COURT FILE NO.: FS 431/10

DATE: 20120203

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

A.F.

Applicant

– and –

D.G.1

Respondent

On His Own Behalf

On her Own Behalf

Z. Handysides, Counsel for the Respondent (only for testimony of Dr. Goldstein)

HEARD: November 7, 8, 9, 2011 & January 16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 30, 31 & February 1, 2012

REASONS FOR JUDGMENT

a.j. goodman j.

INTRODUCTION

[1] This is a most troubling and complex case involving two young children who are demonstrating significant behaviour problems and whose general well-being is in jeopardy. Added to this mix are allegations of sexual abuse, actual or potential psychological and physical harm towards the children; coupled with disassociated or disorganized attachment issues and mental health concerns with respect to both parents.

[2] The fundamental issue before this court is custody and access.

[3] The applicant, A.F. (“the father”) and the respondent, D.G.1 (“the mother”) were married on July 31, 2004. They have two children, X.F.F., born [..], 2007 and S.R.F., born […], 2008, (“the children”). The parties separated on October 11, 2009. Since the date of separation, the children’s primary residence has been with their mother. The father has had limited and sporadic supervised access to the children.

[4] This litigation has been outstanding for several years, in the course of which the parties have pursued and obtained various types of orders for relief.

[5] The parties have agreed as to their respective incomes for support purposes, based on their respective 2011 earnings. Mr. A.F.’s annual income is $88,193, and Ms. D.G.1’s annual income is $79,731.

[6] The remaining contested issues of equalization, post separation adjustments, spousal support, as well as other consequential collateral relief have all been resolved by the parties during the course of this trial. The outstanding question of child support and s. 7 expenses will emanate from this Court’s determination of custody and access.

[7] The applicant commenced this action on January 22, 2010 and the respondent filed an answer on March 21, 2010. Both parties filed amended pleadings and numerous motions for interim relief, including but not limited to an interim order for custody, supervised access, an assessment, and an order pursuant to the Hague convention.

[8] On January 22, 2010, Dunn J. granted the applicant’s ex parte motion and ordered that mother return the children to Ontario forthwith.

[9] On February 18, 2010 Hourigan J. ordered, inter alia, interim sole custody to the respondent and supervised access for Mr. A.F.. Based on the best interests of the children, Hourigan J. ordered that an assessment be conducted by a qualified psychiatrist or psychologist. On February 24, 2010, Dr. Sol Goldstein was appointed by the court to conduct an assessment pursuant to s. 30 of the CLRA.

[10] On April 22, 2010, the parties formally engaged Dr. Goldstein to conduct this assessment and to report his findings and recommendations with regard to the best interests of the children, X.F.F. and S.R.F..

[11] On April 19, 2010, in a lengthy endorsement, Quigley J. found that the respondent misrepresented the situation before Hourigan J. and he called into question the factual foundation put forward by the respondent in her efforts to try to limit the father’s access to the children. Justice Quigley ordered enhanced but supervised access for the applicant.

[12] At a case conference on May 20, 2010, the parties entered into a consent order and the matter was placed on the trial blitz for November 2010. On October 6, 2010, the respondent was granted an adjournment of the trial.

[13] On December 15, 2010 the parties entered into a consent order. In this detailed consent the parties agreed, inter alia, “to work with Carol Jane Parker and her associates at the Willow Centre... and if deemed necessary by Ms. Jane -Parker (sic) and with a view to transitioning to unsupervised access.”

[14] On March 24, 2011, the parties entered into a consent order in accordance with the applicant’s parenting plan, as amended. Justice Coats noted that the respondent seemed to want to withdraw from the consent entered into. However, Coats J. in her endorsement confirmed that the respondent agreed with the consent filed. The trial was adjourned to the November 2011 blitz list.

[15] Dr. Goldstein provided his February 7, 2011 report and update report of August 8, 2011 to the parties.

[16] Justice Gray heard two motions during the months of September and October 2011. On the latter occasion, Gray J. denied the respondent’s request for the conduct of another assessment and for an adjournment of the trial.

[17] The trial commenced on November 7, 2011. On November 9, 2011, during the course of Dr. Goldstein’s testimony in-Chief, the trial was interrupted due to information being provided to the court that the Peel Children’s Aid Society (CAS) had just commenced an investigation into concerns raised by the respondent. The trial was adjourned for two months to permit all of the parties, including the CAS and the police, to complete their task and for Dr. Goldstein and all of the participants to assess the information and prepare for trial.

POSITION OF THE PARTIES

[18] The applicant seeks sole custody and residency of the children and adopts all of the recommendations as found in Dr. Goldstein’s update report of January 3, 2012. He submits that the respondent have no contact with the children for a short duration while she obtains the therapy required to deal with her issues. He submits that matter be revisited in approximately 6 months with the view to potentially permitting the respondent’s integration back into the children’s lives.

[19] The respondent seeks sole custody with no change in residency, schooling or daycare. She submits that the applicant continues to have supervised access to the children but only through a supervised access centre or through directed therapy. She submits that the children require further extensive assessments and counseling or treatment. She submits that the applicant must obtain a clear diagnosis and seek the necessary treatment to deal with his mental health issues. She argues that there ought to be no change to the current access regime until all of the safety issues and sexualized behavioral concerns of the children have been fully answered.

THE EVIDENCE AT TRIAL

[20] This is a fact specific case and it warrants a much greater inclusion of some of the relevant testimony and evidence into my reasons for judgment. While I have taken into account the whole of the evidence, I have drawn attention to that evidence and to those particular instances that form the central foundations for my findings.

THE APPLICANT’S CASE

Mr. A.F.

[21] Mr. A.F. testified that he is 41 years old and is a full-time French Immersion teacher with the Halton District School Board. The date of the marriage was July 31^st, 2004. They have two children, a son X.F.F. born […], 2007 and daughter S.R.F. born […], 2008. He currently resides in Burlington and he confirmed that the date of separation was October 11, 2009. By way of background, Mr. A.F. advises that both he and Ms. D.G.1 are teachers and that they met in 2001. Mr. A.F. has an extended family in Quebec City and is of French Canadian background. When the children were born, Ms. D.G.1 would stay home with the children, and at the outset of the marriage they got along very well. Mr. A.F. described the daily routine when the children lived with both parents in the matrimonial home. Mr. A.F. testified that he was very tired at the end of the work day and perhaps less patient with the children, especially with X.F.F., who required more attention.

[22] Mr. A.F. saw his family doctor starting in 2003 regarding issues of energy depletion and depression. He was prescribed medication that caused him to become irritable and may have altered his personality. Mr. A.F. testified that he was far from perfect and that at times he would tense up and later releases his tension through various coping mechanisms. He testified that he had difficulty in being around crowds and needed to have his own space, but he did not express any negative reaction towards the children and at no time did he ever abuse the children. Mr. A.F. testified that he tended to be a perfectionist. He recognized that he required counseling and treatment to deal with his tension, stress and psychological issues. In December 2008, he went to see his family doctor and a referral was made to Dr. Layne, a psychiatrist.

[23] Mr. A.F. testified that Ms. D.G.1 described his behaviour as “rages”. Mr. A.F. did not necessarily agree with her terminology of “rages” but agreed that he had issues in coping with the family dynamic at that time.

[24] Mr. A.F. testified as to his visits with the various psychologists in 2008 and 2009. He testified that he began seeing Dr. Layne on July 8, 2009 and continues to see her routinely until present day. He testified that Dr. Layne has a working diagnosis of him of Bipolar Disorder II. Dr. Layne prescribed Seroquel. Mr. A.F. testified that throughout the summer and fall of 2009 things were improving. However, he testified that he was not giving what Ms. D.G.1 needed in the marriage, and the relationship was deteriorating by the fall of 2009.

[25] During the course of his testimony, Mr. A.F. conceded that Ms. D.G.1 was a good mother and was helpful to the children at all times. Mr. A.F. denied any abuse of the children, including certain events in October 2009 among other dates, as described to him in affidavits provided by Ms. D.G.1 or her mother.

[26] In October 2009, Mr. A.F. testified that Ms. D.G.1 decided to go to England to visit her parents. Mr. A.F. offered to vacate the matrimonial home, but later agreed that it was best for Ms. D.G.1 to go to England with the children so that he could deal with some of his psychological issues. While he was informed about the trip the day prior to Ms. D.G.1’s departure, Mr. A.F. felt that it would be a good trip for the children and for his wife and he knew his family would be safe. Mr. A.F. helped them prepare to go to England and his intention was to join them several weeks later. On October 11, 2009, Ms. D.G.1 and the children left for England and when Mr. A.F. came home; to his surprise he saw a note left on a whiteboard with respect to his wife’s view of their marital situation.

[27] Mr. A.F. testified that he called his children every day and after a few weeks Ms. D.G.1 became evasive and advised him that the children did not want to talk to him. In November 2009, communication to the children was solely through email. He was not provided with any answers as to the children’s expected return date back to Canada. He testified that while Ms. D.G.1 was away in England his stress level decreased because he felt he was not taking care of her emotional needs.

[28] Mr. A.F. testified that in December 2009, he still believed that Ms. D.G.1 was going to return back home with the children. Meanwhile, in December he was informed by Ms. D.G.1 that he should not come to England to visit the children. By late December 2009 or January 2010, Mr. A.F. testified that he was beginning to believe that Ms. D.G.1 and the children were going to remain in England and felt that she may have kidnapped the children. He made a complaint to the police and he contacted counsel and brought a motion to court. Prior to that motion, Ms. D.G.1 raised sexual abuse allegations against Mr. A.F.. As a result of those allegations, the Halton Regional Police and Halton CAS were involved, along with the authorities in the U.K. He testified that no charges were laid and the CAS closed their file. He testified that he did not know that Ms. D.G.1 had actually returned briefly to their matrimonial home in Burlington in mid-January 2010.

[29] On February 7, 2010 the children came back from England. Having not seen his children for four months, he visited his children on February 9 and 13, 2010 and these visits were all supervised as requested by Ms. D.G.1. On February 18, 2010, before Hourigan J., Ms. D.G.1 raised several allegations of sexual abuse, verbal abuse and physical harm towards the children. Mr. A.F. testified that he was shocked by those allegations. Mr. A.F. testified that many similar allegations were raised by Ms. D.G.1 during 2010 and 2011, all of which have resulted in the CAS and police closing their files with no charges laid. Mr. A.F. also testified that he was not aware of the status of many of the investigations at the time that they had been initiated.

[30] Mr. A.F. testified that he met with Dr. Goldstein through 2010 and attended the Willow Centre for testing and counseling. In particular, he dealt with issues of attachment and underwent psychological testing with Dr. Collins. He testified as well that he had extended absences from the children during Christmas of 2010 based on the recommendations from the therapists. He testified that he cooperated fully with the Willow Centre’s directions in their conducting the assessments. At one point, Mr. A.F. advised that at least four therapists were working with the family.

[31] Mr. A.F. testified that after nine weeks of not seeing his children, on March 11, 2011 he had a visit with his children in a therapy session. All of these visits were supervised. During the course of 2011, he testified that Ms. D.G.1 moved out of the Halton jurisdiction to a location which he does not know and still does not know her current address.

[32] In August 2011 the Children’s Aid Society of Peel was called by Ms. D.G.1 who again raised allegations of abuse by Mr. A.F.. As a result, he again had no access to the children in August and only saw his children on September 1, 2011 at the Willow Centre. It was only after the September 21, 2011 motion that his supervised visits outside of the Willow Centre were reinstated.

[33] He testified that at all times Ms. D.G.1 resisted any change to his access including his proposed parenting plan. Mr. A.F. testified that he followed all the treatment plan regimes and counseling sessions and that all the therapists have helped him become a better parent. He reiterated that his children are very happy to see him and he had never abused his children and suggested that Ms. D.G.1 either misinterpreted his actions or for other reasons has alienated his children from him. The police, doctors and Children’s Aid Societies have not raised any concerns to him about his parenting skills or him being a good father.

[34] In cross-examination, Mr. A.F. denied having “brain blanks” and suggested that he tends to look for a word or an answer and may hesitate at times, as English is his second language. He testified that he was more irritable with certain medications. He admitted occasionally acting out, but never abusing or hurting the children. He testified that sometimes he felt crowded with individuals and that this would cause him to tense up, sometimes clenching his face or fists. He admitted that he coped with his anxiety or tension by re-grouping, walking away and later coming back. He testified that he now has less stress due to the respondent being out of his life. He admitted that perhaps he had stress or “rages” when he was alone, and when he was upset he would hit walls or things, yet he denied any “real rage” and absolutely no anger was ever directed towards the children.

[35] When asked about the children’s unpredictable behaviour, he admitted that the unpredictability could cause him to become tense or anxious. He testified that he realizes that he had high expectations of himself and of others and has now learned the appropriate coping mechanisms.

[36] Mr. A.F. testified about how he dealt with X.F.F.’s night terrors and other behaviours exhibited by his children. He denied any inappropriate sexual contact with X.F.F., including a specific incident on a bed as described by the maternal grandmother. He denied any other abuse or any misconduct when confronted by the respondent about various play activities. He testified that Ms. D.G.1’s interpretation of his “finger in the bum crack” play with X.F.F. was misguided and he described the activity as a family prank. However, he made efforts to cease such activity when requested to do so by Ms. D.G.1.

[37] Mr. A.F. was questioned about Dr. Singh’s report and those of the other professionals. Mr. A.F. was questioned about his contention that he believed that Ms. D.G.1 kidnapped his children. He stated he did not want to believe that there was the possibility of abduction until the end of December or early January 2010.

[38] Mr. A.F. testified that in trying to figure out his behaviour he has been able to do so with the help of professionals. He testified that does not have a personality disorder; rather, he has certain personality traits. In reply, Mr. A.F. produced a photograph depicting his outing with the children on October 6, 2011.

Courtney McCabe - Peel CAS

[39] Courtney McCabe is employed with the Peel Children’s Aid Society. She is a social worker and deals with child protection issues. She is the primary worker on this case as a result of Ms. D.G.1’s initial contact with the Society. She was informed about an audiotape recording depicting certain events involving the children’s behaviour during the evening of October 6, 2011.

[40] Ms. McCabe described how the Peel CAS and the Halton Police became involved and she explained the concerns raised by Mrs. D.G.1 to the Society. She investigated these concerns and on November 4, 2011 she met with Ms. D.G.1 and a police officer. Ms. McCabe testified that she only heard approximately 15 minutes of this audiotape. She invited Ms. D.G.1 to follow up with the other portions of the tape and to attend a meeting; however, there was no follow up.

[41] On November 7, 2011 Ms. McCabe received another related complaint about the audiotape recording of the children from Carol Jane Parker, a therapist at the Willow Centre. Ms. McCabe testified that in her experience she found the October 6, 2011 taping of the children was inappropriate. She testified that it was shocking to her to leave children unattended in a room for 30 to 45 minutes, with the evolving activity as heard on the tape. She was advised that Ms. D.G.1 was coming in to check on them every five to seven minutes.

[42] Ms. McCabe testified that she mentioned to Ms. D.G.1 that it sounded like the mother was speaking to the children while they were sleeping and attempting to provide leading questions to the children. She believed that not only was it inappropriate to make these suggestions to the children about the father’s behaviour, but that it was unacceptable to record them at all given their ages, and to allow certain sexualized activity to continue without adult intervention. In her opinion and as a representative of the CAS, the children were not at immediate risk in the mother’s care. However, the CAS did not approve of and were concerned about the audio and the lack of supervision.

[43] Ms. McCabe discounted concerns of abuse or other misconduct as reported to her by Ms. D.G.1. She advised that the focus of the CAS investigation was not on the father’s parenting or his dealings with the children, but rather on Ms. D.G.1’s mental health. Ms. McCabe disagreed with Ms. D.G.1’s assertions that that the children were unhappy to see their father when he had access to them. She testified that she spoke to Ms. D.G.1 about Ms. D.G.1 seeking or receiving counselling to deal with her issues. The witness understood that Ms. D.G.1 was not comfortable with the Willow Centre, so other referrals were provided. In re-examination, Ms. McCabe believed that the reported scratches, marks and other alleged injuries on S.R.F. were normal or very minor in nature.

[44] Ms. McCabe was recalled by the respondent to testify. The questioning centered on the tapes presented to her by Ms. D.G.1 and her recollection of her testimony regarding inappropriate questions. Ms. McCabe testified that she heard many different recordings which were presented to her at the meeting of November 4, 2011, and she may have confused which tape provided specific information. She recalls that the inappropriate questioning was X.F.F.’s mother leading or suggested responses to him while he was half asleep. Ms. McCabe also confirmed receipt of a binder of information from Ms. D.G.1 and some transcripts. Ms. McCabe confirmed that she heard about 40 to 50 minutes of audio recordings, but only 13 or so minutes of the October 6, 2011 event.

