Court File and Parties

COURT FILE NO.: 10187/14 DATE: 20160923 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: L.M. Applicant – and – J.M.2 Respondent

Counsel: James Battin, for the Applicant Robert F. MacLeod, for the Respondent Susan L. Gordon, for the children, B.M., J.M.1 and D.M.

HEARD: August 25 and 26, 2016 at Woodstock

Raikes J.

[1] The parties are the biological parents of three daughters:

i. B.M. born […], 2002 (“B.M.”) ii. J.M.1 born […], 2004 (“J.M.1”) iii. D.M. born […], 2009 (“D.M.”).

[2] All three children resided with the applicant after the parties separated until the interim order of Justice Garson dated July 17, 2015. As a result of that order, B.M. and J.M.1 presently reside with the respondent father. D.M. resides with the applicant mother.

[3] Both parents seek custody of the three children.

[4] Because of time constraints, the trial before me dealt solely with custody and access. All other issues between the parties will be tried separately. I am not seized of those issues. On consent, the corollary issues are hereby severed from the divorce.

The Parties

[5] The parties began cohabiting in June 1996 and married on July 14, 2000. There is a dispute between them as to the date of final separation.

[6] The applicant mother is 38 years old. She is a graduate of the office administration program at F[…] College. In 2013-14, she was an accounts receivable clerk at Agro-Spray. She worked for Agro-Spray for 9 years.

[7] The respondent father is 40 years old. He is a welder/millwright. He is the principal of M.’s Mobile Services. He started that business in December, 2012.

[8] By order dated May 2, 2014, Justice Rady requested the involvement of the Office of the Children’s Lawyer (“OCL”). Ms. Gordon acts for the children in this matter. Mr. Robert Pittman of the OCL was appointed in June, 2015 to do a clinical assist. He met with the children five times over the 14 months preceding trial, as well as with the parents.

Marriage Breakdown

[9] In December, 2012, the respondent was laid off from his job as a millwright at TVT. That layoff was very stressful for the parties coming as it did shortly before Christmas. The respondent had previously been let go by TVT. He was approached by the company who apologized and asked him to return. That was not an easy decision but one which he made in consultation with the applicant. He worked a second time for TVT doing work on a big project, much of it out of town, for two years leading up to the layoff.

[10] Fortunately, the respondent was able to find new employment within a couple of days of the layoff. The new job paid the same hourly rate that he was paid at TVT. Nevertheless, the loss of employment was a stressor.

[11] The parties talked about the respondent starting his own welding/metal fabrication business and in December, 2012, he started up M.’s Mobile Services. For a period of time, he was working two jobs.

[12] While he was employed with TVT, the respondent was frequently away from home overnight for work. The applicant bore the lion share of the domestic and child care responsibilities in addition to working outside the home herself. After he started the new venture, this division of responsibilities continued.

[13] The applicant was initially supportive of his decision to venture into a new business. However, she soon began to express concerns about the business and how it was impacting the amount of time that the respondent spent with the family.

[14] The applicant frequently tried to contact the respondent by phone or text to find out where he was, when he would be home etc. Her calls and texts often went unanswered. When he did respond, he told her only that he was working or at his grandfather’s house in St. Thomas.

[15] Her inquiries concerning the business likewise went unanswered. She felt he was treating her more like an employee than his business partner. She suspected that he was being unfaithful and was plotting with his family to take the business and the children. She hired a private investigator and, upon receiving a report, confronted the respondent.

[16] Leading up to February-April, 2013, the parties were arguing more frequently. The respondent felt that he was doing the right thing (the business) for them as a couple and for the family. However, they were under financial pressure with the new house, three children and were watching their pennies. Their finances were not as good as they could have been.

[17] Increasingly, the arguments between them took place in front of the children. He testified that “she couldn’t let it go”. As their relationship deteriorated, the arguing became an everyday thing. On one occasion, she became so angry that she packed up her things and told him that she was moving to her mom’s home.

[18] The respondent testified that he left the matrimonial home in February, 2013 because he needed a break from the arguing. He went to his grandfather’s place and took the kids with him for one night. He wanted the applicant to calm down and stop yelling. Instead, she gave him an ultimatum to choose between the business and the family. He had been on the fence as to whether he would stay to work on their marriage, but the ultimatum was the final straw. He moved out. He began living at his sister’s home in Vittoria, Ontario.

[19] I pause at this point to observe that while the respondent indicates he moved out in February, 2013, the applicant sets the date of separation at April 19, 2013. The exact date of separation is irrelevant to the issues before me. Suffice to say that they separated in the first four months of 2013.

[20] During the initial period of separation, the children resided with the applicant. She was responsible for their day-to-day care and well-being. The respondent’s focus continued to be his employment and the new business. His visits with the children were often unannounced and impromptu. Nevertheless, his children were always delighted to see him and enjoyed their time with him. The applicant encouraged him to spend time with the children and only objected when he wanted to see the girls if she already had plans or commitments with them.

[21] Between separation and early September, 2013, the respondent saw his children regularly but not according to any schedule. His sister, J., set up a private email account so that B.M. and her father could communicate. The applicant was unaware of that arrangement until later. Similarly, arrangements were made for J. to take B.M. shopping. The applicant discovered that, in fact, J. was bringing B.M. back to her home to visit the respondent.

[22] I note that the parties agree that before they separated, the girls were happy, well-adjusted children. They appeared to enjoy a good relationship with each parent. They were concerned about the arguing between their parents as one would expect. There was little change in the children, either in behaviour or attitude, in this initial period of separation. They were hopeful that their parents would get back together.

Respondent Moves Home

[23] On August 8, 2013, the applicant started this litigation. In her Application, she sought, inter alia, custody of the children, child and spousal support as well as equalization of net family property.

[24] Following separation, the applicant paid the monthly mortgage and covered other child related expenses. She received no child support from the respondent in this period.

[25] The first return date for the application was September 13, 2013.

[26] On September 5, 2013, the respondent and applicant walked the children to school for their first day of the school year. The applicant testified that the respondent offered to move home to work on the issues in their marriage so long as she stopped all court proceedings. According to the respondent, the move home was motivated by his desire to be closer to his children. The applicant contacted her counsel to put the litigation on hold.

