingly but on compelling evidence, adequately supported by a detailed proposal identifying the proposed counsellor and what is expected and with appropriate direction to the counsellor/therapist. Such Orders may engage issues pursuant to s. 10 of the Health Care Consent Act. See Gegus v. Bilodeau, 2020 ONSC 2242.

[51] Children’s best interests within the context of decision-making/parenting time orders are statutorily defined pursuant to s. 24 of the Children’s Law Reform Act. All factors related to the circumstances of a child shall be considered and primary consideration shall be given to a child’s physical, emotional and psychological safety, security and wellbeing. The enumerated factors in s. 24 (3) (e) include factoring the child’s views and preference and giving due weight to the child’s age and maturity unless they cannot be ascertained. Section 24 (3) (c) and (h) include each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent and the ability and willingness to communicate and co-operate, in particular with one another on matters affecting the child. As it relates to family violence, Section 24 (3) (j) provides that the Court shall carefully assess its impact on the ability and willingness of the party engaging in it to meet the needs of a child and to consider the appropriateness of an order requiring such parties to cooperate on issues involving the child.

[52] Orders for compliance under Rule 1 (8) of the Family Law Rules provide the Court with a broad latitude to craft remedies to support future compliance of court Orders as they are not merely suggestions, frameworks or guidelines. See McCarthy v. Murray, 2022 ONSC 855. Parents are required to actively promote and facilitate compliance with access and custody orders, but a parent does not have to force a child to attend. See Sickinger v. Sickinger aff’d at 2009 ONCA 856. The evidence must show on the balance of probabilities chronic, deliberate, willful and intentional non-compliant behaviour. See Bouchard.

[53] Counsel retained by the Office of the Children’s Lawyer pursuant to s. 89 (3) of the Court of Justice Act cannot merely advise the Court on a child’s views and preferences, absent consent or leave of the Court. Counsel for the OCL is entitled to file or call evidence and make submissions on all the evidence. Evidence as to a child’s views and preferences must be introduced through evidentiary means. See Strobridge v. Strobridge, 1994 ONCA 875. The Court should carefully assess whether views and preferences have been influenced and be mindful that evaluative statements have no weight. See Decaen v. Decaen, 2013 ONCA 218 and Ludwig v. Ludwig, 2019 ONCA 680.

Analysis

[54] This was an unnecessarily complex Motion as a result of the sheer volume of materials and the number of issues which were raised - especially so by the Applicant. There was disagreement whether this was simply a “review” of a “trial” or interim order without the necessity of proving a material change in circumstances or a re-location request sought by the Mother. The Order of July 19, 2022, at paragraphs 1, 3, 6 and 10 makes it very clear that the parties agreed (and the Court adopted the Consent filed) that the residency order was trial or interim only and the test to be applied was one of “best interests” ONLY without regard to whether there had been a change in circumstances. I agree with the Applicant’s position that this is not a relocation case, but a review of the primary residency arrangements found in Justice Maille’s July 19, 2022, Order.

[55] I have noted that the Orders of August 30, 2021 (where the Mother was granted the primary residence of the children) and July 19, 2022 (where the Father was granted the primary residency of the children) were both made on Consent. There are no reasons supporting the Orders made and it would appear there was no argument or hearing to support the Orders made other than the parties’ agreement. At least there is nothing in the Endorsement record to reflect this and no Reasons were produced before me. The 2021 Order directed that the children be enrolled in counselling with Sharon J. Chayka or her designate and the applicant and respondent were to fully participate in same and enroll in any counselling recommended by the children’s counsellors. The evidence does not reveal what the outcome of Ms. Chayka’s involvement was or why she did not undertake a s. 30 assessment pursuant to the Act or the reasoning behind why she was named in the first place. The terms of the 2021 Order were ultimately vacated with the 2022 Order except for paragraphs 11 through 15 which are described as “final” and surviving the 2022 Order. These terms largely direct BOTH (my emphasis) the Mother and Father not to discuss this litigation with the children, not to engage in disparaging conduct of the other, that each will actively encourage the other’s parenting role and a mutual commitment to reduce conflict between themselves. These are important acknowledgements and commitments by both parents addressed in this Order. The 2021 Order followed on the heels of an August 17, 2021, Endorsement that prohibited I note, the parties from communicating with the children about these proceedings. I would also note that the 2021 Order directed that the Father engage in counselling with Ms. Chayka regarding appropriate communication with the children; his access and cell phone access to the children was suspended until at least two sessions were completed. Before me there was no evidence as to what occurred with these sessions or what specific evidence prompted that Order. Ultimately the only evidence before me was the 2021 Order itself.