[45] Ms. McCabe testified that she spoke with Mr. A.F. during her last attendance at court. She discussed with him a time to set up a visit with the children. As a result, she met with the children during Mr. A.F.’s access visit on January 26, 2012. Ms. D.G.1 inquired as to why she was not advised of this visit with the children, to which Ms. McCabe replied that she had attempted to set up a time with her but that she offered various excuses as to her available dates. Ms. McCabe testified that, pursuant to the CAS mandate, she is required to visit with the children at least once every 30 days. Since Ms. D.G.1 would not accommodate her, she engaged the cooperation of Mr. A.F. and set up the visit. Ms. McCabe testified that during this recent visit, the children seemed comfortable with the father and she confirmed that the Peel CAS have no child protection concerns. I find that Ms. McCabe was very knowledgeable about the family’s situation and testified in a credible and very fair manner.

Ms. Karina Zorzella

[46] Ms. Zorzella is a therapist at the Willow Centre. She was a clinical psychologist in Brazil and she has training in child psychotherapy and has undertaken graduate studies in clinical psychology.

[47] Ms. Zorzella’s involvement in this case was as a therapist and she worked with the applicant on a frequent basis. She explained the goals of the therapy and the progress that the applicant made during the course of his involvement with her. She also was providing therapy to X.F.F. and she described her observations of the sessions with him. In cross-examination, she disagreed with Ms. D.G.1’s observations and conclusions about X.F.F. and the therapy.

Ms. Carolyn Rumble and Ms. Joanne Irvine

[48] Ms. Rumble and Ms. Irvine are retired educators. They volunteered to be adult supervisors for Mr. A.F.. Over the course of two years, individually, they had supervised the applicant with his children. Both witnesses testified as to their observations of Mr. A.F. with respect to his interaction with his children. Both witnesses provided a glowing review of Mr. A.F.’s involvement with his children and the activities that they all enjoyed during the limited supervised access visits. They described the various activities, the children’s enjoyment and the degree of care provided by the father. In cross-examination, they both admitted that, at times, X.F.F. was reluctant to leave his mother and go with his father but that reluctance waned once the access visit commenced. Both witnesses described their limited observations of X.F.F. and S.R.F. during the pick-up of the children. Despite the respondent’s questioning about their focus and abilities to adequately supervise Mr. A.F., I find that both witnesses undertook their supervisory responsibilities seriously and with due regard to their role. They testified in a candid and forthright manner and I accept their evidence.

Dr. Elizabeth Layne

[49] Dr. Layne is the applicant’s psychiatrist and Mr. A.F. was referred to her by Dr. Singh, Mr. A.F.’s family doctor. She has been seeing the applicant regularly over the course of the past 2 1/2 years. She testified as to her initial assessment, the information collected from various sources, her treatment regime and her working diagnosis.

[50] Dr. Layne testified that her working diagnosis of Mr. A.F. is that of Bipolar Disorder II. She outlined the course of her treatment with the applicant, the history of the various medications offered to the applicant and her meetings with Ms. D.G.1 during the course of Mr. A.F.’s treatment.

[51] Dr. Layne testified that the separation between husband and wife was beneficial for Mr. A.F. as that marital relationship was causing him distress and adversely affecting his mental state. Dr. Layne testified that Mr. A.F.’s mood is stable and that she no longer has any concerns about his mental health status. The applicant has followed all treatment programs and he continues to take the appropriate medication. In her opinion, Mr. A.F. has the tools and employs the appropriate coping mechanisms to deal with his psychological issues.

[52] In cross-examination, Dr. Layne disagreed with many of the assertions put before her by the respondent. Dr. Layne testified that she disagreed with Dr. Collins’ psychological testing results with respect to Mr. A.F.’s mental state. She emphasized that the Bipolar II diagnosis was only a working diagnosis and that a final and firm diagnosis has not yet been determined. She disagreed with Ms. D.G.1’s characterization and utilization of various terms used to describe the applicant’s psychology such as “mind blanks” and “rage”.

[53] She acknowledged receipt of Ms. D.G.1’s concerns about Mr. A.F.’s behaviour. However, Dr. Layne disagreed and disputed the validity of all of Ms. D.G.1’s characterizations, conclusions or perceived diagnosis regarding Mr. A.F.’s mental state. Dr. Layne also testified that she had a sense or felt pressure from Ms. D.G.1 to “fix him”. Dr. Layne has no concerns about the applicant being with his children, although she has never seen Mr. A.F. alone with his children. She testified that had she ever had any concerns or if there was a risk of harm, she would have made her concerns known to the appropriate authorities. Dr. Layne emphasized that such was not the case here.

[54] Dr. Layne has been routinely and consistently involved with Mr. A.F. for several years and has a direct and informed sense of his mental health. I accept Dr. Layne's evidence without hesitation and find her testimony to be fair and credible.

Dr. Collins

[55] Dr. Collins is a registered psychologist and has been involved in child and adolescent psychology for the past 25 to 30 years. He is the clinical director of the Willow Centre in Toronto.

[56] He testified that he met the parties on May 31, 2010 as they were referred to him by Dr. Goldstein. Dr. Collins described the nature of the therapy at the Willow Centre with Mr. A.F., the children and Ms. D.G.1. Mr. A.F. and the children underwent individual and combined therapy, and while Ms. D.G.1 was to commence individual counselling, that did not occur for financial and other reasons. The therapy continued with the parties at the Centre over the course of the past two years, until November 2011.

[57] Dr. Collins testified as to the various psychological testing completed on the parties in 2010. At the time of the applicant's initial testing, Dr. Collins had concerns about Mr. A.F.’s mental health status. He found that the applicant had significant disturbances; he was hyper-vigilant, had paranoid ideation, anxiety, a fragile sense of self, spiritual hallucinations, some self-preoccupation and oversensitivity, and the need to accommodate the needs of other people. The extensive therapy offered to Mr. A.F. focused on coping strategies.

[58] While Dr. Collins acknowledged that he had some concerns about Mr. A.F. at the outset, those concerns have diminished with the ongoing therapy. Dr. Collins also agreed that there is a difference of opinion between Dr. Goldstein's and Dr. Layne’s assessment of Mr. A.F.’s mental health; which is at odds with his interpretation of the psychological testing results conducted on Mr. A.F. during the early stages of the assessment.

[59] Due to the concerns raised by Ms. D.G.1 and the initial psychological testing of Mr. A.F., Dr. Collins believed that an assessment of the children’s attachment to the parents would be beneficial. Thus, the Willow Centre’s role changed from one of “assessment” to that of “therapy” for attachment.

[60] Over the course of time, Dr. Collins opined that he still believes Mr. A.F. has some core issues but not of a sufficient magnitude to raise any concerns. Dr. Collins testified that Mr. A.F. has gained the self awareness and the degree of control to enhance his capacity to deal with any parenting issues arising from the behaviour of the children.

[61] Dr. Collins testified about the psychological testing of Ms. D.G.1. He testified that Ms. D.G.1 tends to project angry feelings to others, has some paranoid ideation, she desires to avoid her own conflict and has a risk for angry outbursts when overwhelmed. In the course of stress, her thinking is confused and there is a fair amount of anxiety and conflict within her. While she tends to take in more information which may impact on her decision making, Ms. D.G.1 has solid ego strengths and other positive personality traits.

[62] In cross-examination, Dr. Collins was asked extensively about the informed consent to treatment. He also affirmed that there were serious mental health concerns with X.F.F.'s disorganized attachment.

[63] Dr. Collins testified about the various conversations he had with Ms. D.G.1. Dr. Collins confirmed Ms. D.G.1’s reporting to him of her observations of disturbing behaviour exhibited by both X.F.F. and S.R.F.. Dr. Collins disagreed with Ms. D.G.1’s claim about his continual non-response to her unanswered questions or concerns. He testified that Ms. D.G.1 was provided with opportunities to ask questions and, in fact, the team at the Willow Centre provided her with a comprehensive overview of all aspects of the treatment during various meetings or discussions.

[64] Ms. D.G.1 suggested that the role of the Willow Centre was to ensure that she would be seen as the “protector” of the children. Dr. Collins disagreed and replied that the goal of treatment was to ensure that the children would have the appropriate attachment to their parents and to help the children experience both parents as a safe haven.

[65] Dr. Collins testified about his concerns regarding the audiotape recorded on October 6, 2011 and presented it to Ms. Parker, one of his therapists. He never actually heard the tape but the contents were reported to him by Ms. Parker. As a result of those concerns, they called the Children's Aid Society. Dr. Collins’ primary concern centered on an adult not intervening during the course of the extended activity revealed on the audiotape.

[66] Dr. Collins’ other concern was that Ms. D.G.1 believed that the father had sexually abused his children. He testified that Ms. D.G.1’s view of Mr. A.F. appears to be fixed and delusional in that she is trying to find some evidence of sexual abuse of the children by the father. He testified that, according to the Willow Centre therapists and psychologists, there was no evidence of any sexual or other abuse against the children.

[67] He testified that with respect to the therapy, Ms. D.G.1 was initially happy with the therapists at his centre, but over the course of time, she appeared to lose trust with them. As a go-forward approach, Dr. Collins testified that the Willow Centre can assist both Mr. A.F. and the children in continuing therapy but cannot provide therapy to Ms. D.G.1 due to her lack of trust.

Ms. Carol-Jane Parker

[68] Ms. Parker is a trained psychotherapist and works at the Willow Centre. The parties were referred to her for psychological testing by Dr. Goldstein. Given the age of the children and various allegations raised to her, she recommended a more extensive assessment with the focus being on “attachment" issues. Ms. Parker described the various testing that was conducted with all of the parties.

[69] Ms. Parker testified that neither of the children had a secure relationship with either parent. There was “attachment disorganization”. Ms. Parker explained this concept and discussed her initial concerns. Given the allegations and the history of the family dynamic as presented to her at the outset, the treatment plan initially involved the mother and children in psychotherapy and the complete elimination of the father from the children. Hence, Mr. A.F. was totally removed from the children for a period of approximately two months. This was done to determine whether the children were being affected by their father during the course of therapy. At the end of nine weeks, the father was reintroduced to the children under supervision. The goals were to help both parents with therapy to be more responsive and reflective to the children's needs.

[70] Ms. Parker emphasized that the issue of attachment in this case is not to be confused with a “disorder”. Ms. Parker described in detail the type of treatment and the analysis of the treatment during these sessions. Ms. Parker’s focus was on the parents’ ability to be reflective to the needs of the children. She was able to review the children’s subtle activities and play to determine whether the children were displaying any symptoms of disorganized attachment or other behaviours. Ms. Parker confirmed that at no point during her extensive assessment and treatment did the children demonstrate any fear of their father. The children greeted Mr. A.F. warmly and were physically close to him and wanted to play with him. Mr. A.F. provided the appropriate feedback to them.

[71] Ms. Parker testified that there were many discussions with Ms. D.G.1 and it seemed that there was discontent with much of the information provided to her. Ms. D.G.1 expressed to her that she did not feel that the therapists were doing an adequate job in dealing with her concerns or in finding any abuse of the children. Ms. Parker testified that the mother had advised her that she had unanswered questions about the father's mental health, yet Ms. D.G.1 was provided with various opportunities to make the appropriate inquires. Ms. Parker’s opined that that the mother and maternal grandmother did not wish to cooperate with the centre and it was obvious to her that Ms. D.G.1 and her mother had lost trust in her and in the other therapists.

[72] Ms. Parker testified that the mother raised many allegations and accusations of sexual abuse by the father towards the children. She was provided with comprehensive written materials. Ms. Parker testified that she did not see any sexualized behaviour exhibited by the children or anything else to indicate that the children had been harmed by the father. She concluded that what was present before her were two disturbed young children with disorganized attachment.

[73] Ms. Parker testified that Ms. D.G.1 truly believed that the children would never be safe with the father, nor were the children safe during the supervised sessions with the therapists.

[74] With respect to the audiotape presented to her by Ms. D.G.1 at a meeting on November 5, 2011, Ms. Parker listened to about 30 minutes of the tape. Ms. Parker testified that she was extremely alarmed and traumatized upon hearing this tape. She testified that the mother knew that when X.F.F. returned home from the father’s care, and asked his mother to “sniff his bum”, which demonstrated some sexualized behaviour. She added that Ms. D.G.1 knew that there was a direction from the Centre that both children were not to be left alone unattended. Why then would Ms. D.G.1 and her mother secret an audio recorder in the room and leave the children alone for a significant period of time without adult supervision? She testified that she believed that the children were put into a harmful state, while X.F.F. was asking S.R.F. to do inappropriate sexual acts. In her view, this was an abuse of both siblings and, as a result, she spoke to her superiors and she informed the Peel CAS about her concerns.

[75] In cross-examination, Ms. Parker disagreed with most of Ms. D.G.1’s questions with regards to therapy. Ms. Parker confirmed receiving Ms. D.G.1’s numerous observations and concerns about the children's bizarre or problematic behaviour. She agreed with Ms. D.G.1 that initially, given the serious allegations about the father’s abuse and conduct, she firmly believed that Mr. A.F. could not be left alone with the children. However, Ms. Parker clarified that her initial belief was premised on the information provided to her early on in the intake process. Ms. Parker confirmed that, over time, Ms. D.G.1’s concerns were not substantiated and as a result of additional information coming to light in tandem with the therapists’ reports, her initial determination of Mr. A.F. was no longer valid.

[76] Despite allegations of impropriety raised by Ms. D.G.1, Ms. Parker denied that there was anything detrimental occurring with the children during the course of their therapy sessions. Ms. Parker's testified that Ms. D.G.1 continues to have a different interpretation of various events. While Ms. Parker did not specifically disagree nor challenge the mother’s reported observations of the children’s behaviour, she strongly disagreed with the mother’s assessment and interpretation of those observations.

[77] Ms. Parker testified that one of her chief concerns was the amount of conflict that the children had internalized. With respect to the current situation, Ms. Parker testified that her concerns about the children were increasing in that the children were picking up the stressors from the mother and their maternal grandmother. Ms. Parker testified that the mother's interpretation or anticipation of her fear of the children’s father has or will likely become instilled in the children, and they become well aware of the mother being frightened and her lack of trust of the father. Ms. Parker's view was that the children were picking up this lack of safety or attachment from the mother whether it was directly or unconsciously driven. The bottom line was that the signal from the mother was that anything else was better for the children in contrast to them visiting with their father due to mother's view and her distrust.

[78] Ms. Parker testified that one of her chief concerns was the amount of conflict that the children had internalized and how the children might be dealing with it. Further, Ms. Parker testified that the mother didn't trust that her children would be safe in the presence of the therapists at the Centre or with the independent supervisors accompanying the father during these supervised visits. Ms. Parker testified that her hypothesis differed from that of Ms. D.G.1. She believes that the mother's unconscious ideology that the children can never have a good time with father and can never be safe with him is fundamental to the mother’s core issues. As a therapist, she believes that this belief is and continues to be highly detrimental to the children.

[79] Further in cross-examination, Ms. Parker disagreed with Ms. D.G.1’s description of various incidents at the Centre. According to Ms. Parker, some of Ms. D.G.1’s observations were clearly overstated. Ms. Parker re-emphasized her concerns about the audiotape and the significant lack of supervision. Ms. Parker opined that Ms. D.G.1 exhibited poor judgment and this demonstrates how stressed she must have been at the time in taping the children in order to find some evidence to support her allegations against the father.

[80] While somewhat long-winded and detailed, I find that Ms. Parker was a very credible witness who offered reasonable and plausible explanations for the children’s behaviour. She was a valid historian and provided helpful insights into the nature and scope of the therapy offered to the children, the assessment process and the Willow Centre’s therapeutic approaches. I find that she was very fair in attempting to respond to questions posed by the respondent, while disagreeing with most, if not all, of the assertions raised in cross examination.

THE RESPONDENT’S CASE

Ms. D.G.1

[81] Ms. D.G.1 testified about her upbringing in British Columbia and Ontario. She explained that she went to York University and studied literature and went to teacher’s college in Scotland. She described her family values and the closeness to her family. She confirmed that she met Mr. A.F. in February 2001 through their employment with the school board. She testified that even at the early stages of their relationship she noted that Mr. A.F. had depression and he often needed time to regroup. She explained that she attempted to encourage Mr. A.F. to see his doctor and to help him discover his feelings and deal with his emotions. She described Mr. A.F. as “missing the empathy class in kindergarten”. They married on July 31^st, 2004 in Quebec City.

[82] Ms. D.G.1 testified about the birth of X.F.F. and they decided that she would stay at home and take care of the children until both children were in school. In order to supplement her income, she started a jewellery business. Prior to the birth of S.R.F., she noted Mr. A.F.’s strange behaviour with the children. After S.R.F was born, X.F.F. started to have night terrors and she attempted to comfort X.F.F. and reassure him. She testified that Mr. A.F.’s interest was less with S.R.F., and he focused on X.F.F.. She testified Mr. A.F. seemed to be unhappy and he had an angst look on his face. She testified about her relationship with Mr. A.F. in 2008 and described the various incidents while he was engaged with the children. She described Mr. A.F. as a perfectionist, very tense, and who preferred to be by himself. She recounted incidents involving Mr. A.F. and the children wherein she described activities which were inconsistent with good parenting.