[27] The respondent returned to the matrimonial home. He took up residence in the basement where there was a separate bed. I accept the applicant’s evidence that the respondent made no effort and showed little interest in reconciliation after he moved back to the family home. He continued to work irregular hours. He saw the children when he got home, often after dinner and on weekends. Their relationship remained largely dysfunctional.

[28] During the period September, 2013 to March 22, 2014, the respondent contributed very little to the finances of the household. He purchased groceries and paid a few minor bills. The bulk of the financial burden fell on the applicant.

[29] On March 22, 2014, while the respondent was out of the matrimonial home at work, the applicant went to his living quarters in the basement where she found his laptop sitting on his bed. It was password protected. She went on the Internet and following the directions she found there, she hacked into his computer. She read his email and found various business records and documents that led her to believe that the business was very profitable and the respondent was cheating on her with other women.

[30] When the respondent came home on March 22, 2014, the applicant told him to get out. She felt at that point that there was no genuine willingness or commitment on his part to repair their marriage. If anything, he was scheming to get the children and keep his profitable business from her.

[31] The respondent refused to leave. The applicant called the OPP to get the respondent to leave the matrimonial home. When the OPP attended, they asked whether she had ever previously been assaulted by the applicant. She had been assaulted in the past and disclosed same to police. The respondent was arrested and removed to the police station.

Terms of Release

[32] The respondent was released on bail on March 23, 2014. The terms of his release included the following:

a. he reside at H[…] Road, St. Thomas - his grandfather M.'s home; b. he not be within 25 metres of the applicant; c. he not be within 100 meters of any place known to him to be the applicant’s residence or place of employment; d. he not attend at L[…] Ave, Tillsonburg (the matrimonial home) unless pursuant to a Family Court order; and e. he abstain from communication or contact with the applicant, directly or indirectly, except in the presence of or through legal counsel, or through a mutually agreed-upon third-party for the purpose of communication, association or contact with his children.

[33] The applicant attended the police station on March 24, 2014 to relate to police a sexual assault which she alleged took place in the matrimonial home during the time he was living in the basement.

[34] The respondent was charged by police with nine counts including a number of assaults and mischief under $5000. He was ultimately convicted of a single count of assault and mischief under $5000.

[35] The respondent’s contact with his children was very limited between the date of his release and an order by Justice Gorman dated May 15, 2014.

[36] The respondent next saw B.M. a few days after his release. He went to her school and spoke briefly to her as she was walking home. She told him that the applicant told her that they were not allowed to see or speak to their father. He quickly explained that he could not see or speak to the applicant, but could see the children. B.M. was scared to speak with him.

[37] He next saw them at lunch with his mother who had arranged to have the children in her care for part of a day. He received a call inviting him to join them. The girls were frightened that they were doing something wrong by being with their father; that their mother would find out.

[38] I find that the applicant did not wish the children to have any communication or contact with their father in the immediate aftermath of his arrest and removal from the home. She was angry with the respondent. She felt lied to and cheated upon. She wanted to establish a status quo where the children remained in her custody and care. To that end, she refused to accept any of his family as the mutual third party and she told the children that their father was not allowed to see them, which is not what the release terms provided.

[39] This misstatement to the children ultimately became a wedge between the applicant and B.M. and perhaps J.M.1. B.M. told Mr. Pittman that her mother lied to her about not being able to see her father and, as a result, she cannot trust her mother.

Orders dated May 15, 2014

[40] Soon after the appointment of the OCL, Justice Gorman issued two orders dated May 15, 2014 by which she ordered, inter alia, that:

i. The respondent pay child support to the applicant of $879 per month for the children on income of $46,177 commencing May 1, 2014 without prejudice to the live issue of retroactive child support; ii. The parties divide equally certain enumerated household expenses including the mortgage; iii. The applicant have interim interim without prejudice exclusive possession of the matrimonial home; iv. The pick up and drop off of the children occur at the school or daycare when available but otherwise at the applicant’s mother’s home; v. The respondent have access to the children on alternating weekends from 5 p.m. on Friday to 8 a.m. on Monday, and every Tuesday from 5 p.m. to 8 p.m..

[41] The access schedule ordered by Justice Gorman continued until the order of Justice Garson dated July 17, 2015.

Non-Payment of Household Expenses

[42] The respondent defaulted in payment of his share of the household expenses. On August 22, 2014, Justice Mitchell ordered that the respondent deliver a certified cheque or bank draft of $1,000 to the applicant’s counsel on account of his monthly obligations.

[43] On September 19, 2014, an order was made by Justice Bryant that was subsequently corrected by an order dated November 3, 2014. By the latter order, the respondent was ordered to pay the applicant $7,056.35 forthwith for monies owing for household expenses. The order also provided that the respondent pay $25 per day for every day he failed to pay the household expenses until the amount was paid in full.

[44] The applicant alleges that the respondent owes $28,903.28 as of August 25, 2016. That amount is disputed by the respondent and is one of the issues that will be further litigated between them.

[45] I include reference to the default as of November, 2014 and the alleged amount owing because it informs part of the applicant’s alienation assertion; viz. instead of paying the applicant his share of household expenses, the respondent took the children for dinners, on outings, and bought them things – he bought their affection and thereby poisoned their relationship with the applicant who could not afford such extravagances.

Access to July 17, 2015

[46] According to the applicant, the behaviour and attitude of B.M. and J.M.1 gradually changed for the worse after access began with their father pursuant to the order of Justice Gorman dated May 15, 2014. Before May 15, 2014, they were polite, respectful, happy children with whom she had a great relationship.

[47] The applicant testified that when the girls came home from their visits with their father, they told the applicant about going out to various restaurants or on outings with her father. She could not afford to do those things and was struggling to make ends meet.

[48] Beginning in 2014 and escalating in 2015, the applicant noticed a significant and disturbing change in her relationship with B.M. and J.M.1. They became more reserved in what they would tell her. The girls were less respectful and at times openly belligerent. She argued with them frequently.