[56] The 2022 interim Order is a complex document providing for joint custody and joint decision making between the Mother and Father. I note that it is over thirty-four (34) paragraphs long with multiple covenants related to decision- making and parenting time for either or both parents. Frankly, the Order is extremely long and circumscribes most aspects of the Mother and Father’s parenting; many clauses provide specific direction to the parents especially related to their involvement in the children’s hockey and sporting activities. As an observation, I note this Order would likely require a significant degree of communication between the parties and their ongoing joint participation. This would have been a challenging feat in the face of the history of conflict between the parties. The Order appears to have been made despite the Mother’s continuing allegations of domestic violence and the provisions of s. 24 (3) (j) (i) and (ii) of the Act. Again, there were no reasons or Endorsement before me to assist me in understanding the nature and extent of these provisions. Some paragraphs merely order that the parents will “agree to agree” or “endeavour to agree”. Paragraph 6 of the Order provides that the parties agreed to “endeavour” to have a hearing on the status quo of the residency agreement on or before the end of January 2023. This did not occur. Another curious provision provides that if either or both children wish to reverse the parenting time set out in the Order they are to contact the OCL who was to notify the parties. I use the term curious, as this appears to follow a pattern of what appears to be a strategy of largely delegating the question of the children’s residency to third party professionals and/or the OCL negotiated by the parties. Presumably the OCL clause was invoked at the time that Vincent returned to his Mother’s residency. As important as mutual decision-making and cooperation can be, this strategy of delegation can potentially abdicate what is the fundamental fact finding and adjudicative responsibilities of the Court. And notwithstanding the Court’s jurisdiction to make interim and final orders for therapeutic counselling, this strategy of delegation ultimately produced a “report” (i.e., the Reflection Centre) that the Mother suggests I should accept and endorse in relation to her Motion. Even on this Motion’s return the Mother is seeking an Order granting far reaching powers to the Reflection Centre. I refer to paragraphs 9, 18, 20, 21, 22, 23 and 24 of her Notice of Motion of May 30, 2023.

[57] The 2022 Order provides mandatory counselling for the children and parents and the Order provided that “both parents shall encourage and facilitate counselling for the children”. This is paragraph 10 of the 2022 Order. There is a further Endorsement for counselling for Franky on November 14, 2022. The evidence is unclear how the Reflection Centre of Barrie Ontario was selected or why or what the specific qualifications of Ms. Alton are. No Curriculum Vitae was filed with this Motion. Other than her self-claims of expertise there is no evidence to support Ms. Alton’s areas of expertise and experience. Curiously the Report of March 19, 2023, indicates that the Mother first approached the Centre seeking information about reconciliation services. Ultimately the Father became involved. Why the Mother made that first approach is not clear on the evidence before me. The evidence is unclear how “counselling” in the 2022 Order morphed into reconciliation therapy and then morphed into an undated Consultation report and an update following the events of May 13, 2023. Some of the Reflection Centre’s report includes the children’s and parents’ statements and observations; other parts of her report include opinions and clinical findings even though Ms. Alton describes her report as “not a comprehensive clinical report nor a s. 30 custody and access report.” Notwithstanding those introductory comments, the Alton Report then includes what is described as clinical observations and impressions, a clinical formulation regarding therapeutic issues and a discussion of options available to the family. The report reveals that there was a difference in goals between the parents and their expectations from the Centre. The report reveals that Ms. St-Denis sought intervention to resolve “the resist-refuse dynamic through family intervention” (See p. 1 or Report). Mr. Popkie wanted the views and preferences of the children to be explored. (See p. 2 of the Report). The Report disclosed its Mandate as “determining whether family therapy for parent-child conflict problems (also known as reintegration family therapy) was suitable for the family”. (See p. 1 of report) But the evidence appears to reveal that the Report proceeded beyond that initial mandate.

