Court File and Parties
COURT FILE NO.: FS-17-88633-00 DATE: 2017 03 13 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
X Applicant – and – Y Respondent
Counsel: Self-represented Self-represented
HEARD: December 14, 2016
Custody and Access Review Endorsement
Trimble J.
Background
1In my Reasons for Judgment of February 6, 2016, after 11 days of trial, I found that Y had alienated A from her father, X, had begun alienating B, and C was at risk of being alienated. I ordered 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.”
2I ordered that I would review Y and her family’s access with the children within the 30 days following completion of the Family Bridges 90 day no contact period, provided reports were received with respect to the family’s progress at Family Bridges. Specifically, I ordered that Y participate in the Family Bridges program as it required her to do so.
Access Review Hearing Delays
3The Court reserved June 23, 24 and 27, 2016 to hear submissions on costs and custody/access.
4On June 23, I heard cost submissions with respect to the Application and trial.
5On June 24, I heard Y’s motion, brought June 6, asking that I substitute Y’s psychiatrist, Dr. S. Goldstein (who had been providing therapy to Y since March, 2016, but as I learned later saw Y only twice) for Ms. J. Vanbetlehem (the Family Bridges after-care worker assigned to this family worker. Y’s position was a) Dr. Goldstein was an expert in alienation and equally as able as Ms. Vanbetlehem and Family Bridges to provide after-care, and b) Ms. Vanbetlehem was in a conflict of interest and could not act as an after-care worker. Other relief was claimed which I addressed in an endorsement of June 17, 2016. X, in his response to Y’s motion, indicated that Y had not participated fully in the Family Bridges Program, as required by Family Bridges and that Ms. Vanbetlehem was not in a conflict. That motion consumed all of Friday, June 24.
6During the June 24 argument I learned that Y had not enrolled in the Family Bridges program and not permitted Dr. Goldstein to communicate with Family Bridges about Y’s therapy. I also found out that Y had not had any access with the children because of her failure to participate in the program.
7On Sunday, June 26, 2016 I advised counsel that I dismissed Y’s motion, the hearing for the 27th was cancelled, and my reasons would follow. In my June 29, 2016 reasons, I found that Y had not complied with my February 6, 2016 Judgment as she had neither enrolled in the Family Bridges Program nor followed its recommendations. I ordered that she do so and until she had done so she would continue having no access. I expected to hear from the family within 30 to 60 days about another new review hearing.
8On September 2, 2016, I released by costs decision. This prompted Y on September 17 to request another review hearing in October or November since she and X were working on a parenting plan. She concluded:
As per the court order, I am working with Family Bridges in the aftercare program and continue to do so. 7 months have now passed, 4 months more than the original plan of 3 months, for a variety of reasons. Although work continues to be conducted, this is an effort to be proactive in scheduling as history has proven this to be challenging.
9X objected as the Family Bridges program was ongoing and the hearing was premature. Y then advised that she withdrew her request.
10On October 12, 2016, I wrote to the parties as follows:
It has been 8 months and one week since I released by Judgment. I would like to hold a one hour hearing to receive an update on the status of [Y]’s and the children’s progress with Family Bridges, and to address whether there should be a resumption of access for [Y], and if so, when and under what terms. This will require Family Bridges to provide a status report. Subject to Family Bridges’ objections as to timing of the hearing, I suggest a one hour hearing, in Brampton, beginning at 9 a.m. on any day the weeks of November 14, 21, 28, December 5, or 12. If a date cannot be agreed upon, I will set a date. I assume that the hearing will take place in Brampton, although that is subject to approval by the Trial Coordinator in Brampton’s view. If the parties wish me to review any trial exhibits before the hearing, please advise me of the specific exhibit(s) well in advance of the hearing.
11I was advised by the parties that such a hearing would be premature since the Family Bridges program was ongoing. The hearing was eventually scheduled for December 14, 2016.
The Review Hearing
12At the close of business on December 13, I received notice from a trustee in bankruptcy that Y had assigned herself into bankruptcy. Her main creditor was X, because of outstanding cost orders.
13On December 14, I heard evidence from the parties through Affidavits, oral evidence from Ms. Vanbetlehem, and received Family Bridges’ updated reports. I advised the parties that I would entertain further submissions, in writing, concerning the impact of Y’s bankruptcy, provided they were made quickly.
14On December 19, I received an email from X’s counsel saying “In the days immediately following that attendance, there were factual events that the Applicant views as relevant to the Court in its ultimate decision, but also to the Applicant’s position on this attendance.”. He also wanted to make representations as to the effect of Y’s bankruptcy. He asked for a hearing, oral or in writing. On December 22, Y objected to introducing further evidence. I advised the parties (both now self-represented) that any further contact with the court would be via 14B motions or in open court on motion.
15Over the Christmas break I began working on these reasons. I received a follow up in January, 2017 from X asking for a hearing, and from Y opposing it. I advised again that if X wanted to put further information before me he could do so and set a time table for it and Y’s response. That timetable would have all submissions before me by February 24. Y said that she too wanted to introduce new evidence too. I set another timetable which pushed the submissions date out further. Eventually, Y said she would not adduce further evidence as she did not want to prolong matters further.
16I have now considered the further submissions.
The Childrens’ Progress Since August 1, 2016
17The 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. 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.
18Family Bridges’ second report (June 23, 2016) noted that when they entered the program, A, B and C were showing high levels of anxiety and their behaviours (particularly A’s) were antisocial. They made a quick adjustment and embraced the program. Family Bridges noted, however that Y’s allegations of conflict of interest resulted in a four month stalemate in which Y did not see the children. Family Bridges said that Y was attempting to secure contact with the children in contravention of my order by not participating in the program. X’s view was more pointed. He said she manufactured the conflict issue.
