COURT FILE NO.: FS-12-00375231

DATE: 20130806

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Victoria Fielding

Applicant

– and –

John Craig Fielding

Respondent

Gary S. Joseph and Christine Marchetti, for the Applicant

Ilana I. Zylberman and Michael Zalev, for the Respondent

HEARD: February 25-28, March 1, 4-8, 27, 28, April 2, 4, 5, 2013

REASONS FOR JUDGMENT

J. Mackinnon J

[1] The three Fielding children are Katie, turning seventeen years of age this August, and twins, Sean and Natalie, turning fifteen years of age, also in August. Their parents have disputed the children’s care and living arrangements since the fall of 2010, even prior to separating. A dysfunctional intact family became a highly dysfunctional separated family. None of the children has escaped unscathed.

[2] The theory of the mother’s case is that the father acted pre-emptively to alienate Katie and Sean from her. She says that his favouritism of Katie has created sibling rivalry between the sisters and that the father has essentially abandoned Natalie. The mother seeks sole custody of all three children. She asks that the father have no access to any of the children until recommended by a family therapist whose assignment shall include repair and re-establishment of healthy parent-child relationships and of relationships between the children, and parent-child reunification.

[3] The theory of the father’s case is that the mother’s behaviour and lack of insight into how her behaviour has affected the children are primarily responsible for her relationship problems with Katie and Sean. He says she has had a troubled relationship with Katie for years and has made Sean afraid of her. He does not agree that he has abandoned Natalie but agrees the relationship needs work. The father seeks sole custody of Katie and Sean and joint legal custody of Natalie with primary residence to the mother. He proposes that Katie determine when she will see her mother. He proposes an overnight visit for each of Sean and Natalie with their non-residential parent and that the twins spend weekends together alternating between the parents’ homes. His proposal for therapy includes individual therapy for each child and dyadic therapy for the mother and Katie, for the mother and Sean, and for himself and Natalie.

Background Facts

[4] The parties filed an Agreed Statement of Facts at the opening of trial. Much of this background summary derives from it. I have made the other findings of fact included here. The parties were married in June, 1993. The applicant is now 56 years old. The respondent is 55 years old. Both are physicians. The applicant is an urologist and practised in that field until 2007 when she retired for health reasons. The respondent is a plastic surgeon, practising in the areas of cosmetic and reconstructive surgery.

[5] The applicant remained home for several months when the children were born. Her mother helped look after the children when she returned to work. Nannies were also engaged. Each child started to attend Montessori school for half days at age three. From Montessori, each child entered private school. Katie has attended University of Toronto Schools (“UTS”) and then Branksome Hall. Sean attended Royal St. George’s College (“RSGC”), followed by UTS and is now back at RSGC. Natalie has attended Branksome Hall since grade 7.

[6] In May 2010, Katie began complaining more and more about feeling anxious and stressed. She was seen by Dr. Keyhan, a psychiatrist at the Hospital for Sick Children. Katie was diagnosed with Adjustment Disorder with depressive and anxious features, and Generalized Anxiety Disorder. Dr. Keyhan recommended psychotherapy for her. The respondent set up an appointment for Katie to see a therapist Dr. Keyhan recommended, Bonnie Gibbons-Fahey, but did so without the mother’s knowledge. She found out a week or two later. Katie is still continuing to see Ms. Gibbons-Fahey.

[7] Dr. Keyhan noted in her report that Katie described a lot of anxiety around her school work. She was very anxious about her school performance. She was often tired and stressed by the amount of homework she had, and reported having problems with sleep for as far back as five years. Dr. Keyhan also noted that “a major source of stress was related to the family dynamics. Katherine said that she does not share any of her worries or stressors with anybody. There has been some stress in the relationship of her parents which she is very sensitive to. Katherine also described a difficult relationship with her mom and noted that she often feels that she is not meeting mom’s expectations and at times wonders if her mom loves her. She often worries that her mom might yell at her. She feels that at times her mother is harder on her than she is with the other children.” Later in her report, Dr. Keyhan said that Katie was tearful at times, “particularly in our separate meeting as she talked about the anxiety associated with her mom.” With respect to the mother, Dr. Keyhan stated that she was “concerned that her mom is suffering from her own mood and anxiety challenges. The difficulties do appear to impact adversely on her relationship with Katherine.”

[8] The applicant thought that Dr. Keyhan’s assessment pointed to a major problem with Katie’s anxiety and a minor problem with Katie’s relationship with her.

[9] Dr. Keyhan also recommended that each parent seek individual psychotherapy. The father started to see Dr. Driver for this purpose. In October 27, 2010, based on information received from the father and while he was in session with her, Dr. Driver called in a report to the Children’s Aid Society (“CAS”). The CAS became involved with the family shortly thereafter.

[10] The mother began to see both Dr. Irving and Dr. King for counselling in November 2010. Her family physician has also provided supportive counselling.

[11] In early November 2010, the father took Katie for a “respite” night to his sister’s home. He would not tell the mother more than that Katie was with a “rational adult”, prompting her to call the police. Then, on November 6, he moved Katie into the home of friends where she remained until December 23, 2010. The CAS supported this decision. By December 23, the father had arranged for separate accommodation for himself and Katie.

[12] From November 6 forward, the mother made repeated efforts to see and contact Katie. Eventually, a visit was arranged for them for February 16, 2011 at the CAS offices.

[13] After the father moved into his own home, Sean told his mother he wanted to spend equal time with each parent. She did not agree. The parents were unable to agree to an access schedule for Sean and Natalie. The twins both lived primarily with their mother until January 2012. In that month, Sean moved over to his father’s. He is currently seeing his mother infrequently for short periods of time. Natalie has continued to reside with her mother. Her contact with her father is quite limited.