[58] I note that certain aspects of the counselling were unusual to say the least; it was conducted on an open basis, so any counselling conducted was non-confidential. There is no protection of privacy interests – even the privacy interests of the children. It is unclear if the evidence of Ms. Alton is that of a fact witness or a litigation expert in disguise. What is clear is that she was not appointed by the Court pursuant to the Rules or under the Act. There has been no cross-examination of Ms. Alton or her findings. As a result, although I have identified some of her “findings” and “observations” above, they must be viewed with a significant degree of caution for the reasons I have elaborated. I am extremely troubled by the fact that under the guise (and mandate) of counselling the Centre proceeded to make clinical observations and/or express findings related to the Father. This is despite the fact that Ms. Alton noted that the Mother acknowledged her own failings in her relationship with Franky and the impact that her new partner would play in her ongoing relationship with her son. In the end, the evidence appears to reveal that Ms. Alton appears to have lost the confidence of both Franky and his Father as they do not wish to continue to work with the Centre. Franky has expressly indicated that they are biased, and they make him feel terrible (his words) at feeling the way he does.

[59] The Mother has been critical of the OCL’s role in these proceedings; she blames them for the 2022 Order where she agreed to a change in the children’s residency. She blames the Father for his “alienating behaviour” suggesting this is the basis of Franky’s views and preferences and she blames OCL counsel for encouraging the trial residency arrangement in 2022 which resulted in the Court Order of July 19th. As for Franky’s view and preferences she considers them “conscripted” and unreliable; she asserts that his Father has withheld Franky from her, she has been denied valuable parenting time and his views and preferences have been unduly influenced by the Father. The Father largely says the same thing about the Mother’s behaviour relating to Vincent. He blames her for his estrangement from Vincent and his son’s aggression towards him. Both parents complain that each has discussed various aspects of the case with the children in their care. For Franky, the Mother asserts she has been continuously disparaged by the Father leading to alienation and rejection issues. Her own evidence reveals she has taped at least one of the Father and Franky’s conversations which is a serious privacy breach. For the Father, he asserts that Vincent is expressing doubt about the outcome of the parents’ criminal proceedings; for Franky, the Father asserts the Mother told him that he (the Father) would lose in Court. Franky disclosed this particular communication to Ms. Mayotte. Other than the Mother’s assertions which mirror the Reflection Centre’s findings that the Father is incentivizing Franky’s behaviour there is no compelling evidence that Franky’s views and preferences have been conscripted or unduly manipulated by the Father. What they do reflect is that this is a 14-year-old adolescent under stress due to parental conflict and these long unresolved proceedings now some near two (2) years outstanding. His perception is that what he has to say is meaningless and futile in relation to both parents. He is unhappy with his Mother especially as he was required to attend for counselling before he could travel and compete in Prague. As an aside, this Court has difficulty comprehending the connection between a sporting event for a highly skilled athlete and the compulsion that he attend for counselling with his Mother before he could participate. This appears to have generated more resentment by Franky towards his Mother and his perception that she is interfering in his hockey career. For the Mother, this expression of resentment means that Franky’s Father is alienating her. In the end, I am not satisfied that the evidence rises to the threshold that Franky’s views and preferences are compelled or “cognitive distortions”. Franky has been consistent in his views and preferences. He wants to be “heard”. He has expressed what he thinks and wants. The question is what weight does this Court place on his views and preferences.