19The second Family Bridges report also provided, at my request, a risk assessment of permitting access to Y under the circumstances. The report conformed to Ms. Vanbetlhem’s evidence before me. Family Bridges outlined the following risks in permitting Y access before she had completed her program:
a. The children would question why they and X had to abide by the Order and Y did not; b. The children would conclude that Orders and Rules could be re-negotiated; c. If Y were allowed to resume contact not having complied with my Order, the children would be encouraged to adopt their former parentified roles, which required them to be ever mindful of and responsive to Y’s emotional needs, rather than the reverse; d. The children would not have respect for the law.
20Family Bridges identified the following risks for Y in permitting access to the children under the circumstances:
a. The children might want to avoid Y and the anxiety she causes, which would be devastating for Y; b. Y might feel excluded or distant from the children. Since she had not taken the Family Bridges program, she did not know the key concepts and strategies. She did not develop the language and vernacular that the children adopted from the program;
21Family Bridges’ third report (November 14, 2016) notes that Y moved quickly to enroll in the Family Bridges program following my Reasons of June 29, 2016. A number of monitored access visits were conducted between June 30 and November 30, 2016. At the first monitored visit, the children were delighted to see their mother. They shared with Y openly the events of their lives since February, 2016. The children were apprehensive before the first meeting. The reunion was emotional for all. The children experienced emotional regression, which was to be expected. With each subsequent visit, however, the children’s regression diminished. In discussions after the visits, the children were able to assess their mother’s and their own conduct and emotional reactions.
22Generally, the children are thriving in their new lives. They have gained confidence. C has matured and found her own voice, separate from her siblings’, and looks less to them for cues as to how to react. Her episodes of intense emotionality have reduced. B has experienced reduced anxiety such that his eye twitch abated. He is more confident, assertive and positive. He likes his role as the “brother”. A has made the greatest strides. She has a good, healthy and playful relationship with her father. She transferred schools to facilitate her extra-curricular love – competitive swimming.
23The children, however, miss their mother and want to see her. They understand that Y 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”.
24A wrote me a letter in December, 2016, on behalf of all of the children, in which she eloquently expressed their desire to see Y, while recognizing insightfully Y’s failure to comply with the Family Bridges program. She said:
Dear Justice Trimble,
It is [A]. It has been 10 months since your ruling on February 5, 2016, that I would be in sole custody of my father. My siblings and I have successfully completed the Family Bridges program, and we have worked incredibly hard throughout these past months to achieve our ultimate goal of achieving a regular visiting schedule with our mother and mending our relationship with our father. I realize that there have been complications during this process that prolonged the final result but I hope we have finally reached the end of this process My entire family has dedicated the last 10 months of our lives to this reunification. We have driven to Oakville and back for appointments, dedicated our weekends, spent days in hotels, missed school and sports for appointments and put hours and hours into preparation before monitored visits. I am speaking on behalf of my siblings as well when I ask if you could please consider giving us a chance to show you that all the hard work we have done has paid off by letting us have a visiting schedule with our mom. Jacqui and Yvonne would still check in on us regularly. My siblings and I have made huge sacrifices to be able to see our mom again, we agreed to do many things which we would not normally do in a regular household. After all this hard work I think that we should please be given a chance to show you we are ready. We have retained good problem-solving skills and we are ready to start spending time with both of our parents.
Y’s Progress Since August 1, 2016
The Evidence Presented for the Hearing
25The evidence Y proffered at this hearing comprised the Report of Dr. Goldstein June 6, 2016, and Affidavits dated June 17, 2016 from Y, her mother and her brother (all of which were before me at the hearing in June and formed the basis for my comments at para. 27 to 30 of my Reasons of June 29, 2016). She provided a further Affidavit sworn February 22, 2017 on which I will comment separately.
26Y also submitted several letters and emails to and from Family Bridges, Family Bridges related invoices, and a letter she wrote to her children on August 15, 2016. At the end of the day on December 13, 2016, I received a copy of Y’s Notice of Bankruptcy and of Impending Automatic Discharge, which indicated that earlier in the day, Y assigned herself into bankruptcy.
27X proffered Affidavits dated December 8 and 13, 2016. I also received Family Bridges’ reports dated May 5 and June 23, 2016 (both before me on June 24), November 14 and December 12, 2016. I also receive X’s Affidavit dated February 9, 2017 on which I comment later.
The Parties’ Positions
28Y’s position was simple: access should begin immediately, should be unsupervised, and should ramp up to overnight visits as quickly as is reasonably possible.
29X’s position, originally, was more detailed. He too requested that access begin as soon as is reasonable, beginning with monitored contact, and move to unmonitored contact, according to a plan filed as Exhibit 2. Family Bridges should provide the monitoring, and further assistance through the ramp up to a final access schedule. He asked that I remain seized of the matter. He proposed this for several reasons:
a. Him and the children expected that Y would be back in the children’s lives by May or June, 2016; b. He and the children underwent a “transformation” and began repairing “ruptured relationships that I was sure had been lost”. c. He and the children have worked very hard to restore the relationships in the family; d. The children worked hard and were committed to the process required to restore family relationships. They have made remarkable strides; e. Y has not participated. Family Bridges recommends that Y’s contact with the children remain monitored as she has applied little of what she reports to have learned in Family Bridges. The children, however, are left in an awkward position, yearning to see their mother and needing routine that includes their mother; f. They need a final access order that provides Y and the children see each other, but one that does not undo or threaten the gains made with Family Bridges’ assistance.
