Court File and Parties

COURT FILE NO.: 36539/14 DATE: 2016 06 29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

X Applicant – and – Y Respondent

COUNSEL: Martha McCarthy and Jenna Beaton for the Applicant Brian Ludmer for the Respondent

HEARD: June 24, 2016

Trimble J.

Endorsement

[1] I scheduled June 23, 24 & 27, 2016 for this matter; June 23 to hear submissions on costs and what responsibility each party had to pay the s. 30 Assessment related fees and the fees for Family Bridges, and June 23 and 27 to conduct the 90 day post-Family Bridges Program review of access referred to in paragraph 19 of my February 11, 2016 Order and to determine what further orders need to be made with respect to Y’s and her family’s access to the children, A, B, and C.

[2] On June 23, I received the parties’ submissions on costs of the action, the s. 30 assessment related fees, and for the Family Bridges Program fees. My decision on these issues will be issued separately.

[3] On June 24, because of the circumstances described below, I heard no submissions on when or under what circumstances Y and her family might begin access with the children. Instead, I heard submissions on a motion Y brought, and X’s opposition to it.

[4] Y’s motion, brought on June 3, 2016, in writing, was for an order that I substitute Y’s psychiatrist, Dr. S. Goldstein (who had been providing therapy to Y since March, 2016) for Ms. J. Vanbetlehem (the Family Bridges Aftercare worker assigned to this family). Other relief was claimed which I addressed in an endorsement of June 17, 2016. I deferred the balance of Y’s motion to June 24. X raised a preliminary objection.

[5] I advised counsel at the close of the day on June 24, that I would advise them of the pith of my decision by mid-afternoon on Sunday, June 26, so that they would know whether to attend on June 27. On June 26, I advised counsel by email that I dismissed Y’s motion, with reasons to follow. These are those reasons.

February 5, 2016 Reasons for Judgment:

[6] After 11 days of trial, I found that X had alienated A from her father, had begun alienating B, and that C was at risk of being alienated. I ordered what Howard Hurwitz and Lourdes Geraldo described as a “last resort”; namely that X should have sole custody of the couple’s three children, Y and the maternal family should have no access to the children until further order, and the family participate in the Family Bridges Program to assist the whole family to restore healthy relationships. I ordered Y to continue counselling with the counsellor of her choice, that the counsellor provide regular updates to Family Bridges so that they could coordinate treatment approach, that Y execute consents to provide to Family Bridges any information they required concerning her, and that Y should participate in the Family Bridges Program “…in accordance with the expectations of the Family Bridges Program staff.”

[7] Other orders were made, including that there be a review of Y and her family’s access with the children within the 30 days following completion of the Family Bridges 90 no contact period, provided reports were received with respect to the family’s progress at Family Bridges.

Y’s Motion:

[8] As indicated, Y seeks an order substituting Dr. Goldstein for Ms. Vanbetlehem as Family Bridges’ Aftercare worker. Y says that Ms. Vanbetlehem provided therapy or ‘evaluative’ services to X before trial. She is in a conflict of interest and cannot act.

[9] “Conflict of interest” is defined on page 40 of the Ontario College of Social Workers and Social Service Workers Code of Ethics and Standards of Practice Handbook (2nd ed.) as amended October 1, 2010, February 13, 2011 and May 6, 2015, as:

“… a situation in which a member has a personal, financial or other professional interest or obligation which gives rise to a reasonable apprehension that the interest or obligation may influence the member in the exercise of his or her professional responsibilities. Actual influence is not required in order for a conflict of interest situation to exist. It is sufficient if there is a reasonable apprehension that there may be such influence.

One of the hallmarks of a conflict of interest situation is that a reasonable person, informed of all the circumstances, would have a reasonable apprehension (in the sense of a reasonable expectation or concern) that the interest might influence the member. The influence need not be actual, but may simply be perceived. However, a mere possibility or suspicion of influence is not sufficient to give rise to a conflict of interest. The interest must be significant enough to give rise to a ‘reasonable apprehension’ that the personal, financial or other professional interest may influence the member in the performance of his or her professional responsibilities.”

