CITATION: M.M.B. (V.) v. C.M.V., 2017 ONSC 3991
BARRIE COURT FILE NO.: FC-12-1007-01
DATE: 2017-06-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.M.B. (V.) Applicant
– and –
C.M.V. Respondent
COUNSEL:
Fay McFarlane, for the Applicant
Lynn Burgess, for the Respondent
HEARD: May 16, 17, 18, 19, 23, 24, 25, 26, 29, 30, 31 and June 1, 2 and 5, 2017
REASONS FOR JUDGMENT
R.T. Bennett
Note 1: Throughout this decision are various passages set out “in bold”. These have been bolded to add emphasis. It is noted here rather than “emphasis added” each time.
Note 2: This court has chosen not to disclose identifying features of the case, especially names (where appropriate) because of the nature of some of the evidence heard and the court finds it will be in the best interests of the children to do so. Therefore, the applicant, M.M.B.(V.), will be referred to as either “applicant” or “mother” or “M.B.” or “M.V.”, and the respondent, C.M.V., will be referred to as either “respondent” or “father” or “C.V.”. The children will be referred to as “Jane”, “James” and “John”, none of which are their real names.
BACKGROUND AND SYNOPSIS
[1] This is a motion to change by the applicant mother seeking to change a 2013 consent order with respect to the custody and residence of three children who are now ten, almost twelve, and fourteen years of age. She further seeks to change the 2014 consent order dealing with child support which flows from the earlier order.
[2] The current order provides for parallel parenting and roughly equal amounts of time with each party.
[3] The applicant alleges that due to parental alienation that order should be varied to provide her sole custody of the three children to her, that any access with the respondent father would be suspended for at least three months, and the children and the respondent should engage in therapy. In addition, she seeks continued police enforcement, child support in accordance with the Child Support Guidelines, ongoing financial disclosure and costs.
[4] In response to the motion to change, the respondent brings his own motion to change pursuant to which he was seeking to have the temporary residential custody with respect to the fourteen year old solely with him, and to provide that the applicant’s time with the younger two children be limited. Essentially his position was that Jane is old enough to decide where they want to live and how much time they want to spend with their mother.
[5] In his opening submissions the respondent provided a draft order that would vary the consent order of Corkery J. to provide:
(a) continued joint custody;
(b) primary residence of all three children with him;
(c) alternate weekends with the applicant;
(d) a rescinding of the order for police enforcement;
(e) no table child support;
(f) an equal sharing of section 7 expenses.
[6] From a practical standpoint this court finds that if it were to have granted the order requested by the respondent, it effectively would have resulted in the children living with the respondent and in all likelihood not visiting at all with the applicant, except perhaps sporadically.
[7] The applicant mother is 44 years of age, the respondent father 46 years of age. The parties began cohabiting in September 1998. They were married July 29, 2000 and separated September 10, 2011. As mentioned, the three children are now ten, almost twelve and fourteen years of age.
[8] As will be identified in great detail in this decision, to say that this has been a high conflict separation is a gross understatement.
[9] Prior to the 2013 order, and based on a consent order the parties jointly retained Howard Hurwitz to conduct a section 30 custody access assessment. Much will be said about Mr. Hurwitz and that assessment in this decision.
[10] As a result of the high conflict between the parties, there has been the Children’s Aid Society (“the Society”) investigations, police involvement, the custody access assessment earlier referred to, a parenting coordinator involved, more than 15 court orders and endorsements, in excess of 30 police occurrence involvements, virtually constant Society involvement from shortly after the date of separation until trial, some attempts at therapeutic intervention with the parties individually and following that with each party and the children, as well multiple interviews with the children to author a Voice of the Child report.
[11] Although the court does not have the entire “picture” the information available to this court is that somewhere in the range of $400,000 was spent by the parties on legal fees and the assessment between the date of separation and late 2013 when, virtually on the eve of the scheduled trial, minutes of settlement were signed and the consent order was reached.