30There are also financial concerns behind Y’s request for a regular access schedule. He says:
“The transaction costs of this ongoing litigation and repeatedly returning to Court are staggering and well-beyond what I can afford. I am still over two hundred thousand dollars in debt, as a result of our custody trial, and I am still incurring unaffordable legal bills each month. Y is unrepresented and is directly driving up my legal costs with an unsustainable flurry of emails to my counsel, the Court and FAMILY BRIDGESAC. Y has already ignored three emails that I’ve sent regarding collection of the latest cost award from her June conflict of interest motion, and she has made no contribution toward the almost $32,000 [should be $320,000] she owes me. I ask for the Court’s assistance in this matter as I cannot keep this up, especially if we require the ongoing assistance of Family Bridges ACP, which we do. (X’s Affidavit Dec. 8, 2016, para. 56)
31X’s plea to stop the running of costs was made before Y made her assignment into bankruptcy.
32X’s position changed by February 9. Because of events that intervened between December 14, 2016 and February 9, 2017, he sought to terminate Y’s access altogether.
Y’s Progress and Compliance with Orders
33Y has still not complied with my order. Her participation in Family Bridges is still incomplete. It has been inconsistent and her progress negligible. Y continued to try to dictate terms to Family Bridges, and by doing so, alter or renegotiate my order, or justify her non-compliance. She has frustrated the Family Bridges’ reunification process, caused delays, and increased expense for X, all of which has prevented her from seeing the children. Why do I say this?
a. Her assertion of a conflict of interest for Vanbetlehem caused a delay of almost 4 months. So long as the conflict was alleged, Y stood in an adversarial position to Family Bridges. Family Bridges’ role vis- à -vis Y had to be suspended. Family Bridges spent an inordinate amount of time dealing with this conflict allegation. b. Immediately after my June 24, 2016 ruling, Y tried to dictate terms of the Family Bridges program. She insisted (based on information on the Family Bridges web page) that her part of Family Bridges’ program should be completed in two days. Family Bridges thought that Y would require weeks to complete the program because of the extent of the alienation and the delays incurred in Y’s beginning the program. Y relented, but only after a further 11 day delay, and much time invested by Family Bridges, which had to be paid for. c. In late August, after completing two monitored visits, Y contacted the Court requesting the custody/access review hearing, on a time line dictated by her understanding of when her Family Bridges program should be completed, and not on any input from X or Family Bridges. The contact was without their knowledge other than by copy of the email to the Court. I infer that Family Bridges spent time dealing with this issue as well. d. On August 24, 2016, Y told Family Bridges that she could not afford any further expense and took the position that Family Bridges should complete her program within the existing paid retainer. She also asked Family Bridges to refer her to publicly funded counselling services. Y’s Family Bridges program was put on hold. On September 6, Y advised that she would pay the further retainers required. It took her a long time to provide the funds. This process resulted in a further 55 days of delay, and of her not seeing her children. e. Unknown to anyone, Y discharged Dr. Goldstein after two sessions, shortly after he prepared his report for the June 24, 2016 hearing. Family Bridges discovered this fact when the after-care worker called to bring him up to date on some issues. Dr. Goldstein reported to Family Bridges that he had been dismissed but recommended that Y see Dr. Collins. Evidence indicates that Y is seeing Dr. Collins. There was no report from Dr. Collins (until Y’s February 22 Affidavit) and no evidence about what they study or discuss, how often and frequently Y sees Dr. Collins, or that Y executed the necessary consents to allow Family Bridges and Dr. Collins to coordinate their activities with Y. Family Bridges spoke to Dr. Collins shortly before the December 14 hearing. He reported that he began seeing Y in September, 2016, and has seen her for 2.5 hours over two sessions. He advised that he had not been provided with my reasons, court orders, assessment reports or Family Bridges reports. f. I requested that Family Bridges provide custody and access recommendations to assist me in my deliberations. Eventually, Family Bridges responded that it would not do so without the consent of both parties because providing recommendations as to custody and access might change their role from non-adversarial to adversarial. Unknown to me, my request commenced a flurry of activity. On November 16, shortly after noon, X’s counsel wrote to Family Bridges and asked it to make recommendations. X felt that Family Bridges’ deep understanding of the individuals involved and the family dynamic, Family Bridges was in the best position to make recommendations. Y replied at 12:48 saying that Family Bridges cannot make recommendations, pointing out a specific provision in the retainer. She also took the positon that if Family Bridges gave recommendations, it would be in a conflict of interest. Dr. Parnell of Family Bridges replied at 1:32 saying Family Bridges could not provide recommendations absent direction from the Court. Y responded at 10:27 p.m. saying that making recommendations was prohibited by the retainer agreement. She alleged, again, that Family Bridges was in a conflict of interest (notwithstanding my ruling of June 29). She threatened to contact the College of Social Work as well as the College of Psychology, “to understand their position on retainer agreements, their legality as well as the standards you need to abide by.” In my view, Y made this threat to report them to their respective disciplinary bodies in order to have Family Bridges removed from the file. It almost had this effect. On November 17 at 1:32, pm Dr. Parnell responded, saying that in light of Y’s threatened complaint and resurrecting the conflict issue Family Bridges would cease activity with the family. She explained Family Bridge’s position that it was not going to provide recommendations without consent, and attempted to resolve the situation. By November 17 at 1:51, Y accepted Family Bridge’s explanation. g. On December 1, 2016, Family Bridges advised that it was cancelling the remaining two of the three scheduled monitored visits pending a final hearing. Y accused Family Bridges of doing this because Y was questioning Family Bridge’s invoices.