[10] Y says that I need look no further than the Code of Ethics and Standards to determine that Ms. Vanbetlehem is in a conflict of interest. Ms. Vanbetlehem provided therapeutic or “evaluative” services (the latter term was used by Y in argument) to X. Howard Hurwitz refers to Ms. Vanbetlehem as X’s “therapist” and “individual therapist” in his two reports. X refers to her as his “therapist” in an Offers to Settle.

[11] Y says that any “man on the street” would perceive that Ms. Vanbetlehem was in a conflict of interest.

[12] Further, Y says that while she may not have complied with my order to the letter, she has done so in spirit. Dr. Goldstein is a psychiatrist that even X’s lawyer admits is a well-regarded expert in alienation and reunification therapy. He has been providing Y with therapy since March, 2016. She says that Dr. Goldstein, as a recognized expert in alienation and reunification, could perform the Family Bridges Aftercare work required to be done by Y since there is ‘no magic’ in the work. Dr. Goldstein is qualified to do it.

[13] Y says she would have complied with the Order in letter and spirit by participating in the Family Bridges Program long ago. She was prevented from doing so by a) Family Bridges’ and X’s denial of Ms. Vanbetlehem’s clear and obvious conflict of interest, b) their rigid application of the Family Bridges Program, and c) their unsupported view that the only two professionals capable of providing Family Bridges services to Y were Ms. Vanbetlehem and the psychologist it named. Y’s lack of participation is not her fault. It arises from Family Bridges’ and X’s intransigence on a picayune matter.

X’s Response:

[14] X says that Y should have no right of audience on her motion. First, Y says that X has not complied with my February 11 Order. She was ordered to enroll in Family Bridges’ Aftercare program as directed by Family Bridges and has not. She executed a direction for Dr. Goldstein to provide information and reports to Family Bridges, but immediately revoked it. She was ordered to direct Dr. Goldstein to coordinate therapy with the Family Bridges Program. There has been no such cooperation. Family Bridges has heard from Dr. Goldstein only to support Y’s position on the conflict.

[15] Second, Y says that the motion cannot proceed because of delay.

[16] X says that Y has retained her own therapist, and having done so, Y (says X) says that seeing this therapist is compliance enough with my Order. X says that this is nothing more than another situation in which Y tries to control the agenda, and blame others. Consequently, Y’s motion should be dismissed and any review of access should not take place until Y has complied with the Family Bridges requirements.

[17] Finally, X says that Y has invented a conflict to attempt to avoid participating in Family Bridges’ Program. No conflict exists. X saw Ms. Vanbetlehem not for personal therapy, but for suggestions as to how he might respond to or deal with A’s behavior resulting from Y’s alienating A from X. His and Ms. Vanbetlehem’s focus was on A’s interests.

[18] X referred me to Children’s Aid Society of Durhanm v. S.(A.), 2011 ONSC 1001, in which, X submitted, Mr. Ludmer, Y’s new counsel, tried the same tactic. In that case, the father, through Mr. Ludmer, argued that an “enmeshed therapist” with a therapeutic relationship with the child, might hinder the reestablishment of access with the child’s parents.

Result:

[19] Y’s motion is dismissed. Even if Ms. Vanbetlehem has a conflict of interest, the issue is res judicata.

[20] Y must participate in the Family Bridges Program. The parties shall arrange a conference call with me to occur in approximately 30 days to advise on the status of the file, at which time further attendances will be scheduled to address access for Y and the maternal family.

The Family Bridges Program:

[21] There is no dispute as to the design and aims of the Family Bridges Program.