[83] In the fall of 2008 the difficulties increased and she encouraged Mr. A.F. to see the doctor and consider various medication regimes. She testified that Mr. A.F. agreed as he was concerned about his own moods and rages. Ms. D.G.1 testified about a trip to England in February/March of 2009 where she noticed odd behaviour by the children. She began to have concerns about the safety of the children with Mr. A.F.. For example, Mr. A.F. would allow X.F.F. to play with tools and these tools were not really a toy. Mr. A.F. had less patience was swearing more and as an example, he had grabbed X.F.F.’s hat off his head so hard that it left a red mark.

[84] In the spring of 2009 she testified that X.F.F.’s personality changed and he became fearful. She testified that X.F.F. did not want to go on bike rides with Mr. A.F.. She testified about an incident involving Mr. A.F. leaving X.F.F. on the bicycle with a heavy helmet on and X.F.F. was screaming in a whisper and was uncomfortable in his bike seat. She testified that Mr. A.F. had little concern or compassion for the children. She testified that from March to the summer of 2009 X.F.F.’s night and day terrors continued. X.F.F. would bang his head on the ground and there were other times when X.F.F. would hit his sister whenever Ms. D.G.1’s back was turned. X.F.F.’s continual and increasing aggressive behaviour as well as S.R.F. never crying and becoming stiff when she was put to bed concerned her.

[85] At the end of the summer 2009 X.F.F. mentioned that his bum was hurting him. He couldn’t sit or stand up, and she was concerned about this behaviour but did not take any action based on Mr. A.F. convincing her that everything was normal. She testified extensively about Mr. A.F.’s rage episodes. She also related incidents regarding X.F.F.’s toilet training and that Mr. A.F. always wanted to be in the washroom with him. She testified about an incident where Mr. A.F. slammed the door on X.F.F.’s fingers. She testified about X.F.F. being obsessed with the smell of feces and about his bum. She testified about an incident in the fall of 2009 about S.R.F. with a plastic banana in her mouth. Ms. D.G.1 testified about X.F.F. falling up the stairs and wasn’t sure if he was tripped or perhaps he just fell. She did note that Mr. A.F. was chasing him at the time and that on that occasion Mr. A.F. was angry.

[86] Around Thanksgiving 2009 her parents came to visit them in Canada. X.F.F. had tantrums or episodes and he continued to act out. X.F.F. was unpredictable and Mr. A.F. also had his moods or rages and anything could set him off. Ms. D.G.1 testified about numerous other incidents involving the children and Mr. A.F.. She testified that the children’s behaviour became worse and she wanted Mr. A.F. to get help and she intended to give him the space he needed. She testified that Mr. A.F. accepted her mother at the home, but really did not want her mother to visit them.

[87] Ms. D.G.1 testified as to a shocking observations of Mr. A.F.’s conduct on October 7^th, 2009, namely; the bedroom door was open, S.R.F. was in her pajamas sitting on the edge of the bed, Mr. A.F. was in front of her, his pants were open and he was doing a pelvic tilt position in very close proximity to S.R.F.’s face. Ms. D.G.1 testified that his activity did not seem right to her and she then remembered the banana in the mouth incident with S.R.F. and felt that she needed to get X.F.F. and S.R.F. out of the house safely.

[88] As Mr. A.F. was so unpredictable, Ms. D.G.1 was afraid to confront him and she and her mother discussed various options. Ms. D.G.1 was concerned about the children’s and her own safety and she did not want to stay at the house. At this point, she desired to let Mr. A.F. work with his issues and she decided to go to England with the children and would stay with her parents. On October 10^th, 2009 the tickets were purchased and she informed Mr. A.F. of her trip on that very day. She explained to him that they both needed to get away from each other and that he needed to work on his issues and heal. She testified that he did not want her to go, but later agreed that it was the right thing for them.

[89] On October 11^th, 2009, the departure date, Ms. D.G.1 described an incident with a neighbour coming over to the house and another event involving Mr. A.F. putting his finger in X.F.F.’s bum crack through the top of his son’s pants. She stated that she was concerned but did not speak to Mr. A.F. about it. They all left for the airport together. She testified that Mr. A.F. was aware that she was going to be away for a period of time and she was not sure when she was going to return. Ms. D.G.1 emphasized that as Mr. A.F. was aware of the arrangements, at no time did she abduct the children.

[90] When she got to England she called Mr. A.F. on a daily basis and they spoke through Skype. She testified that when they arrived in England the behaviour of the children really came out. It appeared to her that there was disorganization and a lot of negative behaviours coming to the surface. She believed the children were in a safe place in England and more free to express themselves. In the first six weeks she encouraged the children to use Skype and phone their father. She testified that she began to notice the behaviour of the children changing for the worse. For example, X.F.F. was pulling hair and ripping back and forth. X.F.F. was not able to relax and there were repeated behaviours like “grabbing mother by the hair, pushing mother to the floor”. She thought he was playing but he kept stating “Kill mommy”. He pulled her shirt up from the back and he kicked and spat at his mother. Ms. D.G.1 testified that this behaviour continued with intense night terrors. She described other incidents that gave her cause for concern.

[91] Ms. D.G.1 testified that after six weeks she wanted to maintain contact between the children and Mr. A.F., but there was a five-hour time difference. Although Mr. A.F. called up to 10 times a day, after a point there was less contact on the phone. Ms. D.G.1 testified that the children’s behaviour became less unstable after six weeks. Yet, after each phone call there was a regression of the children’s behaviour. Mr. A.F. told her that he was getting help, but did not have the “green light” from Dr. Layne. On December 3, 2009 she discussed with Mr. A.F. her fear of him and she advised him at that time not to come to England for Christmas, as was originally planned. The reason she did not want Mr. A.F. to come for a holiday visit was because of the potential adverse reaction of the children and she did not feel comfortable with Mr. A.F. visiting her parents in England. Mr. A.F. suggested staying at a hotel in town, but she did not feel comfortable with that and she wanted to give the children “a break”. At the same time, she called the Halton CAS with respect to her concerns. She also notified the local police in the United Kingdom. She advised that should Mr. A.F. arrive in England, the police would be contacted.

[92] As a result of no contact between Mr. A.F. and the children, she noticed a vast improvement in the children’s behaviour while in England. The children were playing together, sharing toys and X.F.F. seemed to act as a protector to S.R.F.. Ms. D.G.1 testified that she was impressed with their behaviour.

[93] Ms. D.G.1 testified that her intention was to come back to Canada. She sought subsidized housing in Halton Region for her return to Canada. She was contacted early January 2010 about possible accommodation in a house in the Halton Region.

[94] In January 2010 Ms. D.G.1 came back for a week to Canada without the children. She went back into the matrimonial home and obtained some of the toys, money and other items from the home. While she attended the home, she never advised Mr. A.F. that she was back in Canada at that time. She stayed in Canada for one week, arranged for housing and also went to visit the Children’s Aid Society and police with her concerns of abuse regarding Mr. A.F.. She later found out that Mr. A.F. reported a break-in into the home and that there was an allegation that she had kidnapped the children. She denied the abduction of the children and offered her explanation for her visit to England and that her return date was always uncertain.

[95] In January 2010 she called the Halton CAS and gave them a long list of bizarre behaviours demonstrated by the children and she wanted to provide them with an update. She testified that on January 18, 2010 she met with Det/Cst. Barb Kent of the CASA Unit of the Halton Regional Police and Lisa Potts of the Halton CAS and she provided a statement. Although she was making a complaint, Ms. D.G.1 testified that there was a lot of questioning and she felt that she was a suspect, being interrogated by Det/Cst. Kent. She did not know why she was being treated that way. Ms. D.G.1 testified that the police did not feel that there was any substantiation to her complaints, but that CAS would assess the children when they returned. She also arranged for a doctor in England to assess both children, however no assessment was completed.

[96] On January 25, 2010 she received her first notice with respect to a Hague Convention application to have her bring the children back to Canada. She was advised that Mr. A.F. provided 72 hours notice to return and that she could not comply with that timeframe. On February 1, 2010 she came back to Canada and arranged for the children to come back on February 7^th with their grandmother.

[97] She testified that on February 9, 2010, Mr. A.F. met with S.R.F. and X.F.F. in the matrimonial home with Mr. A.F.’s colleague present. X.F.F. first refused to enter the home and was clinging to his mother. While she tried to encourage him to go into the home, when he saw his father X.F.F. put his head down and did not want to visit the father. Eventually X.F.F. went in and visited with the father. When the children returned she testified that S.R.F. woke up screaming that night while in bed. She testified that X.F.F. had diarrhea as a result of the visit. After the visit, X.F.F. was noted to begin to hit his sister again. She testified that the progress that they had made was gone and the bizarre behaviour was coming back.

[98] The second visit was on February 13^th, 2010 at the matrimonial home and again X.F.F. did not want to go into the house, but it took less time for him to comply. After the visit, X.F.F. told his mom that she was a “stinky mom” and made other comments of a disparaging nature about his mother. Again, Ms. D.G.1 advised that both children behaved in a very bizarre and troubling manner. At the end of February, X.F.F. had bad episodes at night and severe tantrums that would go on for 45 to 60 minutes. X.F.F. would also repeatedly hit his sister in the face.

[99] On March 1, 2010 she took the children to Sick Kid’s Hospital in Toronto and explained her concerns to the hospital staff. She provided all the information to the health care professionals and was referred to the SCAN Unit at the hospital. Subsequently, the SCAN Unit did not accept the intake and declined to intervene in the case notwithstanding that Ms. D.G.1 had called them several times.

[100] Later in March she met with Ms. Potts of CAS who had an interview with her. Ms. Potts arranged for an access visit for Mr. A.F. at the supervised visitation centers in Burlington and Milton.

[101] In April 2010 she described the events in court where Mr. A.F. claimed that she had misrepresented their family situation to the court. Ms. D.G.1 testified that she explained she didn’t know the totality of the information when she provided the information in an affidavit for the motion before Hourigan J.

[102] Ms. D.G.1 testified that she began video and audio recording the children in order to capture their behaviours due to the professionals never witnessing any of these behaviours while the children were with them. The children were expressing these acts outside of the professionals’ offices and she felt it was important to have the healthcare professionals see and hear what X.F.F. was going through. She also testified that the reason for recording the children was to protect both her and the children.

[103] She described the 911 video that was presented to the court surrounding the events of March 19, 2010. The children had seen Mr. A.F. at a supervised centre and X.F.F., when told about such a visit, straightened up and went on the floor in a disorientated manner, staring and continually falling on the floor. He also banged a toy and started an episode. Therefore, Ms. D.G.1 decided to start recording all of these episodes in order to provide that information to Dr. Goldstein. She felt that the video of March 19, 2010 would assist and if Dr. Goldstein saw it, she would be able to get the help she felt X.F.F. and S.R.F. needed. Ms. D.G.1 disagreed with Dr. Goldstein’s assessment about the tantrum as depicted in the 911 video. When X.F.F. was in that state, it was necessary to prevent injury to him while he was kicking and lashing out. With respect to the event, she testified she did not recall who turned on the recording device and believed it might have been her mother. She testified that her intention was not to film the entire scene, just a segment of the event to show what X.F.F. was going through. She testified that Dr. Goldstein saw that very same video that was presented to this Court.

[104] With respect to the choice of a child assessor in this case, she described Mr. A.F. refusing her choice of Dr. Berman. In accepting Dr. Goldstein as an assessor, she trusted his lead on the assessment and she attempted to bring out many examples of the bizarre behaviour that would be important for Dr. Goldstein to consider in his recommendations. She testified that none of her concerns were acted upon by Dr. Goldstein nor did he ever call the CAS.

[105] She testified that on May 13, 2010, she provided a binder of information to Dr. Goldstein with all of her observed behaviour of the children and wanted to share that information with him. In December 2010 she testified she met with Dr. Goldstein and there was a verbal report provided wherein it was recommended the children have therapy and that “Ms. D.G.1 may choose whoever she wanted”. In discussion with Mr. A.F. and Dr. Goldstein, they agreed that the therapy be provided by the Willow Centre in Toronto.

[106] On December 4, 2010 she met with Carol-Jane Parker, a therapist at the Willow Centre. Previously, she provided a detailed list of her concerns and observations regarding the children to Ms. Parker. Ms. D.G.1 testified that at that time, Ms. Parker told her emphatically that Mr. A.F. “could not be left alone with the children”. She described five of the clinical findings related to her by Ms. Parker. Ms. D.G.1 testified that there was no individual therapy required for her. It was her understanding that Mr. A.F. and Dr. Collins were to arrange for her to help protect the children. At the time she felt some relief that the children were going to be protected and that the therapists understood her goals.

[107] In January 2011, the therapy began. She confirmed that she did agree to the plan where Mr. A.F. would receive help and the children and their father would work together. She emphasized that her role was to protect the children. Mr. A.F. was going to be re-introduced only once the children were safe, and under supervised access. What she agreed to in the beginning was that during the first eight weeks Mr. A.F. would not have any contact with the children.

[108] In January to March 2011 she noticed that X.F.F.’s aggression stopped, his sexualized behaviour was reduced and the same healthy behaviour that had the children exhibited in England was apparent. It appeared to her that the therapy sessions were successful. On December 23, 2010 she sent a memo or letter to Dr. Goldstein outlining his errors in his interpretation of the 911 tape. She described Dr. Goldstein’s verbal report and she did not share his ideas and related these concerns in a letter to Dr. Goldstein dated December 23, 2010.

[109] Throughout the therapy, Ms. D.G.1 believed that the children’s needs had been listened to by the therapists, but were not acted upon. Ms. D.G.1 testified that her understanding was that the focus of the Willow Centre was to understand the issue of attachment with the children. The Willow Centre did not address her concerns and it appeared to her that the information shared with Dr. Deb Parker and others about sexualized behaviour and aggression was not acted upon. In any event, she observed a definite downward shift of their behaviour in the spring of 2011. Ms. D.G.1 described one particular event shortly after a session, where S.R.F. came out with a marker and had a cut on her hand and she told her mother that she was hurt. S.R.F. said she had been cut by her father and then fell asleep after the session on the drive home. S.R.F. remained asleep for several hours without waking. Ms. D.G.1 was so concerned she called Tele-health and took S.R.F. to the hospital. After a six-hour wait, the physician saw S.R.F. and indicated that there was no injury or illness. However, when she returned home S.R.F. started drooling and she slept for three days. She also noted changes occurring with X.F.F. and S.R.F. after March 2011 as they began to expressed “bizarre and detrimental” behaviours.

[110] Ms. D.G.1 also testified about the informed consent issue. Ms. D.G.1 testified as to her understanding of the December 15, 2010 consent drawn up by the parties. She testified that individual therapy was not part of the treatment plan. She testified that during the course of litigation she was forced to sign a parenting plan presented to her. That parenting plan was provided days after Dr. Goldstein’s “final” report of February 7, 2011. She believed that she had to sign the consent or be forced on to trial in four days.

[111] With respect to the treatment plan, she believed she couldn’t compel members of the family to attend treatment and she reiterated that there was no informed consent to the proposed plan of treatment. At this time she understood that Ms. Parker and Mr. A.F. wished to have the father obtain more access to the children and she explained the difficulty about travelling to the Willow Centre four times a week, one hour each way, in conjunction with her employment. She believed that the letter from Mr. A.F.’s counsel following Dr. Goldstein’s February report was an ultimatum. She also testified that she believed the parenting plan was premature in that it assumed an outcome of findings and recommendations before those outcomes ran their course.

[112] Ms. D.G.1 provided detailed documentation to the Court in support of her position. Ms. D.G.1 repeated that she was happy with the treatment plan and therapy between January and March 2011, but believed that there was a significant diminution in the children’s behaviour after March 2011. She understood that there would be ups and downs with therapy, but, in her view, it was a significant regression and her concerns were not addressed. Ms. D.G.1 also provided the details of sexualized behaviour and disassociation, and those issues were brought to the attention of Ms. Parker and Dr. Deb Parker.

[113] At this stage, Ms. D.G.1 provided a series of photographs alleging injuries and some physical abuse against the children. She described her interpretation of the photographs, and pointed to bruises, scrapes, cuts, marks and other injuries as well as depictions of X.F.F.’s abnormal behaviour.

[114] Ms. D.G.1 testified that she called the Peel CAS in August 2011 with respect to injuries she observed on the children’s feet. The CAS came to the home and they scheduled an appointment with the Special Victims’ Unit, but that appointment was cancelled and no follow-up action occurred. She had another meeting with police and they referred her to the SCAN Unit. She testified that her complaints were not accepted by the SCAN Unit, much to her surprise.