[49] The applicant testified that:

i. B.M. and J.M.1 started calling her L.M., not mom; ii. B.M. and J.M.1 told her that she did not deserve their respect, that only the respondent’s girlfriend, A., deserved their respect; iii. both girls told her that she was not their mother and laughed at her when she told him that she would always be their mother and that they needed to respect her; iv. in the Spring of 2015, B.M. and J.M.1 became very guarded with her. They told her things were none of her business; v. B.M. indicated that she could go places without telling the applicant and could call or text without telling the applicant who she was talking to or texting; vi. on Mother’s Day in 2015, she did not see either B.M. or J.M.1. She arrived at her mother’s house soon after the respondent and J.M.1 departed; vii. J.M.1 advised her that Ms. Gordon told J.M.1 that J.M.1 should live with her dad to give her a fresh start; viii. B.M. advised her that Ms. Gordon told the girls that they would have to choose who they wanted to live with; ix. Ms. Gordon implied to the girls that they could say anything they wanted to the applicant; x. the applicant concluded from remarks made by B.M. and J.M.1 that Ms. Gordon was talking about the court proceedings with them; xi. in the lead up to the July 17, 2015 motion, B.M. became very quiet. The applicant felt that she was on pins and needles around B.M.- that B.M. was a ticking time bomb; xii. B.M. became a very angry child around the applicant because of what B.M. was hearing from the respondent about the applicant – that the applicant was evil and manipulative; xiii. she tried to speak with B.M. about her comments but B.M. refused to discuss them; xiv. on July 6, 2015, she was driving with B.M. sitting in the passenger seat. They were returning from a visit that B.M. had with the respondent. B.M. went to change the radio station and the applicant politely asked her not to do that. B.M. became angry and slapped the applicant on the face. The applicant’s only response was to tell her that that was unacceptable.

[50] The applicant attributes this change in attitude toward her and behaviour by B.M. and J.M.1 to the respondent and his family. She also blames counsel for the children, Ms. Gordon. She asserts that Ms. Gordon led the girls to believe that they did not have to tell their mother anything and would be better off living with their father.

[51] The applicant’s evidence as to the increasingly belligerent and hostile attitudes of B.M. and J.M.1 is corroborated by other witnesses including her mother and friends who have known the children for many years. Much of this corroborating evidence is more recent in time; viz. reflects observations made after B.M. and J.M.1 began residing with the respondent.

[52] The applicant contends that she did little or nothing to deserve this alarming behaviour that permeated her interactions with the older girls. D.M. remained a happy child who did not act in the same fashion as her older sisters.

[53] I pause to note at this point that the applicant’s evidence stands in stark contrast to the picture painted by B.M. and J.M.1 through Mr. Pittman, Ms. Bond and the respondent.

[54] As is customary, the children did not testify. Instead, their evidence was received through Mr. Pittman, a social worker engaged by the OCL to provide a clinical assist, and through Ms. Kayla Bond, a Child Protection Worker at the Children’s Aid Society of Haldiman- Norfolk. Both parents also testified as to things that their children related to them.

[55] Although the evidence of statements of the children constitutes hearsay, I am satisfied that the evidence provided by the parents, Mr. Pittman and Ms. Bond satisfies the requirements of necessity and reliability under the principled approach to hearsay. As such, the evidence is admissible for the truth of its content.

[56] As to necessity, the courts have long recognized that it is inappropriate and indeed harmful to children to require that they testify in custody and access trials. It puts children in an untenable position in a dispute between parents. That would certainly be the case here.

[57] With respect to reliability, both Mr. Pittman and Ms. Bond saw the children in their capacities as independent third parties fulfilling statutory responsibilities. Their duties included speaking directly with the children and accurately relating the information provided by the children. Mr. Pittman spoke with each parent to gain a fuller appreciation of the family history and dynamic. Ms. Bond spoke with the respondent and his sister, and attempted to speak with the applicant who refused to meet with her.

[58] Statements attributed to the children in the evidence of the parents is largely corroborated by other witnesses or the parties themselves. To the extent it is not corroborated, I attach less weight to it.

[59] Mr. Pittman has been employed by the OCL for the past 16 years. He has a Masters of Social Work degree and is a registered social worker. In addition to reviewing the available records and intake forms, he met with the parents to get an overview of the family situation. He then met with the children on five separate occasions between June 24, 2015 (when he was appointed) and the trial.

[60] I found Mr. Pittman to be an excellent witness. He carefully related the information known to him and provided by the children. His evidence was consistent, direct and responsive to the questions that were put to him. He took care to ensure that the children understood his role including that the information they provided would be provided in turn to the court. I did not observe anything in the approach that he took or the evidence that he gave that suggested any bias. My sense is that he “played it down the middle”.

[61] Mr. Pittman’s first interview with the children occurred shortly after the order was made by Justice Garson pursuant to which B.M. and J.M.1 resided with the respondent and D.M. remained with the applicant mother. Mr. Pittman testified that:

a. with respect to D.M., i. it was difficult to get her to focus because of her age; ii. she wanted her father to come home; iii. she missed her father and sisters; iv. she looked forward to visits with her father and wished that she could see him more; v. she had no concerns about her care at her mother’s home; and vi. the above information remained consistent in subsequent visits with him;

b. with respect to B.M. and J.M.1, i. they expressed similar wishes and concerns over the course of their meetings throughout the year; ii. they wished to reside with their father; iii. life was better after they moved to their father’s. It was less stressful; iv. they had a good relationship with their father and his family; v. they adjusted to their new school; vi. each felt that they could talk to their father about anything. B.M. talked to her father about “women’s issues” although it was awkward; vii. prior to separation of their parents, they felt caught in the conflict at home; viii. when their father left home, they were not allowed to see him. That started the deterioration of their relationship with their mother; ix. their mother blocked their efforts to see their father. She would not allow them to use a phone to call him or provide transportation to see him; x. their mother put down their father in their presence. Her comments made them feel awkward; xi. their mother painted a very negative picture of his family; xii. their mother took the phone away and denied them privileges if they talked or texted their father; xiii. the applicant interrogated them about things they did with their father when they came back from visits; xiv. they felt that they were being forced to decide between their mother and father; xv. the applicant mother was upset with them for choosing their father over her and reminded them of that frequently; xvi. they have a conflicted relationship with their mother who blamed them for things; xvii. the applicant wanted to know where they were going all the time and reviewed their texts and phone messages; xviii. the applicant threatened to call the police if they did not behave and do what they were told to; xix. the applicant favoured D.M.. Everything was B.M. and J.M.1’s fault; xx. J.M.1 was picked on more than either B.M. or D.M. by the applicant; xxi. they felt that the applicant blamed them for the family situation; xxii. there was an incident involving a scuffle between the applicant and B.M. over a phone that B.M. was using; xxiii. they had no privacy with their mother who read J.M.1’s diary; xxiv. the applicant yelled at them and frequently insulted them.