[22] The Family Bridges Program is a specially designed proprietary program for all members of family in which there is alienation. The Program is specifically designed to be non-litigious. It comes after the litigation is completed. Family Bridges’ goal is the same goal as the Court’s and the Family’s: giving all family members the tools to re-form healthy, loving, respectful bonds between children and both of their parents, and teaching parents that they can parent children in a parallel way with denigrating the other parent. Family Bridges refers to this as the “congruent goals”. It provides its services to the children, the favoured parent, and the rejected parent in alienation cases.

[23] Family Bridges’ process is neither judgmental nor evaluative. It is experiential and educational. It provides materials (written, oral and visual) to the client so that the client comes to understand his/her motivations, actions and the impact of those actions. The client comes to understand that memory is fallible and open to distortion. The program does not dwell on the past, but focuses on the future. The client comes to understand and recognize behaviours that are unhealthy, and has strategies to address them.

[24] The professionals providing Family Bridges programs are specially and extensively trained in the Family Bridges process, and ensure that the messages and information given to every member of the family, and the assessment of every member of the family in the program is uniform and consistent. That professional, having been involved with all members of the family, is in the best position to determine whether all parties have actively and whole-heartedly participated in the program and met the milestones required.

[25] Family Bridges has set the following milestones for Y: a. Demonstrated working knowledge of the parent-child alienation in general and with insight into their own specific alienating behaviours; b. Demonstrated compliance with Court orders; c. Acquired, willingly accepted and complied with the Parallel Parenting Model, which is designed to permit both parents to parent (while recognizing the custodial authority of one, if so ordered), in a completely disengaged way.

The Family’s Progress:

[26] The strides that the X/Y family has made are not relevant to the issues raised in Y’s motion or X’s response; neither is the long road ahead for each family member to re-form healthy, loving, respectful relations with each other. However, the X/Y family’s progress bears mentioning for context.

[27] The first Family Bridges report (May 5, 2016) details X’s, and A, B and C’s progress while in the program. A proved to be resistant to Family Bridges’ Program initially. After two days, however, A began to change her behavior toward her father. It became clear to Family Bridges that B and C were alienated more than was indicated at trial. Family Bridges says, however, that the children’s progress has been nothing short of remarkable. They have re-formed their bond with X. They have settled into their home in Toronto and are excelling at school – more so than in Oakville. They participate in their normal pre-trial extracurricular activities. They are making new friends. A graduates from elementary school on June 27.

[28] The children miss their mother and want to see her. They understand that she must participate in the Family Bridges Program but are concerned that if she does not, they will not see her. They were told that they could write to their mother at any time. They made Mother’s Day cards for Y, and each child, in his/her own way, told Y how much each missed her and wanted to see her. B called Y “Best mom in the world!” C said the same and added “We miss you so, so, so much, and can’t wait to see you soon.” and “I love you and miss you lot’s and lot’s.” A’s card it particularly touching. She says how much she misses Y, and says “I love you more than the world is round”.

[29] Dr. Goldberg’s report and Y’s affidavit (paragraphs 4 to 26) provide a window into Y’s significant improvement.

[30] Y says that under the careful expert guidance and tutelage of Dr. Goldstein, she has progressed remarkably. She has become aware of her alienating behaviours, the emotional drivers behind them, addressed them, learned how to deal with them, and is ready to begin a new, productive, loving relationship with her children which respects X and encourages a loving, mutually respectful relationship between X and the children. She accepts that she must change. She regrets her actions. “I permitted [A] to attach herself to an adult problem. I regret this now with insight and am remorseful to [A].” She looks forward to co-parenting her children, or parallel parent with X.

Analysis:

Best Interests of the Children:

[31] In all matters regarding access, including this review, I am directed by the best interests of the children. This is set out in 7 through 10 of my Reasons for Judgment. At the time of my Reasons for Judgment, it was in the best interests of the children that the Family, including Y, participate fully and unreservedly in the Family Bridges process. Therefore I ordered that Y participate in the Family Bridges process, and comply with the directions of Family Bridges. It is still in the best interests of the children that all of the X/Y family members participate in the Family Bridges Program.