[60] The Affidavits before me provide little direct evidence from independent third parties who are nonparty aligned professionals. Hospital records relating to Franky’s May 13th hospitalization and Dr. Bruulsema’s report are merely attached as Exhibits to the Father’s affidavit. No police reports are filed related to the events of May 13th, 2023. Franky’s school reports have been attached as Exhibits. These documents would likely justify inclusion under s. 35 or 52 of the Ontario Evidence Act however no formal Notice was served. Another objective third party is the local Children’s Aid Society, who apparently have been involved from time to time with the parents and these children, however none of this evidence nor the results of their involvement were placed before the Court on this Motion. According to Franky he told the CAS worker how he feels about living with his Father, but this evidence is not before me. I find the hospital reports and Dr. Bruulsema’s findings provide critically important information about Franky, his emotional and behavioural functioning, the stress he expresses he is experiencing, the physical manifestations of that stress (i.e., a nosebleed), the conflict he experiences with his Mother and the thoughts of suicide that he has considered; but did not yet formalize. This is indeed weighty and compelling evidence from unattached third parties who have not taken a position in this litigation.

[61] The Affidavits on this Motion on the whole are nothing short of disappointing and provide very little assistance to the court. Much of their content is what the Mother or Father did to one another and how much they propose to hurt one another. The Mother’s Affidavit especially did not spend time or energy in analyzing Franky’s present needs and circumstances, his wants and preferences, his hockey aspirations, the relief that hockey and training apparently provide him and what specific arrangements she is prepared to put into place to ensure his hockey aspirations are not compromised should he be ordered in her primary care. The evidence seems to reveal that parenting Franky at this point involves a major commitment of time and effort in Franky’s hockey training and out of town and international sporting events. There are few details provided by the Mother on which specific school Franky will attend in New Liskeard, which of his former childhood friends will attend with him, whether this school provides the hockey and academic program that he feels is comparable with Scollard Hall in North Bay, what part time employment is available for him in New Liskeard and whether she can manage his extensive hockey commitments or how she will navigate the distance between Franky and his “girlfriend” and friends in North Bay. There are precious few details about the pros and cons of training with the New Liskeard hockey team when compared to the North Bay team. Sadly, much of what the Mother (particularly so) asserts is that Franky is hurting, that she is not responsible for his hurt and emotional upset, that he has been systematically alienated from her affections and parental authority by the Father, that this alienation extends to her family and new partner, that the events of May 13th were manufactured by the Father and that Franky must be separated from his Father and his life in North Bay in order to redeem her relationship with him. She relies heavily on the findings in the Reflection Centre report to support her position that she is the victim of parental alienation. Her focus is on the Father and his alienating behaviour; she appears to express little insight or appreciation of her own role in the conflict that her son is experiencing. As for the potential for conflict between Franky and his brother, she dismisses that out of hand as a result of a conversation she had with Vincent.

[62] My findings above should not suggest that the Father’s behaviour is not likewise blameworthy and deserving of commentary. The history of this litigation reflects that the Father apparently became so agitated over his criminal charges and the parties’ separation, that he apparently could not control what he was discussing with the children resulting in the temporary suspension of his parenting time (i.e., access) and restrictions on his cell phone use with them. However, at some point there was a significant reversal in his parenting fortunes when the July 19, 2022, Order granted him primary residency of both Vincent and Franky. He concedes he has spoken about the Mother in disparaging terms; but he explains he did so at a time when his relationship with Vincent started to fail. And he blames the Mother for this development. His Affidavit however does provide a more thorough picture of Franky’s schooling, his parenting plans for next year, Franky’s hockey commitments and activities, the Father’s commitment to “force” Franky to visit with his Mother (if that is what it takes) and the dilemma he feels about failing his son when he forces him to see his Mother and Franky’s resulting hopelessness. He expresses that he is prepared to engage in counselling for his son. What the updated Report from the Reflection Centre appears to reveal is that the Father became even more “agitated” following the events of May 13th that he was incapable of accepting that Franky is experiencing such a level of distress and conflict with his Mother that he is prepared to at least consider suicidal thoughts. Instead, the Father’s primary focus (at least where his Affidavit is concerned) is focused on the Mother, her own alienating behaviour and tactics, what she has done to harm his reputation and fortunes and the impact that the criminal justice system and this litigation has had on his life. He is adamant that he is not prepared to return to “counselling” with the Reflection Centre. He is displeased with their involvement. He is unhappy with their approach. He is especially displeased with what he considers their lack of initiative relating to Vincent.