[62] To some degree it is difficult to separate the perspective of the older two girls at trial from the point in time when they were living with their mother and only had access with their father. Their feelings and the incidents that they referred to are part of a continuum going back to 2014.

[63] Clearly, a significant rift developed in the relationship between the applicant and each of B.M. and J.M.1. That rift is characterized by,

i. anger and resentment by each of B.M., J.M.1 and the applicant ii. lack of trust iii. lack of respect iv. profound difficulty communicating.

Order dated July 17, 2015

[64] On July 17, 2015, Justice Garson ordered that the respondent have interim custody of B.M. and J.M.1 effective July 20, 2015 and that the applicant have interim custody of D.M..

[65] The order further provides that:

“…at the request of the children B.M.… and J.M.1…, access by the applicant…shall be open and take place as and when requested by the children…but not less than the current access that the respondent…had with the children B.M.…and J.M.1. As well, the respondent…shall allow liberal phone, text, email, face time and other forms of electronic access the children B.M.…and J.M.1 may wish to have with the applicant…while at the residence of the respondent…”

[66] The respondent’s access to D.M. continued as it was on the understanding that the three children were to be together every weekend and access between the parties was to align accordingly.

[67] The change in residence by B.M. and J.M.1, although consistent with their preference, did nothing to improve their relationship with the applicant mother. Instead, their relationship has become more distant and more acrimonious. The applicant feels that the girls are even more brazen and disrespectful. They are uncontrollable.

[68] As I indicated above, the evidence of Mr. Pittman is that B.M. and J.M.1 feel very strongly that their relationship with their mother has worsened. They dread their visits with her. They acknowledge some responsibility for the confrontations that inevitably occur but place a large part of the blame on their mother who they feel treats them unfairly.

[69] In February, 2016, the respondent contacted the Haldiman-Norfolk CAS because of concerns that he had regarding the girls’ mental health from their access with their mother in Tillsonburg; in particular, J.M.1 appeared to be self-harming by scratching and digging her fingernails into her forearms and hand.

[70] Ms. Bond of the CAS testified at trial. By agreement between counsel, her evidence in-chief included her sworn affidavit. She testified briefly in-chief and was cross-examined. I found Ms. Bond to be a good witness. Like Mr. Pittman, she established a rapport with B.M. and J.M.1 where each child felt safe to open up. She met with them separately the first three times and together for the last meeting. She satisfied herself as to their sincerity and testified that she saw no indications that either child was being influenced by anyone.

[71] In her affidavit, Ms. Bond deposed that she met privately with B.M. and J.M.1 on February 29, March 8, April 28 and May 20, 2016.

[72] The affidavit recounts information provided by each of B.M. and J.M.1 on each visit with Ms. Bond. The picture painted is disturbing to say the least. Some of the highlights are:

i. B.M. feels that her mother lies about everything and does not trust her; ii. the applicant has a rule that they are not allowed to talk to their father while at her home and takes away the girls’ cell phones; iii. the applicant records B.M. and writes things down so that she can use it against B.M.; iv. the applicant calls B.M. and J.M.1 names such as “liars, thieves, ignorant or immature”; v. B.M. cries in her room when at her mother’s because of the things that are said to her and J.M.1; vi. B.M. has no confidence that her mother can change and be nice to her; vii. B.M. does not know who her mother is anymore; viii. B.M. feels that her mother and maternal grandparents do not like her; ix. B.M. does not want access with her mother at all; x. the applicant puts B.M. down all the time and makes her feel guilty and depressed; xi. the applicant takes belongings that B.M. paid for with her own money such as an iPad, clothes and makeup; xii. the applicant blames B.M. and J.M.1 for things being said in court xiii. on a scale of 0 to 10 with zero meaning that she does not wish to see her mother at all, B.M. is below zero – she does not want to see her mother anymore and does not want her mother in her life; xiv. both B.M. and J.M.1 cry when they come home from visits with their mother; xv. J.M.1 only wants to visit her mother so that she can see her sister D.M.; xvi. J.M.1 believes that her mother blames her for everything and is very mean to her; xvii. J.M.1 does not wish access with her mother because of how much the applicant yells; xviii. the applicant told J.M.1 that no man would want kids like her and B.M. which is why she does not date; xix. J.M.1 witnessed the applicant put B.M. in a headlock in the summer of 2015 to take away an iPad that B.M. purchased with her own money and which her mother now keeps; xx. she does not enjoy being around her mother because her mother always brings up court; xxi. she stays in her room at her mother’s house to avoid conflict; xxii. there is no positive reinforcement from the applicant; xxiii. J.M.1 believes that her mother takes out her anger about their father on J.M.1 and B.M.; and xxiv. on the same 0 to 10 scale, J.M.1 scores a zero – she does not feel safe with her mother and does not wish to see her mother.

[73] J.M.1 conceded to Ms. Bond that the scratching is related to the feelings that she has when in the company of her mother.

[74] Ms. Bond recommended that access with the applicant be changed so that the children spend less time in her care and the visits take place in public spaces where yelling is less likely to occur.

[75] The applicant denies that she is verbally abusive although she does acknowledge that she argues with her daughters. The applicant asserts that she wishes to have a loving relationship with her daughters but feels that they have been encouraged to say the things that they have and to act in the manner that they have. She asserts that it is in the children’s best interest that they live with her as they did before.