Delay & Res Judicata:

[32] A party to a law suit is required to bring in one claim or proceeding any related cause of action or claim arising from the same circumstances, of which the claimant knew at the time s/he brought the claim or proceeding, or reasonably ought to have known with reasonable due diligence.

[33] One of the more recent cases on res judicata and abuse of process is Reddy v. Oshawa Flying Club, [1992] O.J. No. 1337 (Gen. Div.), which followed Toronto v. CUPE Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 38, and Maynard v. Maynard, [1951] S.C.R. 346. These cases remind us that res judicata has two facets: cause of action estoppel and issue estoppel.

[34] Cause of action estoppel applies to prevent a re-hearing of a cause of action where the legal rights and liabilities of the parties have been determined in an earlier hearing. There must be the same cause of action, the same parties, and a judicial or quasi-judicial determination of the issue. Cause of action estoppel requires the parties to exhaust all issues and claims that properly belong to the subject of the litigation: see Reddy, at paras. 7-8; Henderson v. Henderson (1843), [1843-60] All E.R. Rep. 378, 67 E.R. 313, 3 Hare 100 (Ch.D.) at p. 381 E.R.; Danylkiw v. Danylkiw, [2004] O.J. No. 4411 (C.A.), at para. 4; and Plotz v. Boehmer-Plotz, [2004] O.J. No. 587.

[35] Issue estoppel is similar. It requires that the same question (as opposed to the cause of action) has been decided, the decision on the question was final, and the parties are the same in each proceeding, or their privies: see Reddy, at para. 13; and Angle v. MNR, [1975] 2 S.C.R. 248, 47 D.L.R. (3d) 544, at p. 555.

[36] The doctrine of abuse of process is similar to res judicata, although not as restrictive. It seeks to prevent multiplicity of proceedings or the re-litigation of issues determined in earlier proceedings, or which could have been litigated in earlier proceedings, but were not. This rule is easily applied in most areas of law because the final determination of a matter is final. The parties (except in the most unusual of circumstances) cannot revisit the dispute.

[37] Res judicata and abuse of process have always had an uneasy coexistence in family law matters because of the ability to reopen family law matters where there is a material change in circumstances: see Divorce Act s. 17 generally, s. 17(4) with respect to child support variation, and 17(4.1) with respect to spousal support variation; see also Family Law Act, s. 37 generally and 37(2) and (2.1), specifically. Where there is a material change in circumstances as defined in the case law, the parties have the right to seek a reassessment of support obligations, among other things. Issue estoppel, cause of action estoppel, and abuse of process may apply. Res judicata and abuse of process will not apply where the person invoking it is guilty of some blameworthy conduct.

[38] An example of the application of res judicata in a family proceeding is Lefebvre v. Strilchuk (2007), 281 D.L.R. (4th) 539 (Ont. S.C.). In 2004, the husband brought a Motion to Change a final order made earlier in the year, on consent. He moved to amend his Motion to Change to add a claim for retroactive child support on the basis that the wife did not disclose a 1999 pay equity settlement she received while an employee of the Federal Government. The husband admitted that before the final order, he was aware in 1999 or 2000 that the wife obtained a lump sum settlement. The wife opposed the motion to amend as the issue was res judicata.

[39] Nolan J. held that res judicata and abuse of process may still apply in a family law case. In essence, Nolan J. said that where there has been no material change in circumstances res judicata applies. Where there has been a material change in circumstances, it does not. In this case, the husband knew about the pay equity settlement at the time the final order was made. There was no blameworthy conduct by the wife that prevented the issue from being considered before the final order. Res judicata applied.

[40] In this case, like that before Nolan, J., the question is one of issue estoppel. In this case, did Y know the facts that underlie the argument that Ms. Vanbetlehem was acting under a possible conflict of interest as a Family Bridges professional with the family, or when ought she to have known?