[63] One obvious point that I must address is that despite my best efforts, I can locate no express finding by Justice Maille on either a temporary or interim basis or contained in his Orders or Endorsements that the Father is engaging in a pattern of parental alienation, whatever that term means or is defined to mean. Referring the parties and children for counselling falls far short of an express finding of alienation by a Court and especially so without a trial or oral evidence on the issue. In Children’s Aid Society of Toronto v. M.S., 2018 ONCJ 14 Justice Robert Spence put it best when he found at para 120 of his judgment that the entire construct of alienation is something which is a matter of considerable debate and discussion. Spence J. says this about the dilemma of labelling at paragraph 122 of his Judgment: There is considerable merit to the approach taken by Harper J. in focusing less on the label [and] more on the family dynamics. To do otherwise in this case is becoming lost in the weeds of concepts like PAS, or therapeutic reintegration, and forgetting what this Motion is all about. Harper J. in A.F. v. J.W., 2011 ONSC 1868 had found there were a number of psychologists who did not agree with the construct of PAS (Parental Alienation Syndrome) and found that focusing on the concept of parental alienation creates an environment that could lead to [a] narrow and limiting analysis of very complicated dynamics of family interaction that must be understood in order to find a solution that has the best chance of success. See paragraph 168 of A.F.

[64] I am left then facing a complex Motion, where none of the materials in support have been tested for cross-examination, where the Affidavits are conflictual and contradictory, where the evidence is incomplete and poorly marshalled, with few direct reports from independent professionals, where the evidence appears to reveal that each parent has engaged in ongoing conflict over their children and ultimately exposed them to that ongoing conflict, now resulting in what I would best describe as a strained relationship between the parents and children, where the children may well have “taken sides” in the dispute, and where the conflict now appears to extend to the brothers themselves. Moreover, there appears to be a serious concern that Franky may be engaging in suicidal ideation as a result of the stress he feels and the conflict he experiences with his Mother. As an example of this, the evidence appears to reveal that his Mother was disruptive and argumentative at the hospital on May 13th and one of her priorities appeared to be “not wanting the Father to speak to Franky.” Franky told the OCL that he overheard his Mother wanting his Father to be charged with a breach. Dr. Bruulsema puts it best when she asked the staff to allow Franky’s Father to speak with him as she had “not encountered any previous situations where a child would not be allowed to talk to their primary guardian when requested.” (See p. 3 of her Pediatric report). And as for the Father, according to the Reflection Centre updated report he was apparently “glad” the May 13th transition incident occurred as it was a negative reflection on the Mother, and he was not part of it. (See p. 5 of Updated report of May 23, 2023). It is evidence like this that leads me to conclude, similar to the learned Justices above, that Franky’s circumstances may well be a complex mix of family interactions that cannot be characterized as a finding solely based on parental alienation syndrome.

[65] Franky is a skilled athlete, doing exceptionally well in school, he studies both in French and English, his marks are excellent, he loves training and playing hockey, he has a part-time job in North Bay, a circle of friends and apparently a girlfriend there. His Mother wants this Court to remove him from his Father’s primary residency and transfer that care to her, with a plan that will have Franky living in New Liskeard, a community about a two-hour drive away from North Bay. This plan will separate him from his hockey team mates, his coach, his girlfriend, his school mates and the hockey team he wants to train and play with. His Mother proposes that some of his parenting time with his Father should be subject to recommendations received from the Reflection Centre (See para 9 of the Mother’s May 30 Notice of Motion). The evidence appears to support the conclusion that a change of residency will disrupt Franky’s day-to-day life as it has existed since July of 2022. It may create further conflict and upset for Franky, his relationship with his Mother and what appears to be a tenuous relationship with his brother. The evidence appears to reveal that Franky loves his Mother, but he is resentful of her, he wants to stay in North Bay with his Father, he feels supported there, he feels he should have a right to speak about what he wants and that visits with his Mom are “not going well” and there is conflict between them. The events of May 13th are a poignant example of the complicated dynamics at play. Moreover, the Applicant’s request seems to be primarily focused on the label of parental alienation syndrome.