[12] For obvious reasons, the court has not heard evidence as to the amount of money spent by the parties since that time but the applicant mother did indicate that the amount of money spent could possibly result in her having to claim bankruptcy.
[13] In addition, of course, to the monies spent by the parties, there has been an incredible expenditure of community resources in an attempt to address the conflict this family faces.
[14] The financial cost is just one aspect of the damage done to this family.
[15] The emotional cost to the parties, and in particular to the children, is something that cannot be quantified.
[16] This court heard fourteen days of trial.
[17] This court, at the risk of being accused of being delusional or blinded by eternal optimism, has crafted a decision pursuant to which the court is optimistic that the respondent father’s mentality can be changed from one of “war” as it has been described until now, to one in which the objective is changed from “winning” and “destroying” the other parent to one in which the objective is to have an environment pursuant to which the children can be free to love both parents and can freely move back and forth between them willingly, happily and without the need for the intervention of any of the resources earlier referred to.
[18] This court is not naïve and does not expect that that will occur overnight but on the other hand, this court believes that if it did not try to create that situation it would have let these children down and simply “given up” on them. This court is not prepared to do that.
[19] At the conclusion of evidence, this court took the unusual step of meeting with the children. The purpose of that meeting was not to hear their views and preferences. Ample evidence had already been given with respect to the same. The purpose of that meeting was to let the children know that this court viewed them as the most important element in this decision and that this court would do whatever it could to ensure that their best interests were championed. This court wanted them to know that it was interested in meeting the people on whom this dispute was centred. The court further hoped that by having met the children, it would have some credibility with the children when delivering its decision.
[20] This court will meet with these children again immediately following the rendering of this decision to the parties. The court intends, to communicate to the children at a level that hopefully they can understand, that this court has crafted a decision that it believes is one that could result in a 180° change being made in their lives from one of adversarial conflict between their parents, the extended families, and unfortunately the children themselves and their mother, to one in which they are allowed once again to “be children” and not have to constantly be concerned about the conflict between their parents.
[21] As will be seen in this judgment, this court has found that the respondent father has engaged in a “war” as two witnesses have indicated he characterized it at the beginning. The respondent of course denies that he said this but his actions speak far louder than any words that he could have uttered.
[22] The respondent is an acting District Fire Chief and therefore the court has found it appropriate to use a word picture involving a ladder, being a piece of equipment associated with firefighting.
[23] This court finds that the respondent has climbed a ladder and reached the top almost realizing his perceived goal. That goal was to have control over the children and to be in a situation where the mother of those children, being a mother whom he chose for them, was totally marginalized. He almost achieved that goal in that the children at their current ages have each expressed that they do not wish at the current time to have any meaningful relationship with their mother, nor to spend time with her on a regular basis.
[24] This court hopes that the respondent father will see, as this court sees so clearly, that the wall that his ladder should have been against, and the wall that hopefully he will climb after he climbs down from this current ladder is one in which at the top of the wall is a situation whereby the children have a healthy relationship with both parents and can freely love each of them without feeling any guilt towards the other. Love is not a finite quantity pursuant to which if you give love to one of your parents you must take it away from the other. In fact, the children can also love the respondent father’s girlfriend as a “stepmother” without having to feel that by doing so they need to thereby not love their biological mother.
[25] This court would be remiss if, in its summary of this case, it did not comment on the applicant mother. This court finds, as with any parent, the applicant mother is far from perfect. In fact, some of her actions, likely taken out of fear of losing her children, exacerbated the situation. This court finds that her parenting style is far more structured than that of the respondent father which “played into” his desire to alienate the children from their mother.
[26] Having said that, the applicant mother has been subjected to not only emotionally abusive treatment from the respondent father and those under his “control” but emotionally and even physically abusive behaviour from the children. The court does not “blame” the children as, there is an obvious reason why they are behaving in the manner in which they are behaving.
[27] Many, and in fact probably most, mothers even those who deeply love their children would have “thrown in the towel” by now, but the applicant mother did not. That, this court finds, is not only to her credit but will be something that this court anticipates in years to come will be greatly appreciated by her children.