[76] For his part, the respondent denies that he or his family have disparaged the applicant to the children or have encouraged the girls to act as they have with the applicant. He has an excellent relationship with all three girls. He wants the girls to have a good relationship with their mom and is prepared to facilitate that. He believes the fault for their dysfunctional relationship rests principally with the applicant.

Orders of Justice Templeton

[77] Justice Templeton was appointed case manager with respect to custody and access issues by RSJ Heeney.

[78] On October 2, 2015, Justice Templeton ordered, inter alia, that each parent arrange and attend a separated parents course designed to teach the parents about coping with and determining the impact of separation on children. She directed that they choose a counsellor for the children to assist them with any issues regarding the breakdown of the family and impediments to an ongoing and deepening relationship with both parents.

[79] In her endorsement dated February 8, 2016, Justice Templeton observed that the parties were unable to agree on any issue and the acrimony between them was overwhelming. She indicated that “the battle has to stop, for the sake of the children”.

[80] The parents were required to provide a call log that indicated when the children spoke with the other parent while in their care. Justice Templeton noted that if the applicant’s call log was accurate, it was clear the respondent was not ensuring and requiring the girls to speak with her mother. She warned that he was at risk of having the children removed from his care as the children must have frequent and regular contact with both parents.

[81] At paragraph 7 of her endorsement, Justice Templeton wrote:

“In my view, these children are far too young and disturbed in their relationship with their mother and the conflict between their parents is far too intense to allow the children to independently choose when and where they wish to see either parent.”

[82] Justice Templeton appointed Tracey Lipp to provide counselling to the children. She directed that the children attend all counselling sessions either together or separately as required by Ms. Lipp and that they not miss any sessions except in the case of medical emergency. The parties were to take turns taking the children to and picking the children up from their counselling sessions. The parents were strictly prohibited from discussing with the children any issue with respect to the litigation and anything said or done during the counselling.

[83] The applicant complied with the counselling requirements ordered by Justice Templeton. She ensured that D.M. met with Ms. Lipp on six occasions. She also met with Ms. Lipp one on one to discuss her concerns.

[84] B.M. and J.M.1 have met with Ms. Lipp once. A second appointment was cancelled by Ms. Lipp as she was ill and yet another appointment did not happen because there was a mix-up between the respondent and Ms. Lipp on Monday of the May long weekend. He attended her office but Ms. Lipp was not there. He called her and left a message from her parking area. She understood that he was to have confirmed the appointment before then which he did not. Ms. Lipp did not attribute any lack of interest or ill intent to the respondent.

[85] It is clear to me that the respondent’s efforts to comply with the order of Justice Templeton regarding counselling have been less than fulsome. My sense is that the respondent does not fully appreciate the importance of the counselling to B.M. and J.M.1 and it is an inconvenience to him given that they now live further away in Port Dover.

[86] Neither parent has taken the counselling ordered by Justice Templeton. The applicant is on a waiting list.

Plan of Care

[87] The respondent has recently moved to a two bedroom house in Port Dover located near to the elementary school J.M.1 attends and a 10 minute bus ride from the high school that B.M. attends.

[88] B.M. has a part-time job at a nearby cheese factory. Both girls participate in sports locally. They enjoy spending time with their father. The family participates in dirt biking, sometimes travelling to do so.

[89] The respondent has a girlfriend, A., who resides in London with her son from a previous relationship. There are no plans for them to move in together. Their children get along well and enjoy each other’s company. The girls especially like spending time with A..

[90] The respondent continues to work in his welding business. He has an employee which makes it easier for him to be home in the evenings and on weekends. In the past, his sister and family have helped when he had to work late.

[91] B.M., J.M.1 and the respondent report excellent communications between them. The girls are able to talk to him about anything including boys, medical issues and other personal matters. He takes them to doctor’s appointments. He ensured that B.M. got braces.

[92] D.M. continues to thrive with the applicant. By all accounts, she enjoys her time with her father and sisters but prefers to live with her mother. She is well behaved and is doing well in school. The respondent continues to live in the matrimonial home. If B.M. and J.M.1 returned to reside with the applicant, their bedrooms are available.

Analysis

[93] The applicant seeks a divorce as part of the relief claimed. Accordingly, s.16 of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.) requires a consideration of the best interests of the children in the determination of custody and access.

[94] The considerations set out in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) have been adopted and applied to cases arising under s.16 of the Divorce Act: Allen v. Wu, 2011 ONSC 6813 at para 74.

[95] S. 24(2) of the CLRA sets out the following factors to be considered in determining the best interests of a child as follows:

“The court shall consider all the child’s needs and circumstances, including:

(a) the love, affection and emotional ties between the child and, i. each person entitled to or claiming custody of or access to the child, ii. other members of the child’s family who reside with the child, and iii. persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.”

[96] As mentioned earlier, each parent seeks custody of all three children. If the applicant is awarded custody, she proposes that B.M. and J.M.1 will have access with their father on essentially the same schedule provided for by Justice Gorman in her order dated May 15, 2014.

[97] If the respondent is awarded custody of all three children, he proposes that the applicant have access to the children on the same schedule that D.M. has been having access with him since July, 2015. The respondent feels that the three girls have a close bond and is fearful that by being separated, they may develop an unhealthy rivalry or resentment.

[98] In the alternative, the respondent asks that the court make permanent the order of Justice Garson. In that case, B.M. and J.M.1 will reside with him and his access to D.M. would be unchanged. He supports the position of the children’s lawyer for scaled-back access between the applicant and B.M. and J.M.1.

[99] Counsel for the children, Ms. Gordon, urges this Court to follow the wishes of B.M., J.M.1 and D.M.; viz. order that B.M. and J.M.1 continue to reside with their father and D.M. continue to reside with the applicant mother. With respect to access, she urges that B.M. and J.M.1’s access to their mother be scaled back temporarily and an order made for counselling. She submits that the counselling is essential to rebuild the relationship between mother and daughters and access can increase as and when that counselling bears fruit.

[100] I will deal first with the issue of alienation and then consider the factors relevant to the best interests of the child.