Conclusions

[66] On the issue of whether the Mother should have the primary residency of her son Franky, the answer to that question is no. Her Motion to change his primary residency in her favour is dismissed. The evidence before me does not support the Mother’s request and it is not consistent with the child’s best interests as that term is defined. Moreover, it is not consistent with Franky’s stated views and preferences which I do not find conscripted or compelled and which I believe should be given considerable weight. I do not consider him in harm’s way if he resides with his Father, at least, not on the evidence before me. He is 14 years of age, and he should have a voice in what happens with his life and circumstances. The parties themselves gave that voice to their children when they negotiated a Consent that was incorporated in the 2022 Order that allowed a reversal of the parenting arrangements once the OCL was notified. In many respects of his life, he is excelling: sports, academics, work and socialization while he has been in his Father’s care. His Father’s plan for him in North Bay is a suitable one. The Father’s plan recognizes his needs and circumstances. I am concerned about his stress, what appears to be a thought pattern about suicide and his ongoing relationships with his Mother and brother. He likely requires counselling to address the stress and anxiety he is experiencing as a result of this litigation and the unresolved family dynamics at play. He has been forced to engage in counselling with his Mother; he has been forced to visit with her. I find that he is caught in a complex social situation, as Dr. Bruulesma noted. At the very least he deserves some element of stability and permanency in his life. He should be able to pursue his aspirations and dreams about high level hockey. I repeat, the evidence appears to suggest he is experiencing some degree of stress and considerable anxiety and his parents should be working together to seek out a counsellor or therapist for him and stop trying to hurt one another.

[67] On the issue of whether Franky should be required to continue counselling with the Reflection Centre, the answer to that question is no. The Mother’s request at paragraph 12 – 24 of her Notice of Motion is dismissed. I am reluctant to “force” Franky, a 14-year-old adolescent, to engage in counselling where he doesn’t think his voice is heard, where the counselling is open and non-confidential, where his privacy interests are not protected, where the counsellors have become “positional” in the therapy they propose to provide and where the evidence is unclear how or why this particular person or place was selected with few if any directions and conditions provided by the Court. There is simply no evidence before me as how the Court was involved in this process of selection at all. As I stated above, interim and final therapeutic counselling orders, including reunification therapy, can be a very effective tool to help broken families and children in particular as they transition through emotional turmoil and move forward in a healthier way. But when it is forced on an adolescent against their will it may be harmful. As the jurisprudence reflects, such orders should be made sparingly, on compelling evidence, adequately supported by a detailed proposal identifying the proposed counsellor and what is expected and with appropriate direction to the counsellor/therapist. The evidence is not before me as to how or why the counselling orders were made. They do not appear to have been made after a full trial on the merits or an express finding by the Court. There is also the question of whether Franky’s consent to such counselling applies or not. I cannot locate where any of these conditions were satisfied when the Reflection Centre was retained and counselling was ordered by the Court. I am concerned about the level of stress that Franky is experiencing but the question of who and how that counselling is to be provided needs to be carefully analyzed.

[68] On the issue of whether there are any additional aspects of the incidents of decision-making/residency and parenting time that should apply (i.e., what parenting conditions should apply, if any)? I am loathe to change most aspects of the final and interim provisions of Justice Maille’s Orders of August 30, 2021, and July 19, 2022 (and pursuant to the parties’ Consent) without a full hearing on the merits (i.e.. trial or focused hearing) and solely on the Affidavits and other evidence before me. As I have expressed, the evidence on this Motion is problematic. It is incomplete, poorly marshalled, contradictory and conflictual and all without benefit of cross-examination or oral evidence before the Court. I also have no formal cross Motion before me by the Father setting out an updated parenting time regime for the Mother or a proposal by the Mother herself. At the same time, I am of the view that the length and complexity of the July 19th Order and its numerous and circumscribed parenting covenants appear to be an opportunity for continued ongoing conflict between the parents. The evidence also seems to reveal that Franky is now an adolescent who is developing his own sense of self and self-interests and these pursuits (i.e., friends, work, sports, girlfriend) may well interfere with the parenting time he has with his Mother and especially so as he will now be residing in a community (i.e., North Bay) some distance away. I am concerned his hockey activities and commitments and training may well interfere with his Mother’s parenting time. As a result, I am not inclined to vary or change the July 19, 2022 Order as it relates to parenting covenants and incidents of parenting but I do recommend that the parties and counsel either engage in negotiation or attend for mediation before a qualified professional (and not the Reflection Centre) together with the assistance of the OCL to address an updated parenting time regime for Franky and his Mother pending trial. Failing agreement, this issue should be revisited by the Court so that there is a current and updated parenting time regime in place for Franky and his Mother.

