ONTARIO

SUPERIOR COURT OF JUSTICE

A RESTRICTION ON PUBLISHING ANY INFORMATION THAT COULD DISCLOSE THE IDENTITY OF THE CHILDREN IN THIS MATTER IS IN EFFECT

NEWMARKET COURT FILE NO.: FC-08-029284-00

DATE: 20130124

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.S.

Applicant

– and –

C.N.

Respondent

A. Rosen, for the Applicant

R. Shawyer, for the Respondent

G. van Hoogenhuize, for the Office of the Children’s Lawyer

HEARD: December 3, 4, 5, 6, 7, 10, 11, 12, 13, 17, 18, 19, 20, 2012

HOWDEN J.:

Overview

[1] The applicant N.S. commenced this litigation in 2008 after the respondent C.N. took the children from their home to live with him. This action followed a series of disagreements, arguments, and incidents in February 2008 involving the parties and their older child who had become more and more defiant toward his mother. The principal relief claimed by N.S. is an order either for custody of the parties’ two children or for a transitional placement to allow for a period of re-unification counselling to occur between the applicant mother and the children, particularly their son, away from the influence of either parent. There is an uncontested claim for divorce and a narrow issue regarding child support.

[2] The primary issues revolve around custody - the degree to which the children have been alienated from their mother by the father’s conduct, or the extent to which the mother has engaged in physically and mentally abusive behaviour since A.S.N. was 7 months old that has resulted in estrangement of both children from their mother. Or was the central problem that disintegrated this marriage and smashed one child’s regard, love, and esteem for his mother a hybrid of both? To the extent that the parents’ conduct reflects on their ability to act as parents, these Reasons for Judgment will deal with that history.

[3] But most of all, the parties agree that this is a case of two children who should be enjoying their childhood, happy amid a healthy and growing relationship with both parents as they move from their pre-adolescent years towards their teens. Instead, years of high conflict tensions and crises between the parents have infected badly what should have been a time to remember well. They are not even close to that happy situation, particularly A.S.N. who refuses to see or even be near his mother. A.V.N. is having some contact with N.S. through re-unification counselling at the Willow Centre, a clinic which specializes in family and individual therapy and psychological assessments. A.S.N. is also undergoing therapy individually at the same centre without contact so far with his mother.

[4] In 1987, N.S. was a young dark-haired woman from a traditional Italian-Canadian family starting university and C.N. was an accordionist playing and studying music from his native Macedonia when they met in their first year at the University of Toronto. They married on July 10, 1994; at the time, N.S. was 28, almost 29 years of age and C.N. was 27. A.S.N., known throughout this trial as A.S.N., was born on […], 1998. A.V.N. is the younger child, born on […] 2001. Both parents have now been fully accredited teachers for between 12 and, in N.S.’s case, 16 years. N.S. teaches in an elementary school in Markham and C.N. in a high school in Newmarket.

[5] The children have been attending W.C.S. in Markham since 2005; before that, A.S.N. was attending R.H.C.S. since 2003 and transferred in 2005 to W.C.S., the same school as his sister who then was starting kindergarten. Both parents agreed at the time that they wanted their children to have a private school education and as both were raised in the Christian faith, albeit different branches, they decided on a school where values founded on Christian principles were taught. Since then, their views have parted, as they have on almost every other detail of their children’s lives; C.N. wants A.S.N. and A.V.N. to attend public schools in Pickering near his residence and N.S. prefers that they remain where they are at W.C.S., a small school closer to her residence in Scarborough. The issue of change of schools was placed before Mulligan J. of this court by motion from the father on August 30, 2012. Mulligan J. held that “this is not a case where the status quo as to the children’s school enrolment ought to be changed virtually on the eve of trial” and he dismissed the motion, leaving the issue for me as the trial judge dealing with all the evidence and all aspects of the child custody issues before me.

[6] This is a case of markedly different people with quite different parenting styles. But it goes further than that, as the psychological testing has borne out. There is a strong level of anger in both parents which has often clouded any reasonable discussion of mere differences in outlook, and deep-rooted differences in their personalities.

[7] I see the mother as a strong woman who looked on her parental role as highly structured, rules-oriented, someone who thinks in black and white terms, and at times lacks judgment when it came to day-to-day discipline of the children. But paradoxically she is also a person who would raise heaven and earth to give affection to those she truly loves like her two children.