Y’s Progress
34The evidence indicates that Y has changed little. In her sessions with Dr. Goldstein and Family Bridges, in her Affidavit filed in June, and in the letter she wrote to the children in August, 2016 Y acknowledges that her driving force in the past has been her anger and emotional response, and that she is ready to move beyond this. Y expresses contrition and remorse, and the desire to work hard to re-establish contact with the children.
35I accept Y’s statements of remorse and contrition as genuine. Her continuing view that her behaviour was born of emotionality and anger, which is now past her, is both troubling and incorrect. It is troubling because, in part, Y uses her emotionality and anger to justify her actions in the past and, in part, as an excuse which permits her to maintain a position that her actions are not conscious. As I said in my Reasons delivered in February and June, 2016, I do not accept this.
36Y’s view that her actions were born solely of emotionality and anger, and that she has put this behind her, is also incorrect. Y continues to believe that her alienating behaviour was situational, and has passed. This is the position she took at trial. I rejected it. Her actions since February, 2016 show that her approach to X has not changed. Many of the behaviours I identified in my original Reasons and my Costs decision persist.
37Dr. Goldstein and Family Bridges’ report that Y has read and understood material she has given. Y professes in her Affidavit filed in June, and to Dr. Goldstein, that she has read, understood and absorbed what she has read and discussed in counselling.
38Family Bridges is of the view, as am I, that Y’s understanding of what she has studied is superficial. Her conduct since February, 2016 indicates that she has not internalized the information or modified her behaviour despite Family Bridges’ and her hard work. Y continues to act emotionally and rashly. When she does not get her way or matters do not develop according to her expectation, she lashes out, causing expense for others, delay in her access, and damage to her position in this litigation. Why do I say this?
a. During the separation period (and perhaps since they were born), the children were conditioned to be highly attuned to Y’s emotional needs, and to support and meet them. The children regress to their pre-Family Bridges emotional relationship with Y when they are with her, picking up and responding to her cues. For example, on August 23, before the children arrived for the second monitored visit, Y asked to take the children to a concert a few days later, which she said was a tradition. Family Bridges said that would depend on what transpired during the visit. The children were not aware of the request for the concert outing.
At the visit, on entering the room, the children regressed emotionally, becoming teary and clingy. Y appropriately refocused them. When Family Bridges told Y and the children that the next visit would occur on September 12 (indicating to Y that the concert outing would not happen), Y gasped and sat motionless and emotionless. The children perceived Y’s reaction and, within seconds, began crying. They circled and hugged Y, trying to comfort her. They wanted to know why the next meeting was so far away. Y made no attempt to comfort the children, respond to their discomfort, or try to put matters into perspective. Family Bridges noted (p.9, Nov. 14/16 third report) that this extreme reaction was unlike anything that they had seen to date. Y’s and the children’s reactions on this occasion were the same as their reaction on February 6, when I met with the family to advise the children of my decision as it affected them.
Much work had to be done following the August 23 visit to address with the children their emotional response to their mother. Visits were put on hold until this education process was complete and the retainer issue was resolved. In this process, Family Bridges suggested that Y raise this issue with Dr. Goldstein. She did not mention that she ceased his retainer and started counselling with anyone else.
b. At the October 17, 2016 visit, the children taught Y what they had learned. The discussion was open. They spoke of the strategies that they learned to self-regulate emotional situations and to assist Y in de-escalating her fears. Y’s response was open and receptive. A, however, showed some regression by complaining (without justification) that she had no friends at her new school and disliked it – an implicit criticism of X. Y responded appropriately, trying to allay A’s concerns and put them into perspective. She said, however, that she would speak to X about it. Y’s response, however, was an implicit criticism of and lack of respect for X and reinforced A’s possible view that Y could get A what she wanted despite X’s views. Y’s response reinforced a pattern of previous behaviour in which Y is seen as the only one who can respond to A, and in which A can manipulate Y.
c. According to Family Bridges’ third report, p. 11 et seq., it appears that the delays noted above resulted from Y’s emotional response to a specific turn of events. My original Judgment of February 6, 2016 provoked the conflict of interest allegation. My June 29, 2016 order that she participate in Family Bridges’ program provoked the second delay caused by Y’s insistence that her after-care program take two days. The third delay was provoked by Family Bridges’ insistence that, in all the circumstances, the after-care program could not be completed within the existing paid retainer, and Family Bridges’ insistence that it could not.
d. Y still focusses on her needs, not the children’s. For example, at one monitored visit, the children wanted to play a game. B suggested Jenga. A and C agreed. Y prevailed with her desire to talk. The discussion centered on Y – her dress, her hair, her nails, her gym regimen. On another occasion, B reported that he received 94% on a test, the highest mark he ever received on an assignment or test. Y responded that her lowest marks were over 90%. At that visit, several times B brought up his sports accomplishments. Y responded with comments about her personal trainer. B raised an accomplishment in his cross-country skiing. Y responded that she ran 1.5 miles in 13 minutes.
e. Y holds to the view that she has done everything asked of her and that overnight visits should begin. She has little insight into her lack of progress due to her failure to internalize and apply what she has been taught.
f. Family Bridges is of the view that Y’s impulsive behaviour is fear-based, and has attempted to assist Y in understanding this. Family Bridges is of the view, however, that it will take many years for Y to address and redress this issue.