[115] After receiving Dr. Goldstein’s report of February 7, 2011, Ms. D.G.1 testified that she called and provided documentation to him in order that he would be aware of her concerns. She testified that Dr. Goldstein told her that the matter would be taken up in court and he did not want to hear about his mistakes or inconsistencies.

[116] Ms. D.G.1 described her understanding of Quigley J.’s endorsement of April 2010. She stated that Mr. A.F. voluntarily allowed her to go to England and she tacitly criticized the endorsement as having omitted certain facts.

[117] Ms. D.G.1 supported Dr. Collins in his disagreement with Dr. Goldstein’s findings pertaining to Mr. A.F.’s mental health status. She testified about Mr. A.F.’s psychological make-up and the detrimental effect on the children. Ms. D.G.1 testified that Dr. Collins told her that he had concerns about Mr. A.F.’s mental health right from the outset. Her complaint was that the initial report and the August 8, 2011 update did not have any indication of Mr. A.F.’s struggles with his mental health difficulties, his unpredictable rages and did not address the points raised by Dr. Collins. She criticized Dr. Goldstein’s report as it did not contain recommendations from the Willow Centre to which she understood that they would be recommending some aspects of access and custody.

[118] With respect to the December 4, 2010 meeting with all of the parties, she described her interpretation of that meeting. A question was raised to her by one participant pertained to when would she allow Mr. A.F. more access. She replied that it was a difficult position to place her into as she had no information about Mr. A.F.’s his mental health and how his abuse was affecting the children’s bizarre behaviour. She was also told by Ms. Parker that he could not be alone with the children and she had no information as to what it was going to take to allow Mr. A.F. more access.

[119] Ms. D.G.1 had concerns about Dr. Goldstein’s opinion of her own mental or psychological state. She testified that Dr. Goldstein and Ms. Parker never worked with her personally and only Dr. Collins did some psychological testing of her. She emphasized that Dr. Goldstein is speculating as to her mental health. She referred to the word in the report describing her “paranoia” and claimed that with all of the bizarre behaviour and the applicant’s mental health condition, any reasonable person would arrive at the same concerns she had at the time. She concluded by indicating that Dr. Goldstein and Ms. Parker made comments about her mental health with substantiation. Instead, they ought to have focused on Mr. A.F.’s struggles, but all of a sudden she was concerned that it was her mental health that was being painted with difficulties.

[120] With respect to the August 4^th, 2011 report, she received a letter from Mr. A.F. a day or two after receiving the report asking for increased access in accordance with the recommendations in the update report. She testified that she took the letter from Mr. A.F. as a threat. She believed and still believed at that time that Carol-Jane Parker told her Mr. A.F. could not be alone with the children. She testified that as soon as the update report came out, the email from Mr. A.F. was very controlling and demanding.

[121] She also testified that she recently went to Peel Children’s Place to discuss the sexualized behaviour and other concerns with therapists or professionals there. There was only one appointment and again no follow-up. She also spoke with a pediatrician about her concerns, but it appeared to her that no one wanted to get involved given the children’s needs were complex and the matter was before the courts.

[122] With respect to the October 6, 2011 recording, she testified that the reasons she recorded the events was that she tried to get the help the children needed. The recording was meant for the healthcare professionals. She testified she had no idea what the children were doing in their room while they were being recorded up until she walked into the room and began listened to the recording. She then presented a second set of photographs with unexplained marks or injuries on the children.

[123] Ms. D.G.1 did not see Dr. Goldstein’s last report as balanced and fair. She testified that she was very surprised by the results of the update report. She described the whole situation as quite complex and claimed that Dr. Goldstein had inaccurate conclusions with respect to the 911 video and the audio tape she provided to him. She testified that she never attempted to change Dr. Goldstein’s view, but tried to point out inaccuracies and inconsistencies in his report. Those concerns were not responded to even though she presented him her concerns in writing, including a binder of information containing her concerns. She disagreed with Dr. Goldstein’s recommendations and his conclusion that she suffers from delusions.

[124] In cross-examination, Ms. D.G.1 admitted that Dr. Goldstein, Dr. Collins and Ms. Parker were addressing her concerns with their initial recommendations of therapy and Mr. A.F. being withdrawn from the children. She stated that that approach was part of Ms. Parker’s plan from December 8, 2010. She admitted that Mr. A.F. was following the recommendations of the Willow Centre, including not seeing his children for two months in early 2011. She acknowledged that Dr. Goldstein’s report of February 7, 2011 provided for a review of his findings after four months. She agreed that Dr. Goldstein had recommended joint custody at the time of his “final” (February 7, 2011) report. When questioned, Ms. D.G.1 agreed that the children were showing that they were well behaved in Mr. A.F.’s presence. She agreed that she spoke to Ms. Parker about the sessions and had heard from Ms. Parker that Ms. Parker had no concerns about Mr. A.F. and the children.

[125] She re-affirmed that Ms. Caroline Rumble testified that she had no concerns regarding Mr. A.F.’s interaction with the children. When questioned about Ms. Joanne Irvine, she claimed that Ms. Irvine at times was not looking at the children and on occasion did not hear X.F.F. screaming when he was outside the car being transferred between the parties. She admitted that she never approached Ms. Rumble or Ms. Irvine about her concerns. Ms. D.G.1 admitted that Mr. A.F. had a supervisor with him at all times with the children except the two times that she came along.

[126] She admitted that there were no worries expressed about child protection issues in the note she left for him at the home when she departed for England on October 11, 2009. She stated that Mr. A.F. did not react well with the children and it created a worse situation, notwithstanding that he tried his best. Ms. D.G.1 agreed with Mr. A.F. that the children did not appear to be insecure even when she was late for the pick-up. She admitted that the children did not show any insecurity or distress when she came late and she admitted that the children felt comfortable with Mr. A.F. even if she arrived late.

[127] Ms. D.G.1 agreed that she follows her mother’s advice with respect to various child rearing issues and in terms of the current litigation. Her mother has been and continues to be very helpful, driving the children to the Willow Centre up to four times a week and assisting her with all of the children’s issues.

[128] When asked about Mr. A.F.’s offer to leave the matrimonial home in October of 2009, as well as in January 2010, Ms. D.G.1 agreed that he had offered that, but she was not comfortable with him remaining in the basement as there were things happening behind her back. She also had concerns that Mr. A.F. could access the home at any time.

[129] With respect to her moving to the Peel Region in the summer of 2011, she admitted that there were a lot of changes in their children’s lives because of the move and the therapy. She agreed that there were changes to their schooling and their daycare situation. When asked about a change in daycare, her response was that she moved because there was a break-in in her home and her housing situation was intended only to be temporary. When she was asked whether she alleged that Mr. A.F. broke into her residence, she responded that Mr. A.F. or Ms. Parker had interpreted it that way because she never knew who broke into her house.

[130] When asked about advising Mr. A.F. about the change of daycare or schooling she responded that she did advise Mr. A.F. albeit at the last minute. Ms. D.G.1 testified that she did not know exactly when she told Mr. A.F.. When asked about providing registration information about daycare and other documents, she admitted that she did not provide those documents to him. When asked about Mr. A.F.’s lack of input or decision making with respect to the recent daycare, Ms. D.G.1 agreed that she did not provide him with information, but, in the past, she also requested medical records from him and did not receive them for a year.

[131] When asked about the pictures provided to the Court during this trial, Ms. D.G.1 admitted that the scratches on the hand and cuts on the fingers on the children could be from playtime activities. However, she testified that she had never seen marks like that before. Ms. D.G.1 testified there is actually more pictures than the ones provided to the Court, yet she provided the best examples of some of the injuries and the bizarre behaviour exhibited by the children. When asked about the photos with X.F.F. and the father being in a play area in England, Ms. D.G.1 responded that the photo was taken to show X.F.F.’s vacant stare. She testified that the pictures were taken about a minute apart.

[132] Ms. D.G.1 also was questioned about the picture of X.F.F. screaming, drooling, and pointing and where he is in a state of undress. She admitted that this picture was given to Detective Constable Barb Kent and the Halton CAS. She admitted sharing her concerns with them when they met with her on March 3, 2010. Following presentation of the pictures and her complaint, she agreed that there was no follow-up CAS investigation.

[133] Ms. D.G.1 acknowledged receiving the updated report from Dr. Goldstein around August 8, 2011 and had received Mr. A.F.’s proposed plan to reintegrate the children into his life in order to have equal parenting time. She acknowledged that this would be unsupervised access. When asked about Mr. A.F.’s email following Dr. Goldstein’s August report, Ms. D.G.1 testified that she felt the email was demanding she had to respond in only in a couple of days. Ms. D.G.1 was asked if she agreed that due to the fact that Mr. A.F. had not been alone with his children since February 2010 and the report indicated he could finally be with the children, would she accept the possibility that he was excited and wanted this access to happen as quickly as possible. Ms. D.G.1 responded that while that may be, “the one thing that was forgotten in this whole process is it’s up to the Court to decide and the assessor is part of that decision” and “I believe you have missed that step”.

[134] Ms. D.G.1 admitted that in August 2011 following the receipt of Dr. Goldstein’s report, she contacted the CAS and the Peel Police with concerns about Mr. A.F. with the children during the supervised access visits. She testified that she brought those concerns based on what the children had told her and their behaviour that was not normal. When asked about the behaviour and whether or not she disagreed with Ms. Rumble, Ms. Parker and Ms. Irvine’s views, Ms. D.G.1 replied that there were times when often S.R.F. and X.F.F. would be asleep at pick-up when they would normally not be tired.

[135] Ms. D.G.1 testified that she took numerous videos and audio recordings of the children. While she could not identify how many videos were taken, she testified that she probably took more than 50 audio recordings. When asked when she was recording the children, she replied, “There were patterns in their behaviour that came out after access with Mr. A.F.”. In therapy sessions there were behaviours that came out as well that they did not see at the home. The purpose of these recordings was to provide information for individuals and professionals to understand their behaviours to get them the help that they need. She admitted while videotaping or filming the children, she and her mother were interacting with them. Ms. D.G.1 testified that she shared the information with Deb Parker and the response back from Dr. Parker was not what she had expected. She testified that when taking the recording the children were not aware of the recording as she did not want to draw attention to the recordings. She testified that she did not only videotape the children in the house, but because of their odd behaviour coming out of the Willow Centre and back from access visits, she took videos at other locations.

[136] Ms. D.G.1 testified that the recordings were shown to Courtney McCabe, Myrad Guta, (CAS), Officer Phil Campbell from Halton Police, Dr. Goldstein, Carol-Jane Parker and Dr. Deb Parker, as well as Michelle Ray who was her therapist and Ms. Judy Creighton.

[137] Ms. D.G.1 testified that during the pick-ups and drop-offs with Mr. A.F. she was recording him and confirmed that she did not tell Mr. A.F. that she was recording their exchange. Ms. D.G.1’s explanation was that there was a perception that a person may coach a child to say something and just leaving the recorder in the pocket would make it very clear that she never coached anyone.

[138] Ms. D.G.1 testified that with respect to the October 6, 2011 recording, a transcript was shared with Carol-Jane Parker, Courtney McCabe and Officer Phil Campbell. Ms. D.G.1 was asked about the details of the recording. Ms. D.G.1 recalled that Mr. A.F.’s supervisor on that day was Ms. Rumble. While Ms. D.G.1 didn’t recall being served with trial documents on October 6^th 2011, it was later confirmed that she was served with those papers on that date.

[139] Ms. D.G.1 testified that the recordings were shared with the Children’s Aid Societies, Halton police and others. She confirmed that all these agencies listened to some of these recordings and no file was opened by any agency. Ms. D.G.1 admitted talking to Ms. McCabe shortly after the recording was done, but qualified her response in that Ms. McCabe’s specialty or skill set may not allow her to understand it, so she decided to take the tapes to the therapists at the Willow Centre because they have the appropriate background.

[140] Ms. D.G.1 admitted that she went to court on October 20, 2011 to try to postpone the trial and her reasoning was that she did not feel the children had obtained the help that they needed to understand where they were coming from and in order for the Court to make a decision in this case. When asked whether, after her unsuccessful attempt to postpone the trial, she then went to the police officers and CAS on November 3 or 4 to postpone the trial, Ms. D.G.1 disagreed and indicated that her intention was to get help for the children.

[141] With respect to Dr. Goldstein’s report, Ms. D.G.1 testified that there were certain inaccuracies and bias from the original report, in part due to the April 22, 2010 engagement letter sent by counsel for Mr. A.F.. Ms. D.G.1 testified that her former counsel, Ms. Starr, sent a letter advising Dr. Goldstein about her concerns. Ms. D.G.1 testified that Dr. Goldstein’s report contained a significant amount of inaccurate factual statements from Mr. A.F.. When asked whether or not Ms. Starr’s letter to Dr. Goldstein gave her an opportunity to provide him with information, Ms. D.G.1 testified that Dr. Goldstein did not ask her for any information.

[142] Ms. D.G.1 testified that she did not find Dr. Goldstein very approachable with respect to the information she provided to him. She testified that, in her view, Dr. Goldstein listened to her but he ignored her information and never took into account the material she provided. When he did refer to her material, it was erroneous and Ms. D.G.1 provided some examples.

[143] Ms. D.G.1 was asked about Dr. Collins’ opinion about her own psychological testing, in particular statements such as questions about herself and core identity and some pre-occupation with sexual matters. Ms. D.G.1 testified that Dr. Collins’ testing was taken in the spring of 2010. The children were doing things to themselves, hurting their own private parts, so at that time she was under the influence of what she observed with her children.

Detective Constable Trevor Bradley

[144] Det. Constable Bradley is a ten-year member of the Halton Regional Police. He worked in the Criminal Investigation Bureau. He described his involvement in the January 2010 investigation regarding a reported potential abduction of the children. Since the parties had arranged a date for a return of the children back to Canada, no further investigation ensued and the file was eventually closed.

Ms. Becky Marie Machado and Mr. Fernando Machado

[145] Mr and Mrs. Machado reside in London, Ontario. They have known Ms. D.G.1 for many years. The F. family visited them in London on August 23, 2009. Both witnesses described a disturbing event that occurred at their residence on that evening involving X.F.F. having a severe temper tantrum.

Mr. R.G.

[146] Mr. R.G. is a principal program manager and the father of the respondent. He described the family values enjoyed by his family, indicating that they are a close and supportive family. He described the children’s behaviour in his presence both in England and in Canada. He described the improvement in the children’s behaviour while they were in England after a period of time and how that behaviour deteriorated when they were brought back to Canada. In particular, between October and December 2009 he found X.F.F. to have aggressive episodes and it was difficult to restrain him during these episodes. He described very disturbing behaviour by X.F.F. towards his mother and members of his family. Most concerning to him was X.F.F.’s aggression towards S.R.F.. However, by Christmas 2009 the children had settled down and had become “adorable kids”. The positive changes noted were enhanced social skills, positive communication, and they were acting like normal children.

[147] Mr. R.G. testified about his observations of the children when they returned to Canada. He noted deterioration in their behaviour especially after contact or visits with their father. He testified that he met with Dr. Goldstein on two occasions with his wife, D.G.2, in attendance. He testified about an incident with S.R.F. wherein she stated that “papa put ice cream one into his mouth and one into her bum”. He did note that her anus and vaginal was red and they took her to the doctor. The doctor prescribed some cream for S.R.F.. He did not report the event at the time but told his daughter about it.

[148] On December 23, 2010, prior to his departure from Canada, he met with Carol Jane Parker and he informed her about several matters, including the events as he witnessed on November 27^th.

[149] He noticed deterioration in behaviour after visits from the father in 2010 and 2011 and the children again were off the wall. Mr. R.G. testified about the fall of 2011 where he noted that X.F.F. had aggression but it was controlled to a degree and he did not see an improvement in the children’s behaviour. He testified that the children do not want to see their father. In cross-examination, Mr. R.G. admitted he did not call the CAS with respect to the comments made to him by S.R.F..

[150] Mr. R.G. appeared to testify in a caring and forthright manner, although he has some obvious leanings towards his daughter’s case. For the most part, I accept his observations as to his grandchildren’s behaviour.

Ms. Lisa Potts

[151] Ms. Potts is employed with the Halton Children’s Aid Society and is a Child Protection Worker. She first met Ms. D.G.1 on January 18, 2010 at a meeting requested by Detective Constable Barb Kent. She kept notes of the conversation during this meeting while Detective Constable Kent took the lead. She confirmed much of the discussion that ensued at this meeting. She acknowledged that Ms. D.G.1 raised a number of concerns to them at the meeting, but the CAS did not feel that the information provided them with sufficient grounds to warrant a full protection investigation.