Alienation

[101] The applicant argues that the estrangement of her relationship with B.M. and J.M.1 rests at the respondent’s feet. He economically deprived her of needed support and payments. He lavished money and gifts on the girls to buy their preference. He encouraged them expressly or tacitly in their increasingly confrontational attitude toward the applicant. He has done nothing to encourage a positive relationship between the girls and the applicant. The best evidence of that lies in the failure to comply with the order of Justice Templeton to ensure that B.M. and J.M.1 receive counselling from Ms. Lipp. She contrasts that with the consistency of the access he enjoyed with the girls when they lived with him, the ongoing access he has enjoyed with D.M. and her commitment to counselling for D.M..

[102] While I am troubled by the failure of the respondent to ensure that B.M. and J.M.1 attend counselling with Ms. Lipp, I accept that he has made some effort in that regard and will continue to do so.

[103] Ms. Lipp did not suggest in her evidence that the respondent was not trying, and in cross-examination agreed that scheduling with the respondent was “a series of unfortunate events”. No doubt the requirement of counselling is a significant inconvenience to the respondent given how far they must travel to get to Ms. Lipp, his work obligations, and the activities that B.M. and J.M.1 are involved in. I do not regard his failure to have more counselling sessions to date as a deliberate attempt to undermine the relationship of the applicant with the children; however, his efforts are inadequate and he must give the counselling priority.

[104] The respondent testified that he wants the children to have a good relationship with their mother. He has encouraged B.M. and J.M.1 to keep trying to work on their relationship with the applicant. He has told each girl that they should respect their mother; they should not yell and scream – if necessary, bite their tongues.

[105] It strikes me that there continues to be significant animosity between the parties. The criminal proceedings only resolved in 2016. The respondent is now on probation. Those proceedings and the bitterness evident in this litigation could hardly be expected to promote mutual cooperation and support. I suspect the respondent has taken a small measure of satisfaction in the challenges present in the relationship between the applicant and the older girls.

[106] Nevertheless, I am not satisfied that the respondent or his family to his knowledge have attempted to alienate any of the children from their mother. To the contrary, it strikes me that the responsibility for the poor relations between the applicant, B.M. and J.M.1 rests in no small measure on the applicant.

[107] It is difficult to assess conflicting accounts when, as here, the evidence of the children comes through third parties and cannot be tested in the usual fashion through cross-examination. Although Mr. Pittman indicated that he believed the children were speaking from their hearts and Ms. Bond saw nothing to suggest they were being influenced, there remain two dramatically different versions of the interactions between the applicant and B.M. and J.M.1 when in her care which must be weighed.

[108] The witnesses called by the applicant confirm the insolent, aggressive behaviour of both B.M. and J.M.1 to their mother. However, those witnesses can report only what they observed in the brief periods they were present. They cannot know what preceded those encounters or the history of the relationship between the applicant and her daughters.

[109] It is apparent that before the breakdown of their marriage, the applicant was angry, resentful and mistrusting of the respondent, perhaps with good reason. She was convinced that he was unfaithful and that he was plotting with his family to take the children and his business. She hired a private investigator and hacked his computer. She called him frequently wanting to know where he was. That anger and lack of trust followed the parties’ final separation in March 2014 and infected her interactions with B.M. and J.M.1.

[110] It is telling that the applicant read her daughters’ texts and felt that she had an absolute right to do so. She took away B.M.'s IPad and her phone to prevent communication with the respondent. She resented their visits with him and the fun the girls had with their father. It is not difficult to understand how she may have felt betrayed by B.M. and J.M.1’s preference to reside with their father. Sadly, she failed to understand that communicating with and enjoying time with their father was not a repudiation of her. I do not doubt that she loves her children but unfortunately her lack of trust in the children has undermined her relationship with them.

[111] I find that the applicant

i. sought to prevent and/or restrict the respondent’s contact and communication with his children in the weeks immediately following his arrest on March 22, 2014; ii. misrepresented to her children that their father was not permitted to speak to or see them in that period, which undermined her credibility with them; iii. allowed the bitterness that she felt toward the respondent to colour what she said about the respondent and his family to her daughters; iv. attempted to prevent B.M. and J.M.1 from communicating with their father while they were residing with her and in her care after the order of Justice Gorman; v. belittled her daughters while in her care; vi. intruded on their privacy; vii. behaved in an aggressive, confrontational and at times petty manner. The best example is when she refused to allow B.M. to continue wearing a shirt that belonged to the applicant when she was leaving to go to her father’s. This resulted in B.M. leaving the house wearing a bra and winter coat with no top; viii. sought to restrict or limit her daughter’s relationship with their aunt J. or the respondent’s new girlfriend, A..

[112] I do not doubt that B.M. and J.M.1 have acted in a disrespectful, confrontational and aggressive manner toward the applicant. Such behaviour is clearly inappropriate. It is a symptom of a severely damaged relationship that I can only hope will eventually be repaired.

[113] The evidence simply does not support a finding that the respondent has alienated the applicant’s relationship with B.M. and J.M.1 in the circumstances.

Best Interests Factors

a. D.M.

[114] D.M. is six years old. She has a close loving bond with her mother. She has only lived with her mother and has expressed a preference to continue to reside with her mother even if it means that her sisters continue to live with her father. She is thriving at school and socially. Both parents acknowledge that D.M. is doing very well despite the drama when her sisters are with the applicant.

[115] If D.M. continues to reside with the applicant, she will continue to go to the same school, participate in activities and socialize with friends that are well-established. A move to the respondent’s home would be unsettling. She would have to change schools and make new friends. The respondent’s home is a two bedroom home. She would have to share a room with one of her sisters instead of having her own room as she does now. The girls have remained close despite the fact that they reside in different homes.

[116] In my view, there is no good reason to disturb the status quo as it pertains to D.M.. I will have more to say with respect to counselling below; however, I find that it is in D.M.’s best interest that she remain in the custody of the applicant with the same access to her father as is provided for in the order of Justice Garson. It is, of course, open to the parties to agree to a different schedule although, given the bitterness that has pervaded the litigation to date, that may be unlikely.

b. B.M.

[117] B.M. is 14 years old and has started high school. She has a part-time job in Port Dover nearby her father’s home where she resides. She has a close, open relationship with her father with whom she can discuss anything. There is a strong bond between B.M. and her father.