[41] By February 27, 2015, Y knew all the facts necessary to support her position that Ms. Vanbetlehem was acting in a possible conflict of interest. Further, she ought to have known by October, 2014 that Ms. Vanbetlehem might be in a conflict. Why do I say this?

[42] Y does not state, clearly, when she first became aware that Ms Vanbetlehem was X’s therapist, and when she first discovered Ms. Vanbetlehem was to be a Family Bridges professional involved with the family. The inference from paragraph 27 of Y’s affidavit is that she learned of Ms. Vanbetlehem’s involvement in the Family Bridges Program after reading my Reasons for Judgment. She says that she “… reached out to Family Bridges to enquire about my role in the after-care program. I learned of Ms. Vanbetlehem’s involvement, which initiated the conflict of interest concern.” In argument, too, Y did not say when she found out about Ms. Vanbetlehem’s role as one of the family’s Family Bridges workers.

[43] What does the evidence show?

[44] The evidence at trial was that Y knew that Ms. Vanbetlehem was X’s “therapist” in September, 2014. In his September 23, 2014 report, Howard Hurwitz identified Ms. Vanbetlehem as “Therapist for [X]” or as his “therapist” at least five times.

[45] With reasonable diligence within a few months of September 23, 2014, Y should also have known that Ms. Vanbetlehem was to be one of the Family Bridges Aftercare workers. Hurwitz recommended imposing the Family Bridges program under Phase 2 of his report, if the milder Phase 1 he recommended did not work. Y was on notice of Family Bridges at that time. There is no evidence whether Y contacted Family Bridges to “enquire about my role” in the Family Bridges Program. Had she made the contact with Family Bridges in 2014 that she made in early 2016, she would have discovered that Ms. Vanbetlehem was to be a Family Bridges professional involved with the family.

[46] By February 27, 2015, it is beyond doubt that Y knew that Ms. Vanbetlehem was X’s “therapist”, and that she knew that Ms. Vanbetlehem would be co leading the Family Bridges Program. She knew the former from Hurwitz 2014 report. She knew the latter from paragraph 139 of X’s February 27, 2015 affidavit filed on his motion to impose Phase 2. She also knew that following the failed therapeutic weekend in February 2015, X insisted on the immediate implementation of Hurwitz’s Phase 2 – the implementation of the Family Bridges Program.

[47] During all of this time, Y was represented. There is no evidence that Y made any inquiries of Family Bridges to determine what the Program entailed.

[48] Regardless of the date I select for when Y knew or ought to have known about Ms. Vanbetlehem’s conflict, it is clear that she actually knew before the trial. At trial, Y objected only to the imposition of the Family Bridges Program. She never raised Ms. Vanbetlehem’s alleged conflict of interest. It is too late to do so now.

[49] I dismiss Y’s motion. Notwithstanding that my decision on res judicata is sufficient to dismiss Y’s motion, I turn to the issue of conflict of interest because it was argued so strenuously.

Conflict of Interest:

[50] As indicated earlier, Y says that Ms. Vanbetlehem is in a conflict of interest.

[51] In a family case, it is the court’s duty to ensure the continued best interests of the children by monitoring, at the appropriate times, the discharge by therapists of their duties in order to ensure the independence of the therapist from inappropriate pressures from any parties (see C.A.S. Durham, supra, para. 47).

[52] Y provided me with no case law dealing with the issue of conflict of interest of a therapist. Y says that I need look no further that the page 40 of the Ontario College of Social Workers and Social Service Workers Code of Ethics and Standards of Practice Handbook. She says that after reading the College’s definition of conflict of interest, any ‘reasonable man on the street’ would conclude that Ms. Vanbetlehem was in a conflict of interest. She had been X’s “therapist” up to trial, and provided him with what she called ‘evaluative’ services. Therefore, to provide evaluative services to Y in the Family Bridges Program put her in a conflict. She cannot perform a ‘dual role’. Y suggested that I apply the test enunciated in White Burgess Langille Inman v. Abbott and Haliburton Co. Ltd. et al, [2015] SCR 182 in determining whether there is a conflict.