[28] In many cases, there is one, usually relatively innocuous event that, to a trier of fact and a neutral third party is symbolic of the entire picture that a court needs to see in order to determine its decision.
[29] In this case that one event was a Taylor Swift concert. The applicant had, as a birthday gift to her daughter, typically bought concert tickets so they could go and enjoy the concert together. For her daughter’s twelfth birthday, the applicant bought Taylor Swift concert tickets. She, her daughter, her daughter’s friend and her mother were to go to the concert and enjoy it together. The daughter was extremely excited by the prospect. That was in June. The concert was in the fall on a time that the daughter was scheduled to be with the respondent father. In uncontradicted evidence, the father not only precluded the daughter from going with her mother but he “one upped” that reaction. He bought floor level tickets and either he or his designate took the daughter to the concert.
[30] If this court had any doubt, based on all of the other evidence that this was a case of severe alienation by the respondent father, that one act removed all doubt.
CONSENT ORDER OF JUSTICE CORKERY NOVEMBER 15, 2013
[31] This trial is with respect to the issue of the applicant claiming that there has been a material change. She has brought a Motion to Change to change the order of Justice Corkery dated November 15, 2013.
[32] That order is found at Tab 2 of the Trial Record and was based on final minutes of settlement.
[33] While there are some differences, the order is essentially an incorporation of the recommendations made by Howard Hurwitz in his custody access assessment and the parenting plan that was attached thereto.
[34] The order is 83 paragraphs and 9 pages in length. It essentially provides for parallel parenting by the parents with the applicant having “final say” with respect to medical issues and the respondent having “final say” with respect to educational issues.
[35] The order provided that Doug Manning was to serve as a parenting coordinator. The order provided for a shared parenting arrangement which coincided with the respondent’s work schedule and resulted in a 3-4-7 structure with a provision for a midweek visit from 4:30 p.m. to 7:30 p.m. during the seven day stretch.
[36] In addition, there were detailed provisions with respect to holidays, Mother’s Day, Father’s Day, and Christmas and summer vacations.
[37] The order had, what the court will characterize, as somewhat typical provisions, relating to travel consent which required the provision of an itinerary prior to the non-travelling parent providing consent.
[38] There was a provision relating to telephone calls initiated by the parties once daily between 7:00 p.m. and 7:30 p.m. not to exceed 15 minutes in length. There was a further provision that there would be no restrictions on the children initiating telephone contact with the other party.
[39] The order provided for individual counselling for the children.
[40] In addition, there were the somewhat typical provisions in such orders to provide such that “the parties shall engage in all possible practical efforts to actively foster and facilitate the relationships between Jane, James and John and the other party and/or members of the other party’s extended family.”
[41] A further provision was that,
The parties shall refrain from any subtle or open denigration of the other party and/or members of their extended family in any communication with Jane, James and John and/or in their presence.
[42] Paragraph 4 of the order provided that,
The parties shall refrain from any manner of conflict, subtle or open, in the presence of Jane, James and John and, accordingly, relate to one another in a reasonable and cordial manner in all instances in which Jane, James and John are present or nearby.
[43] Paragraph 5 provides that,
The parties shall refrain from any form of reliance on Jane, James and John to communicate information between them.
[44] Paragraph 6 reads,
The parties shall refrain from any discussion of issues pertaining to the parenting arrangements, property or financial issues with Jane, James and John, either directly or indirectly.
[45] Paragraph 7 reads,
The parties shall respect the privacy of the other party and, as such, refrain from engaging Jane, James and John in any discussion or questioning about the other party’s personal life or activities.
[46] Paragraph 8 reads,
The parties shall refrain from any form of interference, direct or indirect, open or subtle, in the life, activities or routines of the other party. In this regard, neither party shall schedule medical or dental appointments or any other appointments or activities for Jane, James and John requiring their activities involvement or involvement by the other party during periods of time in which they are in the care of the other party without consultation and consent from the other party.
[47] It will become obvious in this decision as to why this court has cited those specific paragraphs of the order.