[152] Ms. Potts testified that she offered counselling referrals to Ms. D.G.1 to assist with her concerns. At the meeting, Ms. Potts testified that she was aware that Ms. D.G.1 was a suspect with regard to an alleged kidnapping as she had been informed by Detective Constable Kent.

[153] Her only active CAS involvement with this family commenced with Ms. D.G.1’s complaint on or about February 24, 2010. On March 8^th Ms. Potts met with Ms. D.G.1 and her children in order to review the allegations. She testified she saw Mr. A.F. on the same date. She testified that she viewed photographs shown to her by Ms. D.G.1, but could not state as to exactly what pictures were presented to her. She was aware of the children being brought to the Sick Kids Hospital in early March 2010. The SCAN Unit at the hospital closed their file as Ms. D.G.1’s concerns did not meet their criteria.

[154] Ms. Potts confirmed that Mr. A.F. provided authorization for her to speak with his psychiatrist, Dr. Layne. She obtained an understanding of Mr. A.F.’s mental health situation from Dr. Layne.

[155] In cross-examination, she confirmed that she viewed the pictures presented to her by Ms. D.G.1 in the presence of Detective Constable Kent. On March 8, 2010 she confirmed that her visit with the children at Mr. A.F.’s residence with the applicant demonstrated that the children were happy to see their father and they were engaged. Ms. Potts indicated that Mr. A.F.’s response at the end of one visit was entirely appropriate at a point when X.F.F. did not want to go home to his mother. Ms. Potts confirmed that she sent a letter to Mr. A.F. dated April 9, 2010 wherein it advised that the CAS investigation was closed.

[156] Based on a question by the Court, Ms. Potts testified that the Halton CAS only conducted one full protection application investigation and that investigation was eventually terminated. However, Ms. Potts testified that there were numerous requests for CAS intervention with respect to these children, including December 8, 2009, January 15, January 27, January 28, February 3, February 24, March 31, April 5, August 2, August 22, and August 30, 2010. When questioned by Ms. D.G.1, Ms. Potts indicated that some of the concerns were raised by third parties as a result of Ms. D.G.1 providing allegations to them. Ms. Potts explained that these third party professionals have a duty to report to the CAS based on information received from Ms. D.G.1. Notwithstanding all of these direct and third party complaints, the Halton CAS did not complete any full protection investigation, nor did they have any child protection concerns. I find Ms. Potts to be a valid historian and a credible witness.

Ms. Linda Petriw

[157] Ms. Petriw knows the family from living in the neighbourhood. She minded the children in the spring and summer of 2009 and again in 2010. She described X.F.F.’s behaviour as unpredictable and very aggressive. She related her observations of X.F.F. and his behaviour and provided examples such as X.F.F. hitting his sister and her own daughter. She described S.R.F. as a quiet, withdrawn child. She testified that Ms. D.G.1 interacted well with the children and they were comfortable with her. She testified that on the three or four times she saw Mr. A.F. with the children there was tension and the children were upset. She described Mr. A.F. as distant and guarded.

[158] Ms. Petriw testified about an incident on October 11, 2011. She testified about the return of the children in February 2010. She stated that when she saw the children in February 2010, X.F.F. appeared to be happy and very relaxed. S.R.F. was much more comfortable with X.F.F.. She continued to watch the children anywhere from 3 to 5 days a week. She noticed a negative change with X.F.F.’s behaviour in or about April 2010. From a very caring brother he regressed and was showing signs of aggression and harmful acts towards his sister. Ms. Petriw described many of her observations and the statements of the children related to her. Ms. Petriw testified that at one point S.R.F. told her that “dad hit” and that X.F.F. then said to S.R.F., “We don’t tell”.

[159] Ms. Petriw testified that she spoke to Dr. Goldstein on the telephone. Ms. Petriw disagreed with certain facts as described in Dr. Goldstein’s report as they related to her conversation with him. While I accept her observations of the children, I am left in a quandary with respect to her evidence in addressing her statements as found in Dr. Goldstein’s report.

Ms. Michelle Rae

[160] Ms Rae is a social worker and briefly recounted her interaction with Ms. D.G.1 as a result of six visits with her since August 2011. Ms. Rae observed that Ms. D.G.1 presented as reasonable. Ms. Rae recommended further treatment for the children, perhaps with the assistance of multidisciplinary mental health professionals. Ms. Rae confirmed that she never met with the children. She was candid in her testimony and confirmed that she called the Peel CAS with concerns related to her by Ms. D.G.1 as required by her duty to report.

Dr. Deborah Parker

[161] Dr. Parker is a registered clinical psychologist. She has extensive experience in psychotherapy, assessment and diagnosis and in areas such as attachment issues and parental-child relationships. She met the children initially in January 2011 as a part of a broader plan of treatment at the Willow Centre. Her role was to assist the children with both parents. Dr. Parker explained the concepts of “disorganization”, “disassociation” and “attachment”.

[162] She observed that both children exhibited signs of disorganization. She described X.F.F.’s behavior and difficulties. She testified that X.F.F. was reacting to being emotionally overwhelmed at times. She testified that initially X.F.F. treated his mother like an object, however there was an improvement in X.F.F.’s behavior over the course of the therapy with some negative deviation with his progress at various times.

[163] Dr. Parker testified about S.R.F. and her observations of dissociative behavior. She provided some examples to support her assessment, including reference to a doll house and various dolls depicting various generic family members. S.R.F. demonstrated an improvement during the course of therapy and she “found a voice” and became more assertive.

[164] She testified about her advice offered to Ms. D.G.1 to support her and to assist in setting limits with the children. Dr. Parker confirmed the concerns raised to her by Ms. D.G.1. She affirmed that she spoke to Dr. Goldstein about her observations and opinion. She described the X.F.F.’s withdrawn behaviour when Dr. Goldstein visited the Willow Centre on July 5, 2011. She explained that X.F.F. does not adjust well to abrupt changes.

[165] When asked about the children’s sexualized behavior, Dr. Parker testified that as a result of information provided by Ms. D.G.1 she furnished appropriate strategies to deal with these concerns, such as the importance of not leaving the children alone unattended. Her involvement terminated in July 2011.

[166] In cross-examination, Dr. Parker observed that X.F.F.’s interest in the anatomy of the dolls and the issue of a “sore bum” could suggest that he was curious; however, his use of scissors could demonstrate some “hurt” behaviour. She testified that in May and June 2011, X.F.F. displayed a some increase in aggressive behaviour, however, he was more organized at play. S.R.F. was withdrawn at times but continued to progress in therapy.

[167] Dr. Parker testified in an impressive manner and I find that she was a valid historian and presented her evidence in a credible and forthright manner.

The Section 30 CLRA Assessment

Assessment Report Dated February 7, 2011

[168] Dr. Goldstein is a well-known psychiatrist with extensive experience in cases involving high conflict. In order to prepare his assessment, Dr. Goldstein was provided with certain background information. In addition, Dr. Goldstein was provided by the parties with a series of names and numbers of collateral sources. Dr. Goldstein met with Ms. D.G.1 on several occasions individually, as well as observed her at one sitting in her home together with her children in Oakville. He met with Mr. and Mrs. G. Sr.; with Mr. A.F. on several occasions individually and on one occasion together with his children in his apartment in Oakville; with Mr. and Mrs. F. Sr., the parents of A.F.. Mr. A.F. and Ms. D.G.1 also underwent comprehensive psychological testing by Dr. Rex Collins of the Willow Centre. He was also asked by Ms. D.G.1 to review some tapes which she produced, as well as reviewing a substantial amount of written material and documents. Both children and their parents were evaluated at the Willow Centre with regard to the nature of the attachment between each child and each parent.

[169] The family dynamic and factual background relevant to the issues before this Court is reflected in comprehensive detail in Dr. Goldstein’s report of February 7, 2011. Dr. Goldstein provided a summation of the parties’ positions:

To summarize the essence of the presentation is to say that mother is claiming, both from her own observations and especially the observations of her own mother, that these children are in danger when they are left alone with their father, that these children are acting out in apparently serious ways and making frighteningly aggressive statements which would lead one to question their mental health. It is mother’s firm belief that all of their problems are due to the exposure which they have had to their father and that they therefore must be removed from him and access to him only be allowed under strict supervision in order to prevent further harm from befalling them. It is her contention that she and her family of origin are the best able to supply the atmosphere of peace, tranquility and nurture which would most benefit the emotional development of both children.

Father, on the other hand, totally denies having done anything wrong either physically, sexually, or emotionally to his children and claims as well that he has been a major presence in the parenting and looking after his son and daughter while mother was struggling with her own lack of energy in both raising the children at the same time as she was pursuing her career as a teacher. He sees himself as having been the helper in this situation - always wanting to satisfy his wife but without ever seemingly being able to be successful in this area. He is concerned about the abnormal closeness exhibited between mother and her own mother and worries about the dynamics of his mother-in-law wherein she seems to approach life through litigating against anyone who dares to stand in the way of what she deems to be proper.

[170] Dr. Goldstein provided his analysis.

From my observation of these individuals I have been impressed with the degree of energy which Ms. D.G.1 seems to expand in her efforts to display the misdemeanours of these children, of their father, and of the fear that she has of all of this. She presented this assessor with many stories of the maladaptive behaviour with which each of these people represents. On one occasion, she brought a video recording to the office. This was a recording of X.F.F. having a “meltdown” following a visit to a centre where he would have been meeting with his father. However, even though he had attended at this centre the visit with his father had not materialized. (Upon returning home “his meltdown” was, according to Ms. D.G.1, recorded by her mother.) The decision was made at home to call 911 and defer to the emergency people who arrived to deal with X.F.F.. This was presented by Ms. D.G.1 as an example of how X.F.F. reacts at the possibility of visiting his father. I have several concerns about this video in that mother and grandmother had apparently not entertained the possibility that X.F.F. might be reacting as a result of disappointment at not seeing his father rather than from fear of seeing him. I also wondered about the actions of the material grandmother, who, rather than attempting to help her daughter deal with X.F.F., was instead videotaping him. Was she showing him a lack of concern for what he is going through? Was he being encouraged to continue with his temper tantrum by having this recorded on video? Mother, who is a school teacher trained to deal with young children and being supported by her mother, chose to bring in emergency forces summoned through 911 in order to deal with a three year old child’s temper tantrum. I am somewhat concerned about the lack of insight of Ms. D.G.1 to bring me this video to watch as an exhibit of what X.F.F. is capable of doing and how he is capable of acting without recognizing that this was also an exhibit of how she and her mother were not capable of dealing with X.F.F. during such an episode. Following my questioning of this behaviour during my disclosure meeting with counsel, mother faxed me a note which claimed that this entire episode had been recorded accidentally as the camcorder which had been lying on the table had been left on inadvertently.

Mr. A.F. spoke of the claims that had been made by his wife and her mother that he had been abusive of the children. Following their return to Toronto when the court ordered that the children be brought back from England - that he was allowed to see the children under supervision and this was followed by the court allowing him to see them in his own home, mother took the children to the Sick Children’s Hospital with complaints about her fear for their wellbeing. As a result, the children were seen by the SCAN team, the Children’s Aid Society was now reinvolved and they too are looking at this family. What he expressed as his wish out of this assessment is to have a third party advise the judge as to how both parents could be involved in the raising of their children. He would like to have shared custody of them and he recognizes the importance of having his name cleared of the allegations as he is a school teacher and his virtual career, as well as his ability to parent his children, is at risk as a result of D.G.1 and her mother’s accusations.

Mr. A.F.’s psychiatrist stated that she had begun to see him because of a referral with regard to chronic depression, and narcissistic personality. There was a history of his having become more explosive when placed on an anti-depressant, of his having high moods as well as experiencing low moods. Early in the therapy Ms. D.G.1 came into a session without having been invited. She voiced her concerns at that time about his mood variations, his irritability, and the faces which he would make. In an effort to deal with all of this, his psychiatrist placed him on Seroquel and he seemed to do much better. Ms. D.G.1 subsequently showed up once again demanding that his psychiatrist do an MRI in order to determine whether he had a brain tumour. Around this time she found that “things started to go weird”. D.G.1 would send emails to the doctor demanding that she “fix him”.

On the other hand, once his family had left for England he seemed to be much more relaxed. At no time did he ever say anything negative about his wife, and always kept up the belief that she would be back. When they did not return as scheduled, he began to panic and it was she, as his psychiatrist, who suggested that he seek out legal advice. There is nothing in the history that she received or anything that she could observe that would have her concerned about any questions of sexual deviation, perversions, or psychosis. She found him to be naïve, forthcoming, and in spite of what had been thought about him, she found him to have a great ability to commit emotionally. He cried when he would speak with her about the children and how he missed them, and she considered this to be entirely normal and appropriate.

Children’s Aid Society and the Police had discontinued their investigation and concluded that there was no need at all for an investigation into the matter.

In his endorsement dated April 19, 2010, The Honourable Michael G. Quigley states:

The reason is quite simply that the evidence disclosed that at the very same time that the Respondent mother was claiming that the Children’s Aid Society and the Halton Regional Police was continuing to investigate these allegation with respect to the abuse of the children, she actually knew that both the Children’s Aid Society and the Police had discontinued their investigation and concluded that there was no need at all for an investigation into the matter. As such, Justice Hourigan clearly had a situation present before him that was misrepresented, at least in terms of the Respondent’s reporting of the position being taken on the matter by third party social agencies within the region.

In paragraph 10 he states,

there is now before the court at least an important question on a reliability and veracity of the allegations made by the Respondent mother, and her mother, relating to sexual abuse against the children, at least insofar as two public agencies, the Children’s Aid Society of the Region of Halton and the Halton Regional Police have determined that there is no investigative matter present in this case at this time. The fact alone must seriously call into question the factual foundation put forward by the Respondent mother in her efforts to try to limit the access of the children to the father. It must call into question her motivation and her credibility and reliability.

Ms. D.G.1 presented as a pleasant, bright, colorful and highly expressive lady with a long list of concerns about the mental health of her husband and her children. Her complaints were many and varied but unidirectional as to their source. It is her impression and strong belief that her son X.F.F. is extremely troubled and his actions are troubling. The source of his problems are his father whose behaviour has been very troublesome and harmful to her children. She feels that she, as well as they, are unsafe in his presence. She is highly expressive and animated when she speaks about them as she points out her son’s actions, as well as those of her husband, which cause her to be terrified. She is firm in her belief that her children have been harmed by their father, that their father is severely ill psychologically, that they need to be protected from him and that he requires serious assistance to deal with his problems. What was quite notable, however, is that on several occasions during her visits with me, she made statements which she would either withdraw or alter within several hours of leaving the office. It was my impression that these changes would be made as a result of advice and guidance which she would receive upon leaving my office or returning home. From a mental status point of view, I found her to be well orientated to time, place and person and showing no gross misperception of reality. Although she shows no evidence of major distortions of her reality, I have considerable question as to her reality testing with regard to her interpretation of actions and intentions on the part of others, as well as being compromised somewhat in being able to interpret the meaning of what is presented to her. It was difficult to discern whether her excitability caused, or there actually existed, a thought process which was compromised such that she cannot seem to complete her thoughts or ideas at times when she becomes quite circumstantial and even tangential in her thinking. She would frequently say things and then correct them almost as if she were making statements impulsively and then evaluating them intellectually.

From my dealings with her, it was difficult to determine which of her complaints were those arising from herself and which were those which had been presented to her by her mother. It is very clear that her identity, comfort, as well as her perception of what is going on around her is closely linked to the perceptions and ideas of her mother. She is an extremely creative young lady but at the same time quite highly organized and controlled. I found her to use the defence mechanism of projection as a major way of dealing with her own difficulties, fears, and feelings of inadequacy.

Mr. A.F. presented as a pleasant, straightforward, highly intense individual who was eager to cooperate at every level in order to help determine what was best for his children and to work out a situation which would best serve their mental health.

In spite of all this, it was only through my direct questioning of him that he felt entitled to respond in any form of critical fashion to his feelings about them and what they were doing. He was always well organized and rational in his presentation but did speak of how tense a situation he found this to be, and how much pressure he was feeling, throughout the assessment. In spite of this, at no time did I find him to be resistant to or uncooperative with the process.

With regard to his mental status, Mr. A.F. is well orientated to time, place and person. His speech was somewhat pedantic, but clear and well thought out, his demeanour controlled, but somewhat awkward in his eagerness to please. He showed no disorder of thought, either in process or content.

[171] In both his report and in testimony, Dr. Goldstein opined that Mr. A.F.’s presentation was quite at odds with the findings of the psychological testing conducted by Dr. Collins.[^1] Dr. Goldstein acknowledges the testing in his report:

We have here an extremely troubling and troublesome situation whereby there are two children involved, each of whom is struggling with a conflicted and troublesome attachment to each of the parents. Most troubling of all is the fact that X.F.F., the eldest, is showing signs of decompensation through his behaviour and the content of his speech, leading to the point of what could be determined to be psychotic thinking. They have been parented by a mother and a father who both have their best interests at heart but each approaches the other in a totally different fashion.