39Y continues to undermine X’s authority as a custodial parent and his role as a father. She cannot support his role as a parent in front of the children. Family Bridges opines (p. 6 et seq., third report) that Y’s behaviours in this respect are “subtle, difficult to detect and insidious” and may lead to redevelopment of alienation. Some examples of this behaviour are:
a. At one monitored meeting Y asked where X was. One of the children said he was on vacation in Vancouver. B then said it was Argentina. Y said “vacation” with incredulity, then adopted her motionless and emotionless posture, causing the children to comfort her, to raise topics of discussion to distract her, and to try to diffuse the situation.
b. In a monitored meeting B said that the family dog was created when they were not home as he was urinating in the house. Y criticized this decision. The children tried to diffuse the situation. Y raised this issue on two later visits with the children.
c. After telling the children that in the home she was renting each child has his or her own room, she was critical that some children shared a room at X’s current home. When she was told that X was going to rent a bigger home, she asked why he was not buying it. This caused the children to try to diffuse the situation by saying that it was a 10 year rental.
d. When A told Y that she had developed a vision issue for which she was going to see a neurologist, Y’s response was to ask A if X and the neurologist were “on top of it”, rather than to ask about A’s health. A’s response to Y’s negative reaction was to invite Y to shop for glasses with her.
e. Y criticised X’s decision to allow A to travel by Uber to Oakville, to allow A to travel to swim meets with her coach, and to allow B to travel to Sunnybrook by bus. Y’s response to each of these was one of alarm and critical of X. Each time the children reacted to Y’s outrage by trying to soothe her and diffuse the situation.
f. In its December 12 report, Family Bridges was concerned about Y’s “subtle encouragement to defy court orders”. At various times Y made statements to the children and gave them information which indicated, subtly, how easy it would be for them to make contact with her. Like leaving a trail of bread crumbs in front of a starving person Y was leaving a trail of information that might entice the children to breach my order. For example, when B told Y that he was doing extracurricular activities at Sunnybrook Y said “that is where Uncle Pierro works”. She has told the children that her new home is near X’s, that she works out at a specific nearby gym, and that she shops at a specific nearby grocery store. Family Bridges says, “ While such commentary would not be concerning in the course of typical family life, given the circumstances of this case and the children’s repeated expressions to their mother regarding how much they miss her, it demonstrates [Y’s] lack of understanding of the temptation it presents for them to defy Court orders .”
40This evidence is disturbing, yet familiar. It is reminiscent of pre-trial conduct in which Y subtly encouraged A to defy court orders re access, thereby achieving the result Y wanted while absolving her of the consequences of defying the orders, herself. Y continues with this subterfuge.
Y’s Effect on the Children
41Family Bridges and X report that the monitored contacts have had a measurable effect on the children. B has re-developed a facial tic that worsens before and during Y’s monitored visits. He has lost self-confidence. A is biting her nails again. All the children become anxious and agitated before the monitored visits. With A, Family Bridges hypothesized that A’s anxiety and nail biting may be related to her desire to see her mother, or might be caused by the fact that she recognizes that Y is likely causing the delays and that her mother might not be able to change.
42As the review hearing date neared, A began to have crying sessions, worrying that she might not see Y again. Family Bridges noted that A began to advance the same argument as Y namely that A had done everything required of her, and wanted to start having sleepovers with Y. In effect, A had accepted that there was a different standard of conduct for the children than Y, but that the children could change Y.
43At the same time, Family Bridges says that A is insightful. She knows that her mother will not likely change that she likely believes that things will revert to their pre-trial status eventually, and that real change is unnecessary. A understands that Y is not doing the work necessary, and expressed her view that it is unfair that Y does not do the work when the children have done it. Family Bridges also says that A shows great maturity. She could have run away, defied court orders, but chose to comply.
44Notwithstanding Y’s difficulties, Family Bridges stresses that she has much to offer the children. She is a warm, affectionate, engaged mother who loves her children. She is intelligent, structured, organized. She has a good sense of humour and is funny. She is interested in her children and seeks to share their successes and challenges. Even in the artificial setting of Family Bridges’ office, Y shows that he both entertains, and is entertained by her children, and engages in them. The children love her. When she is not stressed, Y is a highly functioning person, and a good parent. Her fear based impulsivity destabilized the children in the Family Bridges process, as well as led to long periods of no contact at a time when Family Bridges is trying to re-establish contact. There is a danger of realienation.
45The children have articulated the concern, several times, that Y may not be able to successfully complete the Family Bridges after-care program.
46Family Bridges says:
As outlined above, she continues to emotionally destabilize the children by her alarmist comments and implied criticisms of [X]’s parenting. She struggles to meet the emotional needs of her children and she subtly encourages antisocial behaviour by enticing the children to break the no-contact order prematurely. [A], summarizes her profound awareness of [Y]’s limitations best; “You can tell her, but she doesn’t like to listen to people that are telling her things she doesn’t want to hear. And you are telling her she has to do something that she doesn’t’ want to do. So she is not going to do it. But she will wants what she wants. I’m not saying it’s wrong. It is wrong. But it is just how she is.”
Family Bridges’s Advice
47Before the June and December hearings, I asked Family Bridges for its recommendations on custody and access. Family Bridges responded that it was in a non-adversarial roll and would only give recommendations if X and Y both consented. Y would not. Therefore, in response to my repeated request for assistance, Family Bridges provided 5 potential parenting/access options and the risks and advantages to each option, without evaluation or recommendation. These options are a) no access, b) limited monitored access (status quo), c) graduated unmonitored access overseen by Family Bridges, d) graduated unmonitored access with only occasional oversight by Family Bridges, and e) unmonitored access.
48Given Y’s resistance or refusal to change, any unmonitored contact carries the risk that the children will regress. It places the burden on the children of maintaining what they have learned when a stressor causes Y to react. Will the children be able to maintain their gains? The effect of regression or the children’s loss of their acquired gains will be on X’s relationship with the children. These risks increase with the extent of unmonitored access with Y. It is a risk especially with A, who was most alienated, was most aligned with Y, and has the greatest tendency to regress.