[48] In a sentence, it is hard to imagine how one party, and in this case the respondent, could deliberately breach each of those provisions and attempt to offer to the court what he presumably felt were “reasonable explanations” as to his actions and take the position that his actions were not in breach of those provisions.
ORDER OF JUSTICE WILDMAN DATED APRIL 28, 2014
[49] At tab 3 of the Trial Record is the order of Justice Wildman dated April 28, 2014. This is also an order on consent. So far as it relates to this trial, the order provided for, in paragraph 9 thereof, child support to be paid by the respondent to the applicant in the amount of $259 per month commencing May 1, 2014.
[50] That provision was based on the parties’ then disclosed incomes of $105,703 annually for the respondent and $89,227 annually for the applicant.
[51] There were further provisions dealing with the sharing of section 7 expenses and a provision that a variation of child support could be sought based on a material change in circumstances.
[52] The order further provided for annual disclosure of income and for dispute resolution with a parenting coordinator or a mediator/arbitrator.
[53] While the Motion to Change seeks to change that order as well, the bulk of this fourteen day trial related to the issues of custody, parenting time and alienation.
Issues Arising Immediately Following Consent Order
[54] The applicant’s evidence is that within three days after the receipt of the Corkery J. order, there was a breach wherein the respondent’s girlfriend picked up Jane at school and advised that Jane would not be coming to the applicant’s home for her scheduled parenting time.
[55] As an indication of what was to come, the respondent served the applicant with a “no trespass order” on November 18, 2013 which was three days after the date of the Corkery J. order and, the court notes prior to the order actually being issued and entered December 3, 2013.
THE APPLICANT
[56] The applicant is 44 years of age. She and the respondent were married to one another and are the parents of three children being Jane, James and John.
[57] She had worked in sales and marketing but after the decision to have children she decided to go to Teachers College and started teaching in 2002.
[58] She is currently a kindergarten teacher.
[59] Her evidence was that the respondent became a firefighter and in addition to that job also was involved with the Firefighters Union. When the children were very small he worked night shifts of 14 hours and day shifts of 10 hours. When his Department changed to a 24 hour shift he then began working 7 days out of 28.
[60] When the children were young, she testified that both she and the respondent participated in routine household tasks such as caring for the children, shopping, cooking and cleaning and laundry.
[61] The family had help from the respondent’s family, who lived directly across the street, and from her mother, who would come and stay with them to assist with childcare. In addition, her father and his wife would also occasionally come and help the family.
[62] In the early years of their relationship, she recounted an incident. She was driving, and the respondent was in the passenger seat. As they were travelling to her grandfather’s 80th birthday celebration, the respondent began arguing with her and became enraged and grabbed the emergency brake causing them to go into a ditch and strike a tree. (In his evidence the respondent denies grabbing the emergency brake.)
[63] During the last two years of the relationship prior to separation, her evidence is that the respondent became more volatile and threw things at or near her. The applicant testified that he was obsessed with the idea that she was having an affair. Her evidence is that she had never had an affair during the marriage
[64] She further testified that the respondent had a constant need to be “in control” and that he utilized a feature on her cell phone to be able to track her whereabouts. Two examples that she cited were, on one occasion when she attended at a lawyer’s office in July 2011, he telephoned her four times during her appointment with the lawyer, knowing exactly where she was at the time. The second example she gave happened in August 2011. They were in New York for a few days and she left early to return to school. While the respondent was still in New York, she claims that he was able to track her whereabouts and knew that she had taken a different route home. She says that he did so in order to look at possible housing for her and the children. He accused her that she was travelling to a residence for purposes of having an affair.
[65] As further proof that he was tracking her whereabouts through her cell phone, she indicated that she, as a result of these situations, learned that there was a “track my phone” feature on her phone which she then disabled. Shortly thereafter, however, she testified that he insisted on having her cell phone for some unrelated purpose. When he returned it to her she noticed that that the tracker had been reconnected.