[53] X says that there is no conflict. Ms. Vanbetlehem provided counselling to X on how to react to and deal with A’s alienated behaviours. She provided no therapeutic services to him. Family Bridges provides no therapeutic services, either. Therefore, there can be no conflict of interest. X referred me to the analysis of the Supreme Court of Canada’s analysis of avoiding conflicts of interest in Wallace v. Canadian Pacific Railway, 2013 SCC 39.

[54] White Burgess addresses the standard of impartiality the Court requires of experts who are called to give evidence, before their evidence is admissible. It addresses conflicts only tangentially. In its essence, the Supreme Court says that expert witnesses must give fair, objective, impartial evidence that reflects the expert’s professional judgment, independent of any influence by the party who retained the expert. The expert may not favour either party. The key question is whether the expert’s opinion would remain the same regardless of who retained him/her (see para. 33). This is not directly applicable to the question I have to decide.

[55] Key to White Burgess’ analysis is that the expert, paid by one party, is providing opinion evidence to the Court in an adversarial process. The situation in this case is different than that of an expert retained by a party to give evidence at a trial. Ms. Vanbetlehem is providing services under a Court Order, based on the recommendations of a section 30 assessor. That assessor is an expert to the Court, not for any party, and Family Bridges’ (and its workers’) duty is to the court to address the best interests of the child. She provided certain services to one of the parties before the trial and is now to be providing similar services to the whole family.

[56] Even if I accept Y’s position that all I need to do is look at the College’s definition of conflict of interest to determine that there is a conflict, I do not think that there is. Y, in saying that any reasonable person on the street would think that there is a conflict, misstates the test. The test in the Code is whether a reasonable person, informed of all of the circumstances, expect that the social work’s other interest might influence the member in the execution of his or her professional duties for the client. The influence need not be actual, but mere suspicion is not enough. It must be a reasonable concern.

[57] There is at least one case addressing conflict of interest in social workers, a case argued by Mr. Ludmer (Y’s counsel), himself: C.A.S. Dufferin. In that case, Scott, J. defines the court’s position on conflict of interest for a therapist is more narrowly the Code. A court will not remove a therapist merely because of an alleged potential or appearance of a conflict, or because a party theorizes that a therapist might encounter competing interests or values in discharging his or her obligations. There must be credible evidence that the therapist has actually demonstrated partiality for one party over the other. That one parent paid for the therapist for a child is not sufficient. Some actual behaviour must be identified for a court to weigh in on whether the professional has exceeded his or her role, breached some ethical duty, provided inappropriate advice to the child or has expressed an opinion that might not be in the child’s best interest (see C.A.S. Dufferin, para. 48).

[58] What are the facts in this case? As indicated above, Family Bridges program is not evaluative. It provides materials to all the family members, educates them, and allows them to come to their own conclusion about their motivations and behaviours and how to change them. Ms. Vanbetlehem said that she was never in a therapeutic relationship with X. Her services to X were not “evaluative”. She provided recommendations and advice to X with respect to how he should deal with A’s alienated behaviour. With Family Bridges, she was providing similar advice to the whole family. Her goal in both relationships was the best interests of the children.

[59] Ms Vanbetlehem was not shaken on cross examination. That Mr. Hurwitz referred to Ms. Vanbetlehem as X’s “therapist” does not make her one. She said that she corrected Hurwitz on this issue after the first report was issued, which was reflected in Hurwitz’s supplementary report.

[60] In these circumstances I also find Wallace of assistance as a framework to determine whether Ms. Vanbetlehem was in a conflict of interest as her situation is analogous to that of a lawyer or firm who acts concurrently for clients in a piece of business (although the analogy is not complete).