[8] C.N. is a pleasant looking man, husky, soft-spoken and very controlled, who prides himself on his knowledge of the literal meaning of the Bible and on his ability to research for himself various subjects and understand them at least cerebrally, such as the manner of delivery of education and marking practices at W.C.S. of which he has become quite critical recently and parental alienation to the extent that impressed his most recent therapist Dr. Le Doux. However, as I told him during his testimony, his reading lacks a real experience-based understanding that is required to change patterns of behaviour such as his parents’ complete lack of contact with him at a young age when he had suffered a severe injury which he endured alone for a prolonged time. This has left him with a strong protective drive toward his own children and a strong need to avoid and not confront difficult situations. He avoids confrontation whereas N.S. is more spontaneous, does not have the same need to avoid difficult life situations. He swore off alcohol years ago after a painful family experience with an alcoholic relative. Both have at times in their lives undergone serious deprivation or disapproval at the hands of their own parents. Both sets of grandparents now support the parties' claims for custody and play an active part in their lives.

[9] We now know that, exacerbating the situation without the mother’s knowledge, there was ongoing alienating conduct by the father when he was alone with the children. He played the increasingly more active role in putting A.S.N. to bed which became a lengthy exercise and excuse for talking with A.S.N. negatively about his mother, for instance and would have long conversations by phone with him when he was away on weekend musical gigs with the Macdonian band. It was these times when he was alone with the children, when he now admits he recorded numerous conversations with one or both children from 2002 until 2007 or 2008, conversations in which he persistently undermined the children’s regard, respect, and even love for their mother. It was only after the 2008 separation that the mother came across numerous recorded conversations between father and children and realized what had been happening behind her back. These recorded conversations of the father with the children amount to over 700 over 8 years. Among other things, they evidence a strong need within himself to avoid confrontation while using an interrogative approach that let him empathize with them and them with him to the exclusion of their mother.

[10] The respondent father now admits he engaged in this conduct. However he says that he had no intent whatsoever to alienate the children from their mother. He does concede, after therapy with two psychologists over the past three years, that his behaviour had an alienating and undermining effect on the mother’s position with the children. However, he states that he did this, not with any alienating intent, but because the mother had engaged in a long chain of physically and emotionally abusive behaviour since she first slapped A.S.N. at 7 months old and that conduct, in his view, was a substantial cause of the marital crises and of the children, especially A.S.N., losing affection, though not I believe, underneath all his belligerence, his love for her.

[11] Therefore, this is a case where the court is left in a very difficult position regarding how to deal with the effects of one or both parents’ conduct on their children, a serious issue in this case, as well as the continuing rejection by A.S.N. of his mother. The court must, in facing up to this case, keep before it at all times the following factors required by the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) under which the application and cross-application have been brought:

• in making an order under this section, the court shall take into consideration only the best interests of the children of the marriage as determined by reference to the condition, means, needs and other circumstances of each child (s.16(8), Divorce Act);

• 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 (s.16(9), Divorce Act);

• 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 (s.16(10), Divorce Act);

• also in making an order, the court may take into account the wishes and preferences of the children in determining their best interests.

[12] What is in the best interests of the children is of course the central question for this court to decide. It is not for the children to make that decision, but their wishes are to be considered in that determination. The problem in circumstances of alienating behaviour against a target spouse is whose mind is truly talking, the parent’s or the child’s as Perkins J. pointed out in the case of S. (C.) v. S. (M.), 2007 6240 (ON SC), [2007] O.J. No. 787 (S.C.).

[13] Both parents say now that they want the other to have an equal relationship with the children. In acknowledging that goal, both are saying they are willing to work toward that end. In reading prior alienation and hybrid alienation/estrangement cases, that agreement appears to be unusual, if indeed it is genuine. As some evidence of genuine intent, they both signed a contract with the Willow Centre which committed the family to 4 months of therapy, a short term but a start. Both testified that they would continue to participate in the Centre’s efforts toward re-unification and individual counselling. They affirmed the following goals of treatment of the Centre, after years of bitter failure to mutually accept any solution to their issues:

(a) to restore adequate parental functioning and roles;
(b) to restore and/or facilitate contact between the mother and the children;
(c) to work with each parent and their children toward the goal of identifying and separating the children’s needs and views from each parent’s needs and views;
(d) to correct the children’s distortions and replace them with realistic perceptions to reflect the children’s actual experience with both parents;
(e) to help each parent to distinguish valid concerns from overly negative, critical and generalized views relating to the other parent;
(f) to assist to resolve parent-child conflicts.

[14] This is a therapy program intended to involve the entire family, in various combinations as the therapist directs. Both parents are to pay the hourly cost 50% each. The parties and their children all were involved in it up to the start of trial when a time-out was declared. I will have more to say later as to the importance of this effort continuing.

[15] For now, I must turn to the history and evidence in this case relating to the issue of custody.

(Full judgment continues exactly as in the source through paragraph [137] and the complete order, ending with:)

HOWDEN J.

Released: January 24, 2013