[118] B.M. is doing well in school after a period of adjustment. There was some suggestion that she was having trouble fitting in with some of the girls at the new school and, instead, was chumming with a group of boys. High school can be a difficult time even when one is not changing schools. There is nothing in the evidence to indicate to me that B.M. is not happy or safe in her father’s care. To the contrary, the evidence confirms that she is happy and prefers to be with her father.

[119] B.M. has resided with the respondent since the order of Justice Garson dated July 17, 2015. She has a close relationship with her sister, J.M.1, who also resides with the respondent. She is protective of J.M.1. Her needs, both physical and educational, are being met by the respondent.

[120] B.M.’s relationship with her mother is certainly damaged if not broken. This is evident in the feelings that she has expressed to Mr. Pittman and to Ms. Bond. There is no trust on B.M.’s part and it seems that that lack of trust is to some degree reciprocated. It is of concern that there have been occasions where B.M. and the applicant have become physical with one another.

[121] In my view, requiring B.M. to return to reside with her mother will inflame rather than remedy the dysfunction in their relationship. There are signs in what B.M. told Mr. Pittman and Ms. Bond that she wishes to have a relationship with her mother, but one which is loving, kind and supportive. I believe that the applicant wants the same kind of relationship with B.M.. I do not believe that they can get to that point on their own and such a goal would prove entirely impossible in the context of a court order requiring B.M. to live with her mother.

[122] I find that it is in B.M.’s best interest that the respondent have custody of B.M..

c. J.M.1

[123] J.M.1 is 12 years old and has resided with the respondent father since July 2015. She is very close to her sisters, perhaps more so to B.M. with whom she is closer in age and interests.

[124] J.M.1 is doing well in school and has adjusted to the move to Port Dover. She has a close bond with her father and prefers to reside with him. Like B.M., the respondent is able to provide for J.M.1’s physical and educational needs. The respondent’s plan for the two girls is reasonable and appropriate.

[125] J.M.1’s relationship with the applicant is fraught with confrontation, anger and sadness. She has engaged in minor self-harm when in the applicant’s care. She does not believe that the applicant likes her much less loves her. She indicates that the applicant picks on her as among the three girls. It matters little whether that is in fact the case because J.M.1 clearly feels it is so.

[126] In my view, an order that required J.M.1 to reside with the applicant with access to the respondent would be detrimental to J.M.1’s well-being. Like B.M., it will take time and help to repair the relationship, to rebuild the feelings of trust and safety that a child should have with his or her mother. That repair cannot be forced by throwing them together in the same house given their unfortunate history.

[127] I find that it is in J.M.1’s best interest that the respondent have custody of J.M.1.

Access for B.M. and J.M.1

[128] I agree with the submissions made by Ms. Gordon for the children that it is appropriate to scale back access between the applicant and each of B.M. and J.M.1 at least temporarily.

[129] The litigation between the parties has been bitterly fought with the children the prized pieces on the board. Neither parent deserves a gold star for putting the needs and best interests of their children first.

[130] Children should not be placed in a position where they have to choose between parents, nor should they be treated poorly because they want to spend time with and have a relationship with the other parent. These children in this case deserve better.

[131] The relationship between the applicant and B.M. and JM.1 is a vitally important one to the girls. It is a relationship that must be nurtured and encouraged by both the applicant and respondent. There are no winners and losers in the traditional sense in this kind of litigation. Ultimately, the children lose when they are unable to have a caring, loving relationship with each parent.

[132] I wish to impress upon the respondent that if he truly loves and cares for his daughters, as I believe he does, he must do all that he can to help them re-establish and rebuild their relationship with the applicant. He does not lose by doing this and his children gain immeasurably.

[133] I also wish to impress upon the applicant that regardless how her relationship with the children got to this point, it will not be repaired by recriminations or looking backward at what has already transpired. It is essential to the well-being of B.M. and J.M.1 that she work with them in a kind, respectful and trusting way to bridge the gap that lies between them. It will take time. There will be setbacks but consistency and patience will win out.

[134] With respect to the applicant’s access to B.M. and J.M.1, I order as follows:

i. the applicant, respondent, and children (all of B.M., J.M.1 and D.M.) will continue counselling with Tara Lipp for so long as Ms. Lipp believes that the counselling is appropriate; ii. the respondent shall be responsible to ensure that B.M. and J.M.1 attend the counselling sessions; iii. the applicant shall be responsible to ensure that D.M. attends the counselling sessions; iv. the applicant and respondent will each attend and participate in such counselling as Ms. Lipp may recommend; v. the applicant and respondent shall take such courses as Ms. Lipp may recommend to improve their communications and their understanding of the impact of the marriage breakdown on the children; vi. the cost of the counselling sessions will be borne equally by the parties; vii. neither party will disparage the other or permit any other person to speak negatively about the other in the presence of the children; viii. neither party will discuss the litigation or permit the children to see any documentation pertaining to the litigation; ix. both parties will take such reasonable steps as are necessary to facilitate access by the children and to promote a good relation between the children and the other parent; x. the applicant will have access to B.M. and J.M.1 according to the following schedule:

a. for B.M. - from 5 PM to 8 PM every other Tuesday, and from 10 AM to 2 PM every other Sunday commencing Tuesday, October 4, 2016 and Sunday, October 2, 2016 respectively, until Sunday, December 4, 2016

• from 5 PM to 8 PM every Tuesday commencing Tuesday, December 6, 2016, and from 10 AM to 5 PM every other Sunday commencing Sunday, December 11, 2016 until Sunday, February 5, 2017
• from 5PM to 9 PM every Tuesday commencing Tuesday, February 7, 2017, and from 11 AM on Saturday to 4 PM on Sunday on alternating weekends commencing February 11, 2017 until Sunday, April 29, 2017
• from 5 PM to 9 PM every Tuesday commencing May 2, 2017, and from 6 PM on Friday to 4 PM on Sunday on alternating weekends, commencing May 5, 2017

b. for J.M.1 – from 5 PM to 8 PM every other Wednesday, and from 10 AM to 2 PM every other Sunday commencing Wednesday, October 5, 2016 and Sunday, December 4, 2016 respectively, until Sunday, December 4, 2016

• from 5 PM to 8 PM every Wednesday commencing Wednesday, December 7, 2016, and from 10 AM to 5 PM every other Sunday commencing Sunday, December 11, 2016 until Sunday, February 5, 2017
• from 5PM to 9 PM every Wednesday commencing Wednesday, February 8, 2017, and from 11 AM on Saturday to 4 PM on Sunday on alternating weekends commencing February 11, 2017 until Sunday, April 29, 2017
• from 5 PM to 9 PM every Wednesday commencing May 3, 2017, and from 6 PM on Friday to 4 PM on Sunday on alternating weekends, commencing May 5, 2017

c. the status of custody and access may be reviewed in 12 months on motion by either party.