Ms. D.G.1, the mother of the children, and her parents, present the view of Mr. A.F., the father, as being a deranged, strange, predator who has likely inflicted himself in abnormal sexual behaviour upon at least X.F.F., his son, and possibly also his daughter S.R.F.. They view the members of the F. family as somewhat strange, not quite up to their social status, and with considerable disapproval of their way of life.

It is also of concern to this assessor that I did not have within the parameters of this assessment the authority to assess Ms. D.G.2, the maternal grandmother, who seems to be a pivotal figure in this entire dynamic.

Throughout this entire assessment process the presence of the maternal grandmother was highly visible and I was left with the distinct impression that it is difficult to differentiate D.G.1’s concerns from those of her mother - to recognize which are her conclusions and her fears and which are those of her mother. On several occasions, D.G.1 would present some views in our sessions only to retract or alter them within a few hours through a telephone call to my office. During my visit to the family residence to observe mother and the children, grandmother was absent until the latter part of the visit when she entered the home, albeit into another room, but at which time D.G.1’s attitude seemed to change, followed in short order by a change in X.F.F.’s reaction towards his mother and sister.

In contrast to the above, Mr. And Mrs. F. Sr., seemed to be at awe of the Gs, almost as if they were honoured to be in their presence, when they spoke with me about the two families.

In contrast to how D.G.1 and her parents speak so disapprovingly of A.F. and with such suspicion of his motivations as a father, when I invited Mr. A.F. to speak of any question which he had about his wife’s abilities, his answer was “she is the mother of my children. She will always be the mother of my children and I cannot say anything bad about her.” It was only with my further approaching all of this that he was able to talk of his wife’s very close relationship with her mother and how she seems to obey all her mother’s wishes even though they may go against what she herself desires. There was no question in the mind of this assessor that in Mr. A.F.’s conscious awareness he would do anything to please his wife and to nurture his children even though towards the end of their being together, he was being highly stressed as a result of the demands all of this was placing upon him when added to the demands of his teaching career.

Having said all of the above, one must seriously take into account the findings of the psychological testing which point to sever difficulties in Mr. A.F.’s psychological makeup. These would make one worry about the possibility of his having a detrimental effect on the psychological wellbeing of the children. None of this was noticeable to this assessor from my dealings with Mr. A.F., nor has it been a concern to the psychiatrist who has been working with him. Nevertheless, this cannot be ignored and must be dealt with in order to assure the best interests of his children. One must also take into serious consideration the fact that X.F.F. is struggling with such severe psychological problems at this time as well as the fact that neither he or S.R.F. are attached in a healthy manner to either of their parents.

All of this would best be address through a rather involved psychotherapeutic process necessitating a temporary separation of father from the children. This, while he receives some intensive psychological help in order to assist him in dealing with his difficulties at the same time as the children receive help both individually, and together with their mother, in order to establish a firmer bonding and a more secure attachment to her. After a short period of absence from father and the ongoing intensive therapy on all sides as mentioned above, the treatment team will decide from the progress, or lack thereof, when to integrate father back into their lives. The therapy team should then entertain the possibility, or necessity of, a temporary removal of mother from their lives while father is reintegrated, in order to determine how and with whom they will attain a more secure attachment. This is a complicated process but one must consider here that we are dealing with a family with multiple severe problems which must be dealt with in order to help these children attain the best mental health possible. In essence, a considerable amount of intensive work must be done in order to help determine, what, in fact, will be in the best interest of the children.

The other aspect of what must be addressed here is D.G.1’s attachment to her own mother and the need for her to gain some independence from her in order to become a well functioning parent to her children. As things stand now, once the issue of the children, their father and the relationship between them has been clarified, their safety assured, and father re-established into their lives in a healthier way, one will have to address the fact of the negative view which mother and her family hold, and present of, the father. It is highly important to address the question of D.G.1’s view of the children’s father - whether her perceptions are her own or those of her mother - whether her feelings are those of having to make a choice between a healthy relationship with the children’s father or maintaining her current relationship with her mother.

[172] Dr. Goldstein concluded that “the seeds of a potential estrangement and even alienation of the children from their father have been planted. These must be nullified, the above situation addressed and further progression of this process prevented at all costs”.

August 8, 2011 - Assessment Update

[173] As indicated in the February 2011 assessment, and addressed in the consent order of March 24, 2011, Dr. Goldstein provided an update report.

...Mr. A.F. was totally cooperative throughout the treatment process and then follow-up visits. He showed himself to be readily available when called, cooperative during the sessions, and able to share his frustration at what he was going through with regard to his very limited access with his children and his rather prolonged absence from them. This has left no doubt in my mind as to his ability to put the children’s needs ahead of his own, of his willingness to cooperate with a program which would bring them the best possibilities of obtaining a healthy mental status. I would state at this time that I have no indications whatsoever that he would be of any potential harm to these children.

With regard to Ms. D.G.1 and her functioning within this situation, I am highly concerned that she seems to report to and consult with someone outside of the office where she has been seen. I cannot say for certain who this might be, but my experiences with her indicate to me that D.G.1 does not seem to be able to be responsible for some of her statements or to make definitive decisions regarding her position with respect to her situation vis a vis the children and their father. Several of my sessions with her have been followed by phone calls or emails in which she alters her statements or views.

From what I understand, the G. family - either both parents of D.G.1 or at least mother - have continued to reside with her throughout this treatment process. In other words, the children are being raised in an atmosphere, whether stated or unstated, which portrays an attitude held by those who were and are currently very much involved with and responsible for the children’s wellbeing. In this atmosphere, father is seen as being a dangerous individual with varying diagnoses which are not recognized or acknowledged by those dealing with him in his treatment or during this assessment.

[174] Dr. Goldstein raises several potent questions.

One can only surmise the effect which this is having on these children. How can they see their father in a positive and encouraging light when he cannot even be allowed to be alone with them, requires supervision while with them, and where only mother or members of her family can take the children to the washroom? What kind of picture does this give to the children? What kind of anxiety does this give rise to within them? What effect will this have upon their attaching to, become trusting of, or bonding with their father?

When I examine this current behaviour of the uncooperativeness with the assessment update and the fact that nothing seems to have altered Ms. D.G.1 about her fixed belief concerning the father of her children, I would be seriously considering a DSM diagnosis of Shared Delusional Disorder on an Axis 1 level, accompanied by Oppositional Defiant Behaviour as an Axis II addendum.

In my report of February 14, 2011, I referred to the seeds being planted of the potential of the children and the father being separated from one another by a process going on within the family of mother and her parents. Having followed the progress of this family since the time of the issuing of my original report and recognizing the current state of mother’s ongoing and seemingly unalterable belief that father is unsafe and would be of harm to his children, it is my opinion that the children are in fact at considerable risk at this time, not at the hands of their father, but by continuing to live in the ongoing poisonous atmosphere where they are currently being raised by mother with the help of her family.

[175] Quoting from his second report, Dr. Goldstein recommended that all steps required to have father reinstated as a parent without supervision be instituted at this time; the guidelines of father’s proposed plan of increased frequency of visits of the children with their father is reasonable and should be instituted forthwith. He goes on to advance the position that the children’s time with father should then be increased until they have achieved an equally shared parenting time with, and responsibilities for, the children to be put into effect by no later than mid October. [2011]. As a go forward strategy, Dr. Goldstein recommended that the family should continue to receive the help of the therapists at the Willow Centre. He stated that should mother be unable or unwilling to adapt to this schedule this should be brought to the Court forthwith or should it be clear that mother is unable to recognize and encourage the presence of the father in these children’s lives - to let go of the delusional system which helps prohibit this - then sole parenting responsibility of these children by Mr. A.F. should be immediately implemented until such time as mother and/or members of her family can reach the point that they can participate in an equally shared parenting plan for X.F.F. and S.R.F..

Dr. Goldstein’s Testimony

[176] Dr. Goldstein commenced his testimony before the court on November 9, 2011. During the course of his examination in-Chief, it came to the court’s attention that Ms. D.G.1 had initiated a complaint to the CAS alleging sexual abuse by Mr. A.F. on the eve of trial, namely on November 3, 2011. Dr. Goldstein related some of his initial concerns about the genesis of the complaint and made specific reference to an audiotape of the children’s activities that, at first blush, caused him great concern for the well-being of the children. As most of the details surrounding this audiotape were not fully known, Dr. Goldstein felt that this new information could impact on his recommendations to the court.

[177] Dr. Goldstein’s revelations about the CAS investigation and the audiotape recordings came as a complete surprise to both Mr. A.F. and to the Court. Ms. D.G.1 never advised the court that the CAS had commenced an investigation or were in the midst of another investigation when the trial commenced days earlier. As a result of the fresh and ongoing investigation, the trial was adjourned to permit the CAS to complete their investigation task and to report back to court as to the status of their efforts. Dr. Goldstein was directed to complete a further assessment based on a full review of the situation.

January 3, 2012 - Assessment Update

[178] Dr. Goldstein’s third assessment indicated that during his meeting with Ms. D.G.1, he was concerned about the state of her emotions in that she seemed to be acting in a somewhat automated fashion, continually looking to her mother for cues. With respect to the recent conduct of the mother and the nature and content of the audiotape recording he stated:

...I found them to be alarming, not only as to what was going on between X.F.F. and S.R.F., but also at the fact that mother seemed to be accepting this with the claim that it was all due to the recent visit with their father. There was little or no insight into the culpability of those responsible in their home at the time of the taping - that the harm being caused by the children’s play as demonstrated by the tape was basically occurring under her watch. She explained to me that she had checked on the children at 5 minute intervals but that X.F.F. had told her to stay out of the room because they were preparing a surprise for her.

I had several conversations with Ms. Courtney McCabe, the child protection worker from Peel CAS. She informed me of the concerns of CAS about the continued recording of these children’s play which mother continued to do even though the advisability of this had been questioned. She also felt concern about how mother was speaking to the children and reported that she had advised Ms. D.G.1 to desist from this.

From my review of the notes provided by CAS, my conversations with Ms. McCabe, my experience with Ms. D.G.1 and her visit to my office, Ms. D.G.1’s rescinding of the Direction to speak to CAS, I can only conclude that Ms. D.G.1 and her advisor/advisors are interfering with the process to determine what is in the best interests of her children.

From actually listening to the 15 minute of audio to which I was exposed[^2] I am highly concerned about the atmosphere in which the children find themselves - the significant risk to the mental health of the children, the participation of mother and her advisor/advisors which allows the taping of these children, the seeming flaunting of the process of pursuing the best interests of the children.

[179] In relating his recommendations to the court in both his report and in testimony, Dr. Goldstein’s stated:

[it] “should it be clear that mother is unable to recognize and encourage the presence of the father in these children’s lives - to let go of the delusional system which helps prohibit this, then sole parenting of these children by Mr. A.F. should be implemented until such time as mother and/or members of her family can reach the point that they can participate in an equally shared parenting plan for X.F.F. and S.R.F.”.

I would however alter this [August 2011 report] at this time by stating that this should be seen as an emergency situation where the children are in imminent danger of being harmed and I would therefore proceed by:

(a) having this change of primary residence be expedited immediately;

(b) that Ms. D.G.1 and all members of her family be prohibited from any contact - direct or indirect with the children until they have participated in a program or therapy to the point where they can recognize and deal with their delusional system;

(c) that Mr. A.F. and the children continue in the psychotherapy process to help them deal with the severe problems which X.F.F. and S.R.F. are dealing with as indicated by the occurrences which were obvious on the recording to which I listened;

(d) that the entire recording be made available to the court on an immediate basis and allow this to be listened to by the Peel Children’s Aid Society protection worker, namely Ms. McCabe, in order to help them be involved in the program to rehabilitate Ms. D.G.1 and her family to the point that they not put these children at further risk; and

(e) this situation should be reviewed after six months in order to determine whether and how Ms. D.G.1 is to have any further contact with X.F.F. and S.R.F..

[180] Dr. Goldstein’s testimony in-Chief and in cross-examination mirrored much, if not all of his observations, analysis and recommendations included in his reports. Dr. Goldstein was challenged by Mr. Handysides, counsel engaged by Ms. D.G.1 for the limited purpose of cross-examination of the assessor.

[181] Some salient points raised during the cross-examination include:

Q. So, you believe that Ms. D.G.1 and her family have effectively alienated the children away from their father?

A. No, I would not use that term because the children do not come up with all kinds of resistance to seeing their father. This is - the word alienation becomes a very touchy one. As you well know it’s involved in debates all over the country, all over North America. They have been - if they pick up the atmosphere of mother and her family then father is a dangerous person. That is what they are picking up. That’s what they are - and that’s what I’m criticizing.

Q. Your, your recommendations of removing the children from the mother’s care and placing them in the father’s care is a recommendation that you’ve made in many cases involving alienation, correct?

A. Correct.

Q. And it’s you - your belief and the belief of colleagues that, that - your colleagues that believe that alienation exists, that this is the best form of ensuring that the children don’t continue this alienation that’s occurring?

A. Yes.

Q. So, your belief and the people that believe in alienation suggest that the - your recommendation to this Court is appropriate, that the children be removed from the care of their - the alienating parents and be put into the care of the non-alienating parent, right?

A. I would like to change that if I can. I believe that any child or children who are in an atmosphere that is potentially or actually at the time harmful to them, whether it be - you, you can call it the word alienation. I can refer to tuberculosis, I can refer to smallpox, I can refer to any disease that can be a potential harm to the children, if there’s constant smoking going on, I would say that’s a major risk. Not nearly as much a risk as we’re dealing with here. Are these children alienated from their father? No. Are they being led - are they in an atmosphere where those around them believe that the father can sexually abuse, physically abuse and poison through food abuse people? I think they are going to pick up and they are going to develop a fear of or an anxiety towards that parent, something which had not yet developed when I first saw them together.

Q. So, your recommendations are based on pre-empting alienation occurring in this case; is that correct?

A. I am basing those recommendations at this time, not to pre-empt alienation but rather to stop a malignant process of seeing the other parent as a bad - not just bad but harmful and dangerous person and being - I think if we listen to the tape then - I thought I heard, maybe you people didn't hear, I thought I heard a child being treated in a way that they are being asked incessantly and more firmly, increasingly firmly, to answer a question to which the child does not yet have an answer. There’s none in his reality. But if this goes on long enough that child - to get out of a situation like that.

...When I see a case where there is a targeted parent on one side, a favourites parent on the other side and the children begin to share a delusional system with the favoured parent it is my recommendation that they be removed from that favoured parent and environment and other people who assist in this and it be given another chance to develop a position of critical thinking where they can think critically with their own perception without the fear that they are going to be punished for their own correct perceptions.

Q. Could it also be sir that the mother was concerned that the child had been harmed by the father and was simply trying to elicit from the child whether or not he had - he had been harmed? Could it not have been from a, a position of concern for that child that those questions were asked?

A. Absolutely. Absolutely that’s where it’s coming from. But, please, let me go on. The concern that the mother has is, in my opinion, an abnormal concern which cannot be, at this stage in therapy, at this stage of the treatment, this stage in the process of what’s going on, cannot be saw - I’m looking for a word that I can’t - it cannot be settled. The person cannot accept comfort. They feel and are under the feeling that these children are going to be harmed outside of either her immediate influence if they are going to be with a therapist who is protecting the child and dealing with the child, but with father there I personally would be afraid to be in a room with the child now alone without somebody else there because there is a danger lurking in mother’s mind and mother cannot, at this time, be comforted that there is no such danger, even though there have been multiple examinations or looking at the family and children by several sources, from the police, Children’s Aid Society, scan, I think several Children’s Aid Societies. There’s a few people who have tried to say, hey wait a second, let’s see, but there’s no changing of that picture. That to me, if I were doing, and I am doing here, a psychiatric evaluation, that becomes a fixed delusional system which is frightening because it is not good if that is passed on to the child or it becomes a shared delusional system.

Q. I’m going to suggest to you sir, and I’m asking this as an assessor, given Mr. A.F.’s say fragility with respect to frustration and eliciting these rage responses is it not likely that he would’ve responded the same way, with frustration and rage, if frustrated by some - by another cause such as the children?

A. I’ve been talking to you, I think, about Mr. A.F.’s strength rather than his fragility. He was under a lot of stress there. He handled himself by controlling through what do I do, how do I handled it well, talking to himself and - he didn’t hit anybody. At least I don’t even know if it’s alleged that he hit - maybe it was alleged that he hit somebody. I’d have to go back and look. But he controlled that rage. He dealt with the rage. He dealt - I don’t know how he dealt with his feelings about sitting here and listening to, to what he heard, to what we all heard. He was very frustrated in that situation and he found ways of controlling it. But he didn’t back off from the situation. He continued to be a father to the children. He continued to be fathering to his wife. When the situation was really difficult he agreed to their going to England. He set it up for them. He said - bought them the tickets. I don’t know. I think he even took them to the airport. He got an allowance for them to spend to be comfortable there. That’s the way he was dealing with some of the frustration of what was going on at home. What better can I do to make things better for these people? How can I satisfy?