[14] In December 2010, the parents retained Dr. Peter Sutton to conduct a custody and access assessment. He made interim recommendations in June 2011. He recommended equal time sharing for the twins, joint decision making assisted by a parenting co-ordinator and family therapy in an attempt to address the complex and interrelated relationship difficulties in the family. In particular, he referred the parents to Dr. Fidler to act as parenting co-coordinator. She could not undertake this role because the parents were unable to agree on a parenting schedule. Instead, Dr. Fidler tried to mediate a parenting plan. These efforts were not successful.

[15] In the meantime, Dr. Lojkasek had been retained for the family therapy. Ultimately, this broke down. One of the obstacles was that there was no agreed upon parenting schedule in place. This resulted in Dr. Lojkasek dealing with issues that deflected the therapy away from its intended purpose.

[16] There was a significant incident after one session with Dr. Lojkasek on October 11, 2011. Sean did not want to go home with his mother. He got into his father’s car. The mother stood in front of the car and refused to move. Eventually, the police were summoned. Sean ended up going home with his father. All of the children were present throughout this session and its aftermath.

[17] A problem also occurred during the 2011 Christmas holidays. The mother picked Sean up one day during the holiday from an orthodontic appointment and instead of returning him home, told him she was taking him away for a few days to Great Wolf Lodge. Sean did not want to go. He persuaded his mother to stop the car for a washroom break and ran off. He called his father to pick him up. Sean has lived with his father and has been reluctant to have regular contact with his mother since then.

[18] A dinner was arranged between Katie and her mother over the Christmas period 2011.

[19] Essentially, no progress had been made in relation to the interim recommendations Dr. Sutton had made in June 2011. In the winter of 2012, the assessment started up again. Dr. Sutton’s written report is dated July 29, 2012. It is 220 pages long. He did not think that parental alienation was the main source of Katie’s rejection of her mother or of Sean’s partial rejection of his mother and Natalie’s partial rejection of her father. Rather, he thought this was a “mixed” case where the outcomes derived from factors in the parenting of each parent, factors in the ideas that each parent had about the other and the way in which they conveyed those to the children, and factors in each child. He also was of the opinion that these problems had a long history pre-dating the parents’ separation.

[20] Dr. Sutton recommended that Katie remain living with her father and in his legal custody. He did not think she should have contact with her mother except in a program of dyadic therapy. This should be tried once per week for nine months to see if it was of assistance or not. Katie should also continue individual psychotherapy.

[21] Dr. Sutton recommended that Sean remain primarily resident with his father and in his legal custody. He recommended a specified access schedule with his mother. He and she should be involved in dyadic therapy. Sean would likely benefit from individual psychotherapy.

[22] Dr. Sutton recommended that Natalie remain primarily with her mother with a specified visitation schedule with her father. Legal custody for Natalie should be shared between the parents. There should be dyadic therapy for the father and Natalie.

[23] Dr. Sutton also recommended both parents have individual psychotherapy.

[24] It appears that in July 2012, his goals were more limited than they had been in June 2011. In the final report, he set out the following goals:

• To provide the children greater freedom from the conflicts between their parents that they have been immersed in over the last two years;

• To provide the parents some relief from the chronic conflict between them;

• To address some of the dyadic relationship difficulties between the children and their parents; and

• To address some of each parent’s psychological and related parenting difficulties.

[25] Dr. Sutton accepted that, in severe cases of pure alienation as opposed to mixed cases, it may be appropriate to remove the child from the alienating parent. He also accepted that in such a case, the rejecting conduct of the child quickly disappears. In severe cases, leaving the child with the alienating parent would mitigate against recovery. He acknowledged the long term risks to alienated children include depression, trust and self-esteem issues, and impaired adult relationships.

[26] The passage of time, entrenched positions, and ages of the children make this a difficult case. Should the court accede to the expressed views of the children, should the court order therapeutic intervention and, if so, based on what parenting arrangements for the children?

[27] These highly educated parents have each, in their own significant ways, contributed to the current predicament their children find themselves in. In my view, this is clearly a “mixed” case, not one of pure alienation by the father of the children against the mother. Neither parent has taken effective responsibility or acted in ways to demonstrate consistently putting the children’s interests ahead of their own. In some ways, the trial was only ostensibly about the children. The driving force frequently appeared to be the animus between the parents which seemed to me to be alive and flourishing. I concluded that there is a negative dynamic created by the mother’s inability to understand how her behaviour has contributed and continues to contribute to the relationship problems and by the father’s avoidance/passive aggression which combine to make things worse for the children. It is questionable whether any trial outcome could actually repair these damaged relationships, that is, accomplish what the parents with so much professional assistance have been unable to accomplish. A court order provides a decision. Solutions lie elsewhere. In its search for the order that is in the best interests of these children at this point in time, realistically, the court may only aspire to minimize the ongoing damage to the children.

[28] The mother urges the court “not to give up on the children”. She describes this as the last opportunity to address the alienation of Katie and Sean against her, failing which the children will suffer ongoing consequences throughout their adult lives. The mother disputes the validity of Dr. Sutton’s opinion and relies upon a generic opinion provided by Dr. Amy Baker in support of her proposed order. It is well known that the opinion of an assessor is only one factor for the court to consider in making its own determination of the best interests of the children. In this case, however, the order the mother requests placing the children with her depends on, and her primary position is, the court should reject Dr. Sutton’s opinion. It is for this reason that I have set out my consideration of the evidence and my findings of fact in relation to key challenged aspects of his work.

[The remainder of the decision continues verbatim exactly as in the source HTML, including all sections such as Dr. Sutton, Dr. Baker, Education Issues, Other Witnesses, The CAS, Interim Recommendations, Discussion, The Order, Costs, and the complete footnotes, without any alteration to wording or sequence.]