[61] In Wallace, a large law firm, while acting for CP in three matters (personal injury, real estate purchase and receivership matter with CP as creditor) was retained by a plaintiff in a class action against CP. The firm did not tell CP it intended to act or would act for the class action plaintiff. It terminated two of its retainers with CP. CP’s first inkling that the firm was acting for the class action was when it was served with the Statement of Claim. None of the firm’s retainers with CP were related to any of the others. CP moved for an order discharging the law firm as lawyers for the plaintiff in the class action as it was in a conflict of interest.

[62] In R. v. Neil, 2002 SCC 70, the Supreme Court held that there was a “bright line” rule that a lawyer and firm could not act concurrently for clients adverse in interest without obtaining the clients’ consent, regardless of whether the retainer matters were unrelated.

[63] The Supreme Court in Wallace said that the Court is concerned with the regulation of lawyers that appear before it, as they are officers of the court, because the Court is concerned with protecting clients from prejudice and to preserve the administration of justice. At paragraphs 31 to 40, the Court determined the limits of the bright line rule. The limitations stated are as follows: a. The Rule applies only if the immediate interests of the clients are directly adverse in the matters on which the lawyer is acting. b. The Rule applies only if the clients are adverse in legal interest (i.e. not strategic interest). c. The Rule does not apply where a party seeks to abuse it (i.e. it is being used in a manner that is tactical rather than principled).

[64] In this case, the second part of the test should be revised to delete the word “legal”. The interest over which there must be adversity is with respect to the goals that Ms. Vanbetlehem was to pursue.

[65] In this case, under the Wallace test, there is no adversity in interest, and hence no conflict. The adversarial relationship with respect to custody ended with the trial. The only interest that any party should have following release of my Reasons is giving effect to the order as restoring the healthy, loving, respectful relationships between the children and both parents is the interest of all members of the family.

[66] Family Bridges interest and Ms. Vanbetlehem’s interests are identical to that of the family members.

[67] X urges me to find that Y’s raising the conflict on the bright line rule is tactical, meant to be a collateral attack on my order. In order to make that determination, I would have to find that X did not believe that there was a conflict of interest, but raised it only as a tactic. While that inference is open to me, I do not need to make that finding. I think that Y believes in the conflict. I do not find that belief reasonable. The best that can be said is that Y is grasping at straws so that she can justify her non-participation in the Family Bridges Program, and her non-compliance with my order.

[68] Y, Mr. Ludmer’s client in this case, was no more successful in removing Ms. Vanbetlehem for conflict than his client was on a similar argument in C.A.S. Dufferin. Scott, J.’s reasons at para. 48 and 49 apply here, with modifications. Y failed to establish credible evidence of actual behaviour that showed the alleged conflict. While Y has the suspicion of a conflict, there is no evidentiary basis for it.

[69] Y must comply with my order. Counsel may arrange a time to address Y’s and her family’s access in another month, provided Family Bridges’ reports are available.

A’s Graduation:

[70] Just before the close of court, Y asked for leave to attend A’s graduation ceremony on June 27. Since there was no notice of this request before it was made, and no evidence filed in respect of it, I declined to grant leave. Y must have known about the date for the ceremony for months. I had nothing that reassured me that Y would not use the event to contact the children. According to the Family Bridges first report, Y had tried to send notes to one or more of the children during the blackout period.

[71] Further, according to the Family Bridges second (June 23, 2016) report, it would be unwise for the court to allow access to Y. Doing so, since she has not participated in the Family Bridges Program as directed, would send the message to the children that the court allows breaches of its orders without consequences, and that there is one standard for Y’s conduct and another for the remaining members of the family. I agree.

[72] I will address costs of this motion in my reasons for costs issued separately.

Trimble J. Released: June 29, 2016