Q. So, what you found - your recommendation after the first report was, you were happy, content, happy isn’t appropriate so I’ll take that back, you were content that the children live with their mother, continue to be raised day to day by their mother, you delegated the access decision to the Willow Centre and you saw no reason that the children shouldn’t continue to live with their mother.

A. No, I did not at the time.

Q. In fact, the only reason that you now see that the children should not live with their mother is your belief that the mother harbours a delusional view of Mr. A.F. and refuses to change that. That’s the, the difference, if you will, between report one and two and three?

A. No. The difference between report one and two is I recognized that there is a system in place, a delusional system in place, that does not allow mother to alter her view of what is going on that has her oppose any looking into this matter any further, at least she opposed coming for the re-update, has her oppose and question the treatment centre who is looking after the children and helping them get better.

Applicable Law

[182] Since this began as a divorce action, the issues of custody, access and child support are governed by the provisions of the Divorce Act.

[183] Section 16 of the Divorce Act speaks to the court's ability to make an order concerning the custody of or the access to any child of the marriage:

16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

16(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

16(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

16(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

16(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

16(8) Factors - In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

16(9) Past conduct - In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

16(10) Maximum contact - In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[184] The Divorce Act mandates a policy of promoting the maximum contact between a child and an access parent where practical. [^3]

[185] I have also considered the criteria as found in s. 24(2) of the Children’s Law Reform Act.

[186] Access is not awarded or withheld either to punish or reward parental behaviour.[^4] However, sometimes a parent’s conduct is so outrageous that a court will find some way to deny custody or access.[^5]

[187] The authorities provide that a parent’s conduct may affect his or her ability to care for a child in different ways. A parent’s conduct may pose a sufficient physical or emotional risk to a child that access should be limited, or, in an extreme case, denied. In conduct leading to alienation a parent may consciously or subconsciously take steps to eliminate the child from the other parent and has thus cause a breakdown in the important relationship between parent and child.

[188] Children have the right to maximum contact with both parents insofar as it is consistent with their best interests. That one parent will promote contact with the other parent while the other parent discourages access, is a relevant consideration in a custody or access case.[^6]

[189] This court should not simply delegate its duty to determine what parenting arrangement is in a child’s best interests to an assessor.[^7] The court must still be guided by the legislative principles where custody or access is in dispute in a proceeding under the Divorce Act and by the evidence that it hears in the witness box. Nevertheless, it is quite clear that the results of an assessment will be considered very carefully by the court.

[190] One of the distinct advantages of the assessment process is that it avoids the necessity of the judge having to ascertain the child’s wishes directly. In the course of the assessment the assessor will obtain the information that a judge would need to determine the child’s views and preferences (where they can reasonably be ascertained) and other facts to address the child’s needs. This, however, does not mean that courts will simply “rubber stamp” the assessor’s report.[^8]

Analysis

[191] This case is fact specific and involves an assessment of the conduct and abilities of both parties in being able to parent and meet the needs of the children. It is clear that there have been continual and repeated allegations of sexual abuse, unfit parenting skills, and psychological or mental health concerns leveled at the father by the mother. On the flip side of the equation, mother’s mental health has been raised as an issue by the various professionals involved with the children. Both parties have raised concerns about some of the dysfunctional and disassociated behaviour exhibited by the children.

[192] In this case, there is less of a disagreement over the facts, as compared to a party’s conclusion or perception of the event. However, where there is such a disagreement over a conclusion or perception of an event or a behaviour, I prefer the evidence of the applicant and his witnesses over that of the respondent.

[193] The cross-examination of the applicant focused extensively on his psychological and behaviour issues, including his “rages” and how the applicant coped with his mental health issues. Specifically, Mr. A.F. denied abuse and specific sexual abuse misconduct as alleged by Ms. D.G.1 in cross-examination. It is clear that Mr. A.F.’s version of his conduct is supported by the fact that despite repeated allegations of abuse and sexual abuse, he was never charged, warned or otherwise placed in jeopardy by any medical professional, therapist, police organization, CAS or other social agency.

[194] Mr. A.F. testified that he had been working with Dr. Layne and other practitioners and that he does not have a personality disorder. I accept Dr. Layne’s evidence that there is a working diagnosis of Bi-polar II. I also accept that he has now embraced the appropriate coping strategies.

[195] Mr. A.F. conceded facts when presented to him, admitted his weaknesses, supported Ms. D.G.1 as a good mother for his children and had significant insights into his personality and behaviour. Mr. A.F. testified candidly, forthright and I find him to be entirely credible.

[196] I accept the evidence of the applicant’s witness who testified in a straight forward manner and, for the most part, corroborated Mr. A.F.’ efforts to cope with his situation and to find the proper solutions for his parenting skills.

[197] On the other hand, Ms. D.G.1 was continually focused in trying to build a case about the applicant’s inappropriate behaviour or abusive acts as a father towards the children without any firm substantiation. At times, Ms. D.G.1 suggested the most insignificant or trivializing behaviour exhibited by the children in her attempt to demonize the father.

[198] I find that the respondent tended to exaggerate and overstate the evidence. For example, the court was presented with many photographs of the children. She attempted to point out injuries or abuse as allegedly depicted in these photographs. In my review of these photographs, no demonstrable or significant injury is noted. While there were some marks, scratches, bruises and other minor cuts, I am unable to conclude that the pictures augment Ms. D.G.1’s concerns about abuse. There was a photograph depicting X.F.F. walking around naked, drooling, with a saturating shirt, no pants on, and he appeared to be quite upset. This was alleged to depict some form of abuse at the hands of the father. Ms. D.G.1 raised her concerns to the Halton CAS and Police and furnished the authorities with these photographs. There was no follow-up investigation and the police and CAS had no concerns. I am unable to reach any different conclusion.

[199] I find that Ms R.G. was evasive and non-responsive to questions posed in cross examination. For example, she was asked about Dr. Collins’ testimony that although Mr. A.F. may have a complicated psychological make-up, he did not have any concerns about him being a parent for the children. Ms. D.G.1 responded that she did not recall that testimony, but recalled that Dr. Goldstein acknowledged that there was some sexual abuse. The sexual abuse referred to by Dr Goldstein was centered on the children’s interaction with each other and not with their father.

[200] She testified that it was difficult for her to get the required assistance from any social agency, in part because of the ongoing divorce and custody proceedings and no health care professional wanted to be involved. She did not offer insightful explanations as to why none of the other agencies or therapists supported her allegations or concerns.

[201] When Ms. D.G.1 testified that these recordings were shown to the CAS and police and yet, no investigation ever ensued. She added that while she noticed many individuals were very alarmed by the nature of the recordings, it is possible that these agencies may be unfamiliar with their family and she was not aware as to how their decision making process is carried out.

[202] Ms. D.G.1 was asked about the statements in her affidavit before Justice Hourigan claiming that, at the time, there were active or ongoing CAS and police investigations. Ms. D.G.1 responded that Mr. A.F. would have to go back to Justice Hourigan and review the affidavits to understand why the judge’s decision was made.

[203] When asked whether her late or non-disclosure of the children’s change of schools or daycare could affect Mr. A.F.’s agreement or disagreement with her decision, Ms. D.G.1 responded that, “I thought you would’ve been supportive of that because French was important. It was a stimulating environment with a lot of kids their own age and I thought you would be satisfied”. She testified that the reasons for her recent move to some unknown location in Mississauga and not providing Mr. A.F. with her current address was due to her being fearful of Mr. A.F., The explanations provided by Ms. D.G.1 in support of that fear did not make sense.

[204] Ms. D.G.1 testified that the idea of recording the children was Mr. A.F.’s idea. When asked how Mr. A.F. gave her that idea, her explanation to the Court was irrational.

[205] I find that at times, Ms. D.G.1 was less than candid with the court and there were several significant inconsistencies in her testimony. For example, Ms. D.G.1 testified about the audio and video recordings. First, she testified that there were two or perhaps, several recordings. Much later in the proceedings, the Court was informed that there were many video recordings and over 50 audio recordings. Ms. D.G.1 reluctantly testified about her surreptitious recordings of her interactions with Mr. A.F. during the drop off and pickup of the children.

[206] As mentioned, Ms. D.G.1’s arguments focused on Mr. A.F.’s initial psychological assessment by Dr. Collins in early 2010. However, when asked about her own psychological testing, she dismissed the results as having been completed in early 2010 and at a time when the children had significant behavioural issues which impacted her results. While Ms. D.G.1 is dismissive of her own testing, she does not seem to acknowledge or accept that the preponderance of evidence supported a positive change in Mr. A.F.’s mental health in contrast to his 2010 psychological testing.

[207] I find that Ms. D.G.1’s testimony and submissions demonstrate her unwillingness to facilitate any meaningful contact between the father and the children. This includes her unilateral decisions affecting the children without input from their father. It also is reflected in her testimony that she was forced to accept the March 24, 2011 consent order; she was compelled to agree to the treatment plan in December 2010, her view that the Willow Centre did not have her signed informed consent to treatment; and that she felt that there were demands or threats from Mr. A.F. in his requests for enhanced access.

[208] Ms. D.G.1 provided statements to the court which caused concern about her insights into her children’s needs and issues. Her explanation as to why no police service or agency substantiated her concerns of abuse was that there were very strict limitations on the police and social agencies. If a child does not personally come out and reveal something or fails to disclose, there is nothing these agencies can do. Does this mean that a social agency would never be able to act on an allegation of abuse from a child who could not express himself or herself? Ms. D.G.1 also testified that it was unfortunate they never got to the SVU Unit in Peel because they have an understanding of these types of issues. Is she suggesting that all of the other professionals or social agencies involved in this case lack the appropriate skills or competencies to detect abuse?

[209] When asked about all of the health care professionals testifying that they are not concerned about Mr. A.F. with the children, Ms. D.G.1 testified that Mr. A.F. is a client of Ms. Parker and a client of Dr. Collins and there is a lot of one-way communication. He is a friend to Joanne Irvine and Caroline Rumble. There is a different experience between himself and herself with Dr. Goldstein. She believed that the witnesses have a different perception and they are supporting Mr. A.F. based on the information that he has provided to them.

[210] Much has been discussed about the alleged abduction of the children. I do not find that this event is significant in my overall assessment of the evidence. However Ms. D.G.1’s actions in returning to Canada and her activities while in Canada during January 2010 without informing Mr. A.F. do speak to her unstated intentions in her desire to eliminate or mitigate the father’s involvement.

[211] Of significance to me is the fact that Ms. D.G.1 does not limit her degree of paranoia to Mr. A.F.. Her constant worry and fear about the children’s safety and well being is also directed to her trepidation about the inadequate supervision of the children while under the care of the professionals and staff at the Willow centre.

[212] I do not share Ms. D.G.1’s concerns. It seemed apparent to me that the Willow Centre staff and in particular, Ms. Parker, had the best interests of the children in mind during these therapy sessions. Ms. Parker’s testimony was replete with examples of positive behaviours and helpful strategies being employed to assist the children with their therapy. However, Ms. D.G.1 did not see it in that light. Ms. Parker’s opined that that the mother and maternal grandmother did not wish to cooperate with the centre and they did not appear to be amenable to facilitate enhanced participation by the father with the children. Ms. Parker stated that the mother wanted to keep proving her point that Mr. A.F. abuses the children to substantiate her concerns.

[213] I am not basing this decision on any single incident. However the October 6, 2011 event informs the court as to the pattern and degree of effort Ms. D.G.1 and her family will go to in advancing their cause in order to garner some evidence against the father. I agree with Ms. Parker that this entire episode was totally inappropriate and the mother exhibited poor judgment demonstrated how stressed the mother must have been at the time to record the children in order to find some evidence to support her fixations.

[214] Ms. Parker had concerns about the mother’s reporting of sexualized behaviour. While she accepted Ms. D.G.1’s concerns, her opinion was that there was a disconnect as the children's relationship to Mr. A.F. demonstrated no fear or sexualized behaviour of any kind during play or therapy. On the same topic, Ms. Parker testified that her concerns were escalating as the children were picking up the stressors from their mother. The children were very aware that the mother was so concerned about their safety with their father and that anticipation of fear and distrust of their father was being instilled in the children. The message being implanted in the children was that it was better not to see their father, almost to the exclusion of all other options. This is another explanation for the children's behaviour and their disorganized attachment.

[215] Dr. Parker testified that the goal of the treatment plan was to permit the parents to be more reflective in the dealings with the children and hopefully each parent could create an environment where they felt safe. I am satisfied that Ms. D.G.1 made some advances with her therapy. However, it appears to me that Ms. D.G.1 remained fixated on the premise that the therapy at the Willow Centre was for her to be the children’s “protector”. It does not appear that Ms. D.G.1 had truly internalized the goals and objectives of the therapy.

[216] Frankly, if there was an occasion where Ms. D.G.1 might have said something or perhaps anything favourable or supportive of Mr. A.F. vis-à-vis his parenting role, I must have missed it. This is in stark contrast to Mr. A.F.’s testimony. Further, if there was any opening for Ms. D.G.1 to get another negative observation about Mr A.F. during a question, she took that opportunity even though the question did not call for such a response.

[217] Ms. D.G.1’s witnesses described their observations of the children, some of which were indeed, very troubling. Despite the evidence from Ms. D.G.1’s witnesses, whose evidence I accept for the most part, I am not persuaded that the children’s sexualized or abnormal behavior is in any way linked or caused by the father’s interactions with his children. Ms. D.G.1 and her father painted a disturbing timeline with respect to the children’s improvement and degeneration of behaviour which fell in tandem with Mr. A.F.’s contact and removal from their lives. While I accept the evidence as to a witness’ observations, none of these sexualized behaviours or other acts of abuse have been established or corroborated by any of the experts or mental health witnesses. Ms. D.G.1 urges this court to draw a conclusion or inference linking the children’s disturbing or abnormal behaviour to Mr. A.F.’s conduct and involvement with them. I am not persuaded that such an inference can be drawn and, in my opinion, any such causal connection has not been established by the evidence before me.

[218] Ms. D.G.1 requests that the court not to consider Dr. Goldstein’s as found in his various reports on the basis of bias, an incomplete review, erroneous assumptions and his unwillingness to address her observations and concerns. Ms. D.G.1’s disagreement with Dr. Goldstein’s reports was quite evident.

[219] With respect to his final report of January 3, 2012, Ms. D.G.1 submits that Dr. Goldstein cannot substantiate his findings as there are too many unanswered questions with respect to X.F.F. and S.R.F.’s behaviour. She disagreed with all of Dr. Goldstein’s conclusions including the suggestion that she has delusional or paranoia traits. The Court acknowledges that some of the opinions surrounding Ms. D.G.1’s mental health status is based on limited information as there was no formal clinical or psychological testing conducted. While I am not making a specific psychological finding with respect to Ms. D.G.1, this Court must consider the totality of the evidence and the ability of each parent to meet the needs of the children.

[220] I accept that Dr. Goldstein considered the initial engagement letter from Mr. A.F.’s counsel, which was later reported to him by Ms. D.G.1’s counsel as being one-sided. Subsequently, Ms. D.G.1 provided Dr. Goldstein with updated information as to her own observations. While objectivity should not be presumed, even with a court-appointed assessor, I accept that Dr. Goldstein was not influenced by one counsel’s engagement letter and he had considered all of the information provided to him from all sources, including clinical reports and, more importantly, his own personal observations.

[221] I have considered Dr. Goldstein’s qualifications, methodology, factual determinations and I find Dr. Goldstein’s testimony was credible, unbiased and reliable. Based on his extensive experience, Dr. Goldstein did everything in this assessment he was required and would normally do. In my view, Dr. Goldstein’s review of the facts and information received from various sources have been borne out and confirmed by independent, credible and trustworthy evidence. The foundation for his opinion has been amply established by the testimony of various witnesses and professionals, which I accept; many of whom echo much of Dr. Goldstein’s findings and concerns underlying his report.[^9]

[222] Despite a very able effort by counsel, Dr. Goldstein was unshaken in cross-examination. While at times Dr. Goldstein tended to support his position with more inflection or emphasis than one might expect from a neutral assessor, in my view, he did not cross the line in becoming an advocate for one side or the other. While there may have been some minor inconsistencies with respect to the volumes of information received by him and the testimony heard during this trial, I find those inconsistencies to be insignificant.

[223] Dr. Goldstein’s report and testimony portray a rather shocking picture of Ms. D.G.1 and the maternal grandmother. On the evidence before the court, I have no hesitation in finding that X.F.F. and S.R.F. have been affected unjustifiably by their mother and grandmother and are displaying adverse behaviours and suffer from disorganized detachment.