49Preventing or minimizing contact with the mother carries with it some risks. The children are deprived of the role model that Y is, and the many positive attributes she has to share, not the least of which is her love for the children. They may come to blame X for not seeing their mother, which will have a negative effect on his relationship with them.
New Evidence
50The new evidence provided was minimal. The Affidavits of X and Y contained argument and polemic, for the most part. I address only the new evidence contained in each party’s Affidavit and the evidence concerning Y’s bankruptcy and how it might affect Y’s access.
51X called Y’s bankruptcy a calculated step to frustrate Family Bridges’ involvement in the family. He said “Y strategically planned, crafted and timed her bankruptcy to have a twofold effect.” One effect, X says, was to circumnavigate my rejection of Y’s plea of impecuniosity in my February, 2016 reasons. Second, she needed to justify her non-participation in Family Bridges. She intended by her bankruptcy to gain unmonitored access to the children without complying with my order that she engage in the Family Bridges Program, and in her own alienation therapy.
52X indicated that in the summer of 2016 Y sold X her share in the family cottage for $194,500.00. The payment was made on August, 19. She, therefore, was not in the position of not being able to meet her financial obligations as they came due. Rather, after taking the money, she disposed of it in a cynical effort to say she has no assets, cannot pay Family Bridges’ or a therapist’s fees, but should not be denied access because of this.
53Second, X says that Y’s vindictive behaviour has not ceased. On December 15, 2016, Y called the W[…] First Nation (which leased the cottage lands to the couple), and refused to sign the transfer documents as X had not paid for the transfer. She said that she would sue the First Nation if it completed the transfer. This was not true. X assembled the necessary documents and provided them to the First Nation. The First Nation advised Y that it would complete the transfer and threatened to eject her if she trespassed on the First Nation’s land. X’s version of events is well documented in emails.
54At the access review hearing, X propose a plan whereby Y’s access would resume and be monitored, but within a year would be regularized to include overnight visits with Y. Given Y’s refusal to stop lying and engaging in spiteful issues with X, X says that Y’s access to the children should terminate. She has thwarted every opportunity and option which would allow her to have meaningful and healthful participation in the children’s;’ lives. She cannot put her needs before her own. She cannot and will not change her aggressive, damaging and intransigent behaviour. She resists all attempts to help her change her behaviour.
55X says that he cannot afford to continue with Family Bridges’ Program. In December, 2015, his income was $300,000, but is now $225,000. He continues to carry $125,000 in litigation related debt. He cannot collect the approximately $340,000 in costs Y still owes. He must now pay the full $3,538 in spousal support. Unfortunately, none of this financial information is supported by documentation.
56Y says that her bankruptcy was inevitable. She had raised the issue since June, 2016. She desperately tried to avoid assigning herself into bankruptcy. Family Bridges would not provide her assistance in paying their fees. Family Bridges would not provide her with publicly funded programs that she could attend. She avoided paying other debts to pay Family Bridges. Bankruptcy was inevitable.
57Y says that she did engage in counselling, first with Dr. Goldstein, and later with Dr. Collins whose fees are partially covered by Y’s employer’s extended healthcare plan. He provided a report to Family Bridges dealing with the therapy she has taken. She attached it.
58Dr. Collins’ report is dated February 2, 2017. I do not accept it. The report could have been obtained by the December 14 or June 24 hearings. She saw him on October, 6, 2016 and on 5 subsequent occasions. This is not ‘new evidence’. Second, Dr. Collins’ report, even if admissible, is not reliable. He says “it is very difficult to view her as an alienating parent”. Y does not hold the typically negative views of the other parent typical of an alienator. He accepts her view that her behaviour was situational, borne of a “highly emotional state” which caused her to engage in some “impulsive and ill-judged behaviours”. Dr. Collins was given only the Goldstein and Family Bridges reports. He was not given my February 6, 2016 Reasons, nor the Hurwitz reports
59I agree that Y’s bankruptcy was probably necessary given her financial predicament. I also agree that the financial predicament was of her own making, and was a step calculated to provide a rationale for not obeying my February 6, 2016 reasons.
60The balance of Y’s Affidavit contains argument, which reinforces my views of her lack of progress. Why do I say this?
a. Y continues to make broad statements about her financial situation, yet still has not provided a sworn financial statement. How am I to accept her statements? She received $194,000 in August, 2016. Where did that money go?
b. Y’s Affidavit indicates she does not accept my Reasons of February 6. She continues to say that she earns $25,000, not the $40,000 I imputed to her. She provides no evidence of any efforts to improve her income in the last year.
c. Y has gained no insight into her behaviour.
i. With respect to the First Nations issue in December, 15, 2016, Y blames X and the First Nation. The documents do not support her. She says that X raises this issue as an example of her ability to parent, when it is unrelated to it. Y is correct, but only to an extent. Her parenting ability is affected by her irresistible urge to attack X at every turn. The First Nations issue is another example of an area where Y invents a dispute then engages. Having caused turmoil, she says with indignation “It is implorable [sic] that I am even writing about the cottage today since it was sold in August 2016 to X. It is time to move forward and avoid adversity, especially around the cottage. I have no more words regarding the cottage other than I am pleased that X has been provided with the place he loves.”
ii. Notwithstanding her failure to abide by and learn from Family Bridges, Dr. Goldstein or Dr. Collins, Y says that “It is now time to move past the legal process and fully enable the [X/Y] family to heal.” She refers to how much work the children have done and how much they have learned. She is still fixated on her arrest.
iii. By demanding that access begin immediately and proceed as quickly as possible to unmonitored overnights, Y, having progressed little (if any) despite the fortune spent on the litigation and Family Bridges process, places on the children the burden of resisting her continued alienating behaviour. She expects others to do the work to meet her needs. This is a fact the children appear to recognize.