[69] On the issue of the alleged breaches of the Court orders and the application of Rule 1 (8) remedies: I am most reluctant to “enter into the fray” without the benefit of hearing directly from the parties themselves especially if the test before me includes findings that the offending behaviour alleged against the Father is chronic, deliberate, willful and intentionally non-compliant. Words like deliberate, willful and intentional require some degree of planning and calculation. With this request the Mother relies heavily on her own recollections and the findings of the Reflection Centre. I have previously addressed the frailties of the Affidavits in this matter. I have previously addressed the frailties of “open” “non-confidential” counselling offered by the Reflection Centre and their “positional” findings. With this motion, I have no opportunity to assess the quality of the Centre’s observations and the hearsay statements they attribute to the Father and the appropriateness of their findings. My same hesitation applies to the numerous text messages exchanged between the parties. None of this evidence has been authenticated for admission on this Motion. Further, I am ever mindful of Justice LeBel’s credibility findings related to the Mother in the context of the criminal proceedings in assessing whether it would be “safe” and “appropriate” to proceed on the Mother’s request at this time and on Affidavit evidence. I conclude that it is not appropriate for the Court to take these steps at this time and on this record before me.

[70] On the question of costs, I can be approached by counsel on this issue and will issue Directions in the event this claim is made.

Accordingly

[71] The Applicant Mother’s Notice of Motion of May 30, 2023, and her claims therein shall be dismissed.

[72] On an interim basis and pending trial or final disposition, Francis Daniel Popkie (“Franky”) shall reside primarily with the Respondent Father in North Bay and will have parenting time with the Applicant Mother in accordance with the terms of Justice Maille’s temporary order of July 19, 2022, unless the Applicant Mother’s parenting time is otherwise varied in accordance with the terms of this Order.

[73] The child Franky shall not be required to attend for counselling with the Reflection Centre of Barrie, Ontario.

[74] The Applicant Mother and the Respondent Father shall endeavour to canvass Franky’s views and preferences at all times relating to their decision-making authority and parenting times;

[75] The Applicant Mother and the Respondent Father shall endeavour to negotiate and/or mediate the issue of updating Franky’s mother’s parenting time pending trial failing which this issue can be returned before this Court for review and/or variation;

[76] For the sake of clarity paragraphs 3, 6, 14 and 27 of the Order of Justice Maille of July 19, 2022, shall be varied so that any reference to a “trial order” or “trial basis” or “trial period” is eliminated.

[77] For the sake of clarity paragraph 10 of the Order of Justice Maille of July 19, 2022, shall be varied so that this Order shall not be variable without a material change in circumstances affecting the best interests of the child Franky.

[78] For the sake of clarity, paragraph 12 of the Order of Justice Maille of July 19, 2022, shall apply to the child Franky only.

[79] For the sake of clarity, paragraph 27 of the Order of Justice Maille of July 19, 2022, and his Endorsement of November 14, 2022, shall be varied so that the Applicant Mother and the Respondent Father shall use their best efforts at securing individual counselling for Franky so as to relieve his stress and to address his ongoing emotional wellbeing. This counselling shall be conducted on a closed and confidential basis. Franky’s counsellor shall not be a compellable witness, nor can the counsellor’s clinical notes be produced unless pursuant to a Judge’s order.

[80] For the sake of clarity, all other provisions in the July 19, 2022, order shall remain in full force and effect unless otherwise varied.

[81] Costs on this motion can be the subject of argument before me. Counsel should schedule a time and date with the trial co-ordinator if this is necessary.

Dated at Windsor this 10th day of August 2023.

Justice Sharman S. Bondy