[224] Mr. A.F. presented valid parenting plans or proposals to Ms. D.G.1 based on Dr. Goldstein’s recommendations and yet, all of these overtures were rebuked. The last question posed to Ms. D.G.1 by Mr. A.F. in cross examination was most insightful.

[225] It is my view that Mr. A.F. has taken all of the appropriate steps and has the best interests of the children at heart. He has selflessly conducted himself with patience and restraint during the course of de facto alienation, and potent and repeated false allegations leveled against him over the years.

CONCLUSION

[226] As stated at the outset, this is a very troubling and complex matter. I have considered and weighed all of the evidence and have heard the submissions of the parties. The court is mindful of its obligation and duty. It is not for any witness, Dr. Goldstein or any other expert, to make the decision as to the best interests of the children. That decision rests solely with the court based on credible and reliable evidence and the application of the appropriate legal principles.

[227] I accept that the children suffer from disorganized attachment and that they do not feel safe. I accept that the mother’s path of paranoia and course of conduct has and continues to adversely influence and affect the children and this continued behaviour will eventually lead to further behavioural problems. The plethora of serious, unsubstantiated and bald accusations of abuse by Ms. D.G.1 and her mother, coupled with the continual roadblocks to Mr. A.F.’s meaningful contact with his children has gone on for several years.

[228] The evidence demonstrates that Ms. D.G.1 was not satisfied with the efforts and assistance of the therapists at the Willow Centre, the CAS in Halton and Peel, the Halton Regional Police, the Peel Regional Police, the SCAN unit, and various other doctors or health care practitioners. In Ms. D.G.1’s opinion, no therapist, doctor or social service agency has ever truly answered her concerns about the children. I doubt that any agency or professional will ever be able to meet her expectations absent a total recommendation by someone to eliminate the father from the children’s lives. Ms. D.G.1 refuses to acknowledge that she or her family may be the genesis or a part of the problem leading to the children’s disorganized attachment issues.

[229] I have considered the evidence and specifically noted the mother’s conduct in court, her responses to questions, her testimony and her questioning of witnesses. In my view, her fixation on the children and her unwillingness to accept that her perceptions may be false, erroneous or worse, is clearly borne out and corroborated by the evidence, her questioning and her own demeanour.

[230] Despite many complaints raised by Ms. D.G.1 over the years, no agency, police organization, CAS or health care professional has ever substantiated her allegations and no charges were ever laid. I find that these repeated and unsubstantiated allegations by Ms. D.G.1 have had an adverse impact on the children but have also tarnished Mr. A.F.’s reputation.

[231] The court is mindful that the maximum contact principle requires children to have as much contact with both parents as is consistent with their best interests. The court must address each parent's willingness to foster that contact. Mother's past conduct shows she is not willing to foster the children’s contact with their father, with the therapist or being able to address her own mental illness. While I do not have direct evidence as to the mother’s mental state, I find that I am able to draw reasonable inferences as to the very troubling mental state of Ms. D.G.1 based on the evidence of the witnesses and professionals who have testified before me.

[232] X.F.F. and S.R.F. need to have a relationship with both parents. I have no doubt that their mother loves and cares deeply for her children. Her love and devotion to her children cannot be disputed and was never challenged.

[233] However, the children’s mother and maternal grandmother have deliberately undermined the children’s relationship with their father. This continual assault on the children’s psyche by mother’s and grandmother’s stated, inferred or unconscious conduct has gone much further than just the potential for parental alienation. It has come to the point, - and according to Dr. Goldstein, past the point- of actual harm to the children. However, given the young ages of the children, the harm is not irreversible.

[234] The expert and therapists’ evidence before the court is quite firm and direct. One thing is abundantly clear. The children will likely, if not probably, experience future significant problems if the court does not intervene. The totality of the evidence in this hearing, which I accept, postulates that the children will not be able to establish a positive and nurturing relationship with their father while remaining in their mother's care and control. These children have already been traumatized by the family conflict.

[235] I find Dr. Goldstein was entirely credible, and I accept his conclusions and recommendations. I find that Dr. Goldstein’s evidence is amply supported by other witnesses, whose evidence I accept, including Dr. Layne, Ms. Parker, Dr. Parker and the other professionals at the Willow Centre.

[236] I am satisfied that the applicant has put forward a parenting plan for the care and possible treatment of the children. I am satisfied that the father offers the best plan to satisfy X.F.F.’s and S.R.F.’s needs. Further, I am satisfied that Mr. A.F. and his extended family and friends, including the support professionals and the adult supervisors who assisted Mr. A.F. can provide the care and support for the children. Based on Mr. A.F.’s evidence and submissions, I am convinced that in due course he will do all he can to facilitate contact between the children and their mother at the appropriate time.

[237] In my view, Ms. D.G.1 and her mother’s past conduct has been absolutely contrary to the children’s best interests, and is therefore relevant to her ability to act as a parent to X.F.F. and S.R.F.. I do not feel that Ms. D.G.1 has the appropriate reflection skills or any recognition of the existing true needs of the children. At this juncture, I am not at all satisfied that Ms. D.G.1 will do anything to facilitate any meaningful and positive contact between the children and their father or reduce her level of fear or lack of safety regarding their father, if the status quo continues, in fact quite the contrary.

[238] After much deliberation, in my view, the best interests of the children require that there be an immediate change in custody. The relief being provided, while unusual, is not without precedent. In the case of J.K.L. v. N.C.S., 2008 30289 (Ont. S.C.) Justice Turnbull granted an order, much along the same lines as the Order this Court is contemplating. While this case has not reached the level of extreme parental alienation, I am satisfied that the legal principles are equally applicable.

[239] Although a wholesale change of custody and residency might be viewed as a drastic solution, these remedies have been used by courts in cases of extreme alienation. While I have not found parental alienation, per se, I find that there exists extreme irrational and paranoid behaviour by one parent which has adversely affected the well being and the needs of the children. Often it is a very difficult decision when both parents care and love their children. However, the evidence points overwhelmingly to a change in custody. I am persuaded that the father puts the children’s interests first, not his own. In this sense, the children have a chance, down the road, of developing a healthy relationship with both parents with an appropriate sense of safety, only if they are in their father’s care.

[240] As I see it, the professionals at the Willow Centre and Dr. Goldstein can continue to assist the father and the children. Regrettably, they cannot assist the mother as she has lost trust in these professionals. It is to the children’s and their father’s benefit to continue counselling and therapy. The father will have sole discretion to decide what is in the children’s best interests as far as medical, educational or psychological treatment is concerned. All these terms are necessary to permit father to parent X.F.F. and S.R.F. in their best interests.

[241] The goal of this order is to eventually re-establish the children's relationship with Ms. D.G.1 and her family and also to ensure that when the children are re-connected with their mother, that nothing is done again to undermine either parent's relationship with the children. In making this Order, I am hopeful that Ms. D.G.1 and the maternal grandmother will participate in therapy or counselling and seek out the resources that will enable them to be reintegrated into the lives of X.F.F. and S.R.F.. If they choose not to actively participate, then the children must be separated from the harm of the mother and their maternal grandmother until the court decides it is appropriate for the children to see them again and under what circumstances.

[242] Finally, I accept Dr. Goldstein’s concerns that the children are in a state of actual harm as distinct from the risk of harm. As hard as this transition may be, I find that it is in the best interests of X.F.F. and S.R.F. that they be placed in the care and sole custody of their father, and immediately.

DISPOSITION

[243] Therefore, the following Final Order will issue:

1. Pursuant to Section 16 of the Divorce Act, Mr. A.F., (“the father”) shall have sole custody of the children of the marriage, X.F.F. born […], 2007 and S.R.F. born […], 2008.

2. This order is to take effect immediately and the children are to be transferred to the father following the conclusion of this proceeding. In the event that the children are not currently at the court house, it is ordered that X.F.F. and S.R.F. are to be taken into the care and control of their father at any place where they may be situated. This transfer of the children into the care and control of Mr. A.F. shall occur without any interference or disruption by the respondent or the respondent’s immediate family or any other person; and any assistance, if need be, shall be provided by the local police department or the Children’s Aid Society.

3. Pursuant to s. 141 of the Courts of Justice Act, and s. 36(2) of the Children's Law Reform Act, the Sheriff of this court's jurisdiction, the Halton Regional police, the Peel Regional police, the Ontario Provincial Police, and the Royal Canadian Mounted Police, and all enforcement officials to whose attention this Order is brought shall assist, if required, for enforcing the provisions of this Order, and shall specifically take all such action as is required, and are authorized and directed to enforce this Order, and further, to do all things that may be reasonably done to locate and apprehend X.F.F. and S.R.F., and deliver them to the care and custody of Mr. A.F., and to enter and search any place at any time of day or night, where he or she has reasonable or probable grounds to believe that the children may be, with such assistance and such force as is reasonable in the circumstances to locate, apprehend and deliver the children to the Applicant, as provided above, including the power of search and entry at any time.

4. The children shall reside with the father in the Halton Region and shall not move from the Halton Region without the prior consent of the court.

5. Pursuant to s. 16 of the Divorce Act and s. 35 of the Children's Law Reform Act, and subject to paragraph 6 below, Ms. D.G.1 (“the mother”), the maternal grandmother or any member of the G. immediate family are restrained and prohibited from having any access or contact, direct or indirect, or causing any contact, direct or indirect, with the children or with the applicant pending a review of this matter, as referred to below, and save and except for the purpose of counselling as also referred to below at paragraph 12, or for the purpose of limited email communication with the applicant as set out in paragraph 6. This Order of restraint of any contact by Ms. D.G.1 and her immediate family with the children applies to all places where the children attend, including, without limiting the generality of same, the father’s home, their school, parks, malls or place of recreation. This term shall remain in effect until the review of this matter.

6. For greater certainty, Ms. D.G.1, her mother D.G.2 or any member of Ms. D.G.1’s immediate family is not to harass, annoy or molest, or attend within 300 metres of, nor have any contact with Mr. A.F., X.F.F. or S.R.F. or Mr. A.F.’s immediate family. Ms. D.G.1 and her immediate family are not to contact, associate or communicate directly or indirectly with Mr. A.F., except through email for the purpose of providing Ms. D.G.1 with routine updates about the children’s welfare and activities, for emergency situations, for scheduled medical and dental appointments and for the purposes stipulated in para. 12 below. This email communication shall remain cordial and conducted in a civilized tone and manner. In the event that there is a breach of this condition of email communication either by content or conduct, the matter is to return before me. This term shall remain in effect until the matter returns to court for a review.

7. Mr A.F. shall have the sole authority to pursue whatever action is necessary to enable the children a transition of least conflict in the actual transfer of physical custody from Ms. D.G.1 to Mr. A.F. including but not limited to participation in a therapy and counselling sessions or an immediate change of schools or daycare facility.

8. Mr. A.F. and the children shall participate in follow-up counselling or therapy sessions with Dr. Sol Goldstein, who has consented to provide such counselling. Further Mr. A.F. and the children shall participate in counselling as may be arranged, directed or facilitated by Dr. Goldstein or the professional staff at the Willow centre or any other therapy or counselling centre arranged by the health care professionals in consultation with Mr. A.F.. Mr. A.F. shall pay the costs of all of the aforesaid services, subject to a reapportionment of the costs upon a review of this matter, as set out below.

9. Ms. D.G.1 and any member of her immediate family are encouraged to seek the appropriate counselling or therapy as suggested by Dr. Goldstein or the other health care professionals as mentioned in this judgment.

10. Mr. A.F. and Ms. D.G.1 shall cause Dr. Goldstein to conduct a re-assessment concerning the results of the attendance and therapy by the children at the Willow Centre, or any other counselling, or therapy provided to the children or to their parents, and the results of such counselling, treatment or therapy. Dr. Goldstein is to provide this court with a written report of his assessment and recommendations concerning the intervention as described above, and the report shall be delivered to the parties and this court no later than June 29, 2012. The parties and the children are to participate in the follow-up assessment and shall cooperate fully with Dr. Goldstein. Both parties are to compensate Dr. Goldstein for this assessment and report.

11. Ms. D.G.1 is to arrange delivery to the applicant’s home the clothing and belongings of X.F.F. and S.R.F. on or before February 9, 2012. Neither Ms. D.G.1 nor any member of her immediate family is to attend at Mr. A.F.’s residence personally and Ms. D.G.1 shall make the appropriate arrangements for this delivery through email communication with Mr. A.F..

12. Notwithstanding the aforementioned, Ms. D.G.1 may be permitted access to X.F.F. and S.R.F. if the medical professionals or therapists at the Willow centre, or Dr. Goldstein deem it appropriate and beneficial for the children in the furtherance of the counselling or treatment of the children to engage in such supervised visits with their mother. This discretion for supervised access shall remain in the sole discretion of the aforementioned medical professionals or therapists and shall be undertaken under the supervision of a designated mental health care professional treating X.F.F. and S.R.F..

13. As custodial parent, Mr. A.F. may take any action or make any decision regarding the well being of the children, without the consent permission or input of the respondent, including but not limited to, education, day care, language, religion, travel, health, therapy or counselling (over and above the directions contained in this order) or any other activity beneficial to the children’s well being.

14. Mr. A.F. shall have sole control and custody of the children's passports and the lawyer holding the passports in trust, is hereby directed to turn the children’s passports over to Mr. A.F.. Ms. D.G.1 shall sign such consents as are required to enable Mr. A.F. to obtain a passport in the children's names should they require renewal. If Ms. D.G.1 fails to provide such consent, Mr. A.F. may apply for a passport for the children without the respondent’s consent or permission.

15. The three assessment reports prepared by Dr. Goldstein and filed in this proceeding are to be released to the Willow centre or any professional treating the children and may be released to the Halton or Peel Children’s Aid Society, if so requested.

16. Pending the review of this matter, there shall be no order with respect to the children’s s. 7 expenses. Mr. A.F. shall pay all extraordinary expenses with respect to the children. Mr. A.F. may retain receipts for these activities and the issue of section 7 expenses may be revisited for apportionment upon the return date to court.

17. Ms. D.G.1 shall pay guideline child support to Mr. A.F. in the amount of $1,174.15 per month based on her income of $79,731. These payments are to commence effective February 1, 2012. There shall be no order with respect to any retroactivity of child support obligations.

18. A support deduction order shall issue.

19. This case shall be reviewed and this Court remains seized of this matter. On July 5, 2012, the parties shall return before a judge of the Superior Court in Milton to set a date for the review of this matter. The date for this review will be arranged with the assistance of the Milton Superior Court Trial Coordinator in conjunction with my availability. It is ordered that seven days prior to the date eventually selected for this review, each of the parties shall file affidavits relative to the events which have transpired since the making of this Order. The affidavits are to also include particulars of any counselling with which the parties are involved. Dr. Goldstein’s follow-up assessment shall also be provided to the court.

20. A divorce order shall issue, effective 31 days from the date of this order.

21. A copy of this order shall be provided immediately to the Halton and Peel Children Aid Societies.

22. The costs of this trial are reserved until the review of this matter before me.

A.J. GOODMAN J.

Date Released: February 3, 2012

COURT FILE NO.: FS 431/10

DATE: 20120203

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

A.F.

Applicant

• and -

D.G.1

Respondent

REASONS FOR JUDGMENT

A.J. Goodman J.

Released: February 3, 2012

[^1]: It should be noted that Dr. Layne’s assessment of the applicant mental state was consistent with Dr. Goldstein’s.

[^2]: The court heard the October 6, 2011 audiotape and the entire tape was about 100 minutes in duration.

[^3]: See Gordon v. Goertz, 1996 191 (S.C.C.)

[^4]: Martin v. Martin (1998), 1998 18006 (NL CA), 42 R.F.L. (4th) 251 (Nfld. C.A.). See also Gordon v. Goertz.

[^5]: Grealy v. Lees, [2000] B.C.S.C. 217 (S.C.); Ackland v. Olson, [2000] B.C.J. No. 1314 (S.C.). In MacArthur v. MacArthur, [2009] O.J. No. 1714 (Ont. S.C.J.)

[^6]: Orszak v. Orszak (2000), 2000 22529 (ON SC), 8 R.F.L. (5th) 350, [2000] O.J. No. 1606 (Sup. Ct).

[^7]: See Strobridge v. Strobridge (1994), 1994 875 (ON CA), 4 R.F.L. (4th) 169 (Ont. C.A.); Behrens v. Stoodley (1999), 1999 1626 (ON CA), 3 R.F.L. (5th) 8 (Ont. C.A.).

[^8]: Weaver v. Tate (1989), 1989 8780 (ON SC), 24 R.F.L. (3d) 266 (Ont. H.C.J.), aff’d at (1990), 1990 12309 (ON CA), 28 R.F.L. (3d) 188 (Ont. C.A.).

[^9]: See R .v. Mohan 1994 80 (SCC), [1994] 2 S.C.R. 9