The Effect of Y’s Bankruptcy
61Y believes that her self-assignment into bankruptcy has absolved her of her obligation to continue to abide by Family Bridges recommendations, participate in its program as required, and continue with therapy, herself. She is incorrect.
62Section 178(1) of the Bankruptcy and Insolvency Act says, “ An order of discharge does not release the bankrupt from … c) any debt or liability arising under a judicial decision … respecting support or maintenance … for … a … child living apart from the bankrupt .” Subsection h) exempts from bankruptcy any debt or interest owed in relation to any other exception in s 178. The purpose of this exception is to give effect to the legislative policy to protect spouses and children in need of support. As Master Funduk said:
All of the exceptions in the section are based on what might be classed as an overriding social policy. In other words, they are the kinds of claims which society (through legislators) considers to be of a quality which outweighs any possible benefit to society in the bankrupt being released of those obligations.” (see Jerrard v. Peacock , para. 178….
63The word “support” in the BIA is not defined. It has been restricted from applying to a division of matrimonial property (see van Norman v. van Norman and Moore v. Moore (1988), 67 O.R. (2d) 29 (H.C.J.) . What constitutes “support” is a question of fact. Support or maintenance is that which is in the form of, intended as, or has the effect of maintenance and support or a substitute for it ( see Moore , supra at para. 29 ). It means more than the obligation to pay traditional child support. It might include a particular disposition of property intended to be the substitute for child support, but which could never be ordered under the Divorce Act (see Craig v. Craig (1989), 245 R.F.L. (3d) 341 (N.S.S.C.)).
64There is nothing in the jurisprudence that limits the support to traditional child support.
65In my view, the orders I made in my reasons of February 6, 2016 with respect to a) the necessity of Family Bridges’ services to the children (and the costs of those services) and my apportionment of those services between Y and X on a 75/25% basis, and b) the necessity that Y continue with Family Bridges and her own counsellor regarding her alienating behaviours (and the cost of those services) fall squarely within sections 178(1)(c) and (h) of the BIA , and I so declare . My orders were made for the sole purpose of support and maintenance of the children. Those orders are necessary for their emotional well-being. They are necessary to help the children restore, support and maintain healthy relationships with both parents. They are, in effect, section 7 Divorce Act extraordinary expenses related to the support of the children.
Decision and Order
66Were it not for Victoria’s letter to me, I would not restore Y’s access until she complied with my February 2016 Reasons. Y is determined to not comply even to the point of declaring bankruptcy so that she can say she cannot afford it and at the risk of not having access. I order as I do solely because of the children’s plea, through Victoria. My decision reflects a balance between acceding to their request while protecting their new-found relationship with X from Y’s inevitable, unrelenting and pernicious alienating behaviour.
67Y said in argument that her access should resume. She understands that it will have to increase gradually to expand to more time, and eventually, include overnight stays. She did not address her non-compliance with my order and the issues raised by Family Bridges, other than by saying that she was in financial distress such that she was forced to take the extreme step of declaring bankruptcy. In this respect, Y says that she can no longer afford Family Bridges or other counselling services, given her income and status as an undischarged bankrupt.
68Y’s submissions and financial position leaves the Court with a dilemma.
a. Continuing the existing order requiring Y to maintain counseling for herself and pay 75% of Family Bridges’ fees for the children’s counselling means that Y will not have access to the children. The children suffer. b. Lifting the requirement that Y continue with counselling herself and pay 75% of Family Bridges’ fees for the children’s counselling imposes on the children the burden of maintaining and applying the learning and skills that they have acquired in Family Bridges without Family Bridges being available as support. It imposes the risk of the children regressing on the children and X. It rewards Y for her continued defiance. c. Leaving Family Bridges in place and ordering X to pay all the costs is unfair to X, who has borne all the costs of this litigation except that which was paid by Y’s share of the proceeds from the sale of the home that was ordered to be paid to him.
69Access is the right of the children. Every child has the right to form and maintain a healthy, loving relationship with, and bond to each parent. Y has much to offer. The X/Y children want to see their mother, badly. Mother wants to see the children, badly. Father, for the good of the children, and for financial reasons, wished access to begin in a planned way, so that the family begins to heal, the financial bleed that has affected him ends, and access is regularized as quickly and as safely as possible, in a way that protects the children’s relationship with their father. He changed his position following Y’s conduct post December 14. That conduct, as spiteful and calculated as it was, was aimed at him, not at the children.
70Access, while the children’s right, is subject to the safety of the children and in the children’s best interests. The Halton CAS said at trial that it was concerned about the children’s psychological safety, and would keep an open file so long as Y had custody in any measure.
71I continue to be concerned about the children’s psychological safety, Y’s conduct, and Y’s lack of progress. Family Bridges points out how little Y has gained from such counselling that she has taken through Family Bridges. Her conduct is disruptive and causes delay. Her approach to Family Bridges puts Family Bridges in an adversarial role.
72Notwithstanding the work that Family Bridges and Y have done, Y has changed little. She has only an intellectual and superficial understanding of the problems the family faces and her causal role. She does not understand that that her words to and conduct in front of the children continue to denigrate X and undermine his parental role and authority in the children’s eyes. She fails to understand that she requires the children to meet her emotional needs, to reassure her fears and anxieties, rather than the converse. Her failure to change her conduct causes the children to fall back into old patterns which she fails to see and correct. In short, Y has not met the requirements of para. 18 of my February 11. 2016 Order.