[135] The objective of the above schedule is to gradually increase the applicant’s access over time hopefully commensurate with progress in rebuilding the relationship between the applicant and each of B.M. and J.M.1. The schedule also contemplates one on one time which is why B.M. and J.M.1 have different weekday evenings.

[136] It is certainly hoped that B.M., J.M.1 and the applicant will want to mutually accelerate the schedule to allow greater time together. If that is the case, I would expect the respondent to cooperate and accommodate to the extent he reasonably can.

Conclusion

[137] I order as follows:

1. The applicant, L.M., shall have sole custody of the child, D.M. born […], 2009.
2. The respondent, J.M.2, shall continue to have access to the child, D.M. born […], 2009 in accordance with the order of Justice Garson dated July 17, 2015.
3. The respondent, J.M.2, shall have sole custody of the children, B.M. born […], 2002 and J.M.1 born […], 2004.
4. The applicant, L.M., shall have access to the children, B.M. born […], 2002 and J.M.1 born […], 2004 as follows:

a. for B.M. - from 5 PM to 8 PM every other Tuesday, and from 10 AM to 2 PM every other Sunday commencing Tuesday, October 4, 2016 and Sunday, October 2, 2016 respectively, until Sunday, December 4, 2016

• from 5 PM to 8 PM every Tuesday commencing Tuesday, December 6, 2016, and from 10 AM to 5 PM every other Sunday commencing Sunday, December 11, 2016 until Sunday, February 5, 2017
• from 5PM to 9 PM every Tuesday commencing Tuesday, February 7, 2017, and from 11 AM on Saturday to 4 PM on Sunday on alternating weekends commencing February 11, 2017 until Sunday, April 29, 2017
• from 5 PM to 9 PM every Tuesday commencing May 2, 2017, and from 6 PM on Friday to 4 PM on Sunday on alternating weekends, commencing May 5, 2017

b. for J.M.1 – from 5 PM to 8 PM every other Wednesday, and from 10 AM to 2 PM every other Sunday commencing Wednesday, October 5, 2016 and Sunday, December 4, 2016 respectively, until Sunday, December 4, 2016

• from 5 PM to 8 PM every Wednesday commencing Wednesday, December 7, 2016, and from 10 AM to 5 PM every other Sunday commencing Sunday, December 11, 2016 until Sunday, February 5, 2017
• from 5PM to 9 PM every Wednesday commencing Wednesday, February 8, 2017, and from 11 AM on Saturday to 4 PM on Sunday on alternating weekends commencing February 11, 2017 until Sunday, April 29, 2017
• from 5 PM to 9 PM every Wednesday commencing May 3, 2017, and from 6 PM on Friday to 4 PM on Sunday on alternating weekends, commencing May 5, 2017

5. The following terms shall form part of the custody and access order:

i) the applicant, respondent, and children (all of B.M., J.M.1 and D.M.) will continue counselling with Tara Lipp for so long as Ms. Lipp believes that the counselling is appropriate; ii) the respondent shall be responsible to ensure that B.M. and J.M.1 attend the counselling sessions; iii) the applicant shall be responsible to ensure that D.M. attends the counselling sessions; iv) the applicant and respondent will each attend and participate in such counselling as Ms. Lipp may recommend; v) the applicant and respondent shall take such courses as Ms. Lipp may recommend to improve their communications and their understanding of the impact of the marriage breakdown on the children; vi) the cost of the counselling sessions will be borne equally by the parties; vii) neither party will disparage the other or permit any other person to speak negatively about the other in the presence of the children; viii) neither party will discuss the litigation or permit the children to see any documentation pertaining to the litigation; ix) both parties will take such reasonable steps as are necessary to facilitate access by the children and to promote a good relation between the children and the other parent; x) the status of custody and access may be reviewed in 12 months on motion by either party.

6. The following shall apply to custody and access regardless of the above schedules:

i) On Mother’s day, all of the children shall be with the applicant from 9 AM to 6 PM; ii) On Father’s day, all of the children shall be with the respondent from 9 AM to 6 PM; iii) In even numbered years, all of the children shall be with the applicant on Christmas Day from 9 AM to 4 PM; iv) In odd numbered years, all of the children shall be with the respondent on Christmas Day from 9 AM to 4 PM; v) In even numbered years, all of the children shall be with the respondent on Easter Sunday and Thanksgiving from 9 AM to 4 PM; vi) In odd numbered years, all of the children shall be with the applicant on Easter Sunday and Thanksgiving from 9 AM to 4 PM; vii) On the birthday of each child, the parent who does not have that child in their care shall have access from 1 PM to 3PM; viii) The parties shall keep the other informed as to the health and education of the children; viz. notify the other of any health concerns and provide a copy of each report card; ix) Both parents shall be entitled to be present for all sporting, school and extracurricular events for the children; x) The parties will communicate and deal with one another in a civil and respectful manner.

7. The corollary relief is hereby severed from the divorce.

8. If the parties cannot agree on costs of this trial and any costs reserved to the trial judge concerning custody and access, they may make written submissions not exceeding 5 pages with 21 days of release of this decision.

“Original Signed by Justice R. Raikes” The Honourable Justice R. Raikes

Released: September 23, 2016.

L.M. v. J.M.2, 2016 ONSC 5974 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: L.M. Applicant – and – J.M.2 Respondent REASONS FOR JUDGMENT The Honourable Justice R. Raikes

Released: September 23, 2016