73Against this, I must balance the wishes of the remaining family members and the best interests of the children.
74Y’s continued absence from the children’s lives is not in the children’s best interests. She has much to offer them. The children have done much hard work and modified their behaviour. With Family Bridges’ assistance, they have learned from each of the monitored access visits in which Y’s behaviour became an issue. Denying the children access to Y may encourage them to breach my no contact order.
75In granting Y any access with the children in the current circumstances, I also run the risk of sending negative and harmful messages to the children: among them, a) a different set of rules applies to Y than to anyone else, b) Y’s intransigence is rewarded so theirs should be too, c) Court orders do not mean what they say, and d) compliance with Court orders is optional and their terms are open to be negotiated.
Y’s Access
76In all the circumstances, and until Y complies with my February 6, 2016 order, the optimal result is to allow Y limited, unmonitored access with periodic review by Family Bridges, and a further review by the Court.
77Therefore, until further order of the Court, my Final Order of 11 February, 2016 is amended as follows:
a. Y shall have access with the three children on one weekday from after school until 8 p.m., and on one weekend day from 2 p.m., to 6 p.m. My intention is that the specific access dates should interfere minimally with the children’s extra-curricular activities and Y’s work schedule. Since I am given no evidence as to what days of the week would be optimal, if the parties cannot agree on the days of the week on which access is to occur, X, as the custodial parent, shall set them. b. Y shall pick up the children at their school(s) or X’s home, and drop them off at X’s home. c. Y’s access shall be unmonitored. d. Y’s access shall be conducted in a public place of Y’s choice such as a restaurant, park, library or theatre. It shall not be conducted in a private place such as her or anyone else’s private residence. e. Y’s access shall be conducted in the City of Toronto, unless X agrees to Y taking the children outside of Toronto. f. If any of the children have extracurricular activities scheduled during the access time, Y will ensure that the children attend their respective extra-curricular events. g. If any of the children have homework during the access time, Y will ensure that the children do their homework. h. Y’s family may participate in Y’s access time, except that Y’s family may not attend any extracurricular events other than provided for in these reasons. i. Aside from Y attending any extracurricular events the children have during her access time, Y and her family may attend any sporting or other games, recitals or performances the children have to which the public are invited. During such events, there will be no direct contact by Y and her family, and X and his family. j. Family Bridges shall conduct quarterly reviews of the children’s progress beginning May 1, 2017.
Family Bridges’ Expenses
78Y receives spousal support of $3,538/mo.
79I have found that Family Bridge’ expenses, relating in whole or in part to the children, are in the nature of child support and maintenance, that they are in effect section 7 extraordinary expenses, and that they fall within the exemption contained in s. 178(1) of the BIA .
80Responsibility for Family Bridges’ expenses of its quarterly review shall is allocated 75/25% to Y and X respectively. X shall pay Family Bridges related expenses and shall recover 75% them from Y as a reduction in spousal support of not more than $1,500 per month until Y’s obligation is satisfied. In other words, for tax purposes, X shall be deemed to pay and Y shall be deemed to receive $3,538/mo. in spousal support.
81Y also remains obliged to pay those Family Bridges related expenses listed on her December 13, 2016 “Liabilities” statement, Form 79. Subject to further evidence, it appears that these are $2,565.00 to the Oakville Centre for Family Dispute Resolution and $4,260.00 to Dr. Yvonne M Parnell.
82In order to ensure Family Bridge’s continued involvement with this family as contemplated below, I order that X pay those fees, and deduct them from spousal support payable to Y, and recover those costs as part of the $1,500 per month set off from spousal support.
83FRO is to amend its enforcement such that is it compliant with the above.
Further Access Review
84I will conduct a further access review on September 29, 2017 at 10 a.m. The following shall be done as specified:
a. If possible, I would like an updated report from Family Bridges as to the children’s status and the extent to which Y has participated in the Family Bridges process, if at all. b. By 4 p.m., September 15, 2017, each of X and Y are to provide an Affidavit as to the status of the access regime and report on how the children are doing. c. Y is to include in her report, an update from her counsellor. Dr. Collins’ report provided for this access hearing on February 22, which I did not admit into evidence, suggests that Y did not give him complete documentation. Within 21 days of the release of this report, in addition to any other documents Y may have given Dr. Collings, Y is to provide to Dr. Collins with a copy of my February 6, 2016 Reasons for Judgment, the complete section 130 Assessment reports from Mr. Hurwitz, my reasons in the conflict motion, my costs reasons, these reasons, and all Family Bridges reports and updates. The report Y files, if any, from her counsellor for the September 29, 2017 Access Review should include a complete list of all written material Y provided to the counsellor for his consideration. d. The hearing may take the whole day. If anyone wishes to adduce other evidence from anyone other than the parties, Family Bridges, or Dr. Collins, that evidence shall be adduced through an Affidavit from the person. e. Each party shall have the opportunity to cross examine any affiant at the Review hearing. That cross examination shall be limited to 30 minutes or such other time as I allow. If any party wishes to cross examine an Affiant, the party wishing to cross examine the Affiant must advise the other party and the Affiant to be cross examined of his or her intention to do so not later than 4 p.m., September 19, 2017. The party wishing to cross examine shall summons the proposed witness and pay the appropriate attendance money. If either party wishes to cross examine a representative of Family Bridges, that party shall pay the reasonable professional fees of the Family Bridges witness.
Costs
85Until such time as Y is discharged from bankruptcy, there will be no costs.
Trimble J. Released: March 13, 2017