[66] The applicant testified that she and the respondent had a “huge blowout” as a result of a 40 minute telephone conversation she had with the respondent while he was at work. He was unaware that his mother was present with the applicant at the time and had overheard the conversation. Her evidence is that upon the respondent being advised of the same, he said “you better not be there when I get home”. As a result, she went to a hotel. The court notes that on this particular point the respondent did not call his mother to give evidence to refute the applicant’s testimony.
[67] The applicant’s evidence is that she made the decision to separate and that she had sought legal advice prior to so doing. She indicated that she discussed with the respondent that they should jointly tell the children and asked that they speak to a therapist about how to tell the children. The respondent was unwilling to do so.
[68] Her evidence is that when they met with the children, the respondent cried the whole time, making it obvious that it was her decision to separate and not his.
[69] Immediately following the decision to separate, she wanted them to each be out of the matrimonial home for a period of time but he refused to leave, according to her evidence.
Applicant’s Notes
[70] An issue arose during the trial as to the admissibility of notes made by the applicant.
[71] The applicant’s evidence is that she began a chronological chart and would make notes immediately following events. Sometimes she says that she would type the notes into her cell phone when the events happened or other times she would record them when she had an opportunity to be away from the children for a few moments but do it at a time close to the time of the actual event.
[72] The court ruled that her notes were admissible. Her evidence is that she required them mainly to refresh her memory as to the dates of certain events but that she had an independent recollection of those events.
[73] On the issue of those notes, the court found them admissible but the court takes into account when it comes to weight the fact that the notes were entered in the applicant’s computer and, therefore, she would have had an opportunity, if she chose to do so, to edit the notes at some time subsequent to making them. Further, since the notes were not made contemporaneously with the event (such as police officer’s notes) the court does not rely on the verbatim recording of events. Further, the court takes into account that it was the applicant who made the notes and not an independent third-party and, therefore, those notes would be the applicant’s “version” of the events and not a recollection from an independent arm’s length witness.
[74] The topic of the volume of the applicant’s notes was the subject matter of much discussion relating to the assessment done by Mr. Hurwitz as well. Reference will be made in the section discussing the assessment but suffice it to say that the respondent objected to the fact that the applicant tendered copious and voluminous amounts of material such as notes and emails to the assessor.
THE RESPONDENT
[75] The respondent is 46 years of age. From 1974 to the present he has resided in the immediate area of Thornton. After high school he took courses as an electrician, working in that trade from 1990 to 1997. In 1997 he became a 5th Class Firefighter quickly rising through the ranks to a 1st Class Firefighter. By 2004, he was an Acting Captain. He became a Captain in 2006 and was the fastest captain ever promoted by the City of Mississauga Fire Department. He was promoted to an Acting District Chief in 2011, at the time being 12th on the list, but now as a result of retirements has moved up to number one on the list to become the next District Chief.
[76] The respondent is quite proud of the fact that he has moved through the ranks of the Mississauga Fire Department faster than any other firefighter.
[77] In addition to working in that capacity, since 2005, he has also been involved in the Firefighters Association, first in the City of Mississauga Firefighters Association and then in the provincial Firefighters Association. Since November 2016, he has been president of the local Association.
[78] His work schedule from 1997 to 2007 was 10 hour day shifts and 14 hour night shifts. That changed in January 2007 to seven 24 hour shifts every 28 days. The pattern is a Monday and Thursday, followed by a Friday and Sunday, followed by a Wednesday and Saturday, followed by a Tuesday in the fourth week. Therefore, in each 28 day cycle he works seven 24 hour shifts and is off 21 of the 28 days.
[79] His evidence with respect to C.A. is that he had apparently met her but did not know her prior to John’s illness. His evidence is that this meeting was through her work in the Premier’s Office and his work in the Firefighter Association. He testified that when she learned that John was ill, as Director of Stakeholder Relations with the Premier’s Office she relayed the information to the Premier who then personally called him to offer his best wishes for John.
[80] He testified that C.A. worked at Queen’s Park a short distance from Sick Children’s Hospital and began visiting John. His evidence is that the first time “we formally met and had a conversation as people” was when she came to visit John in the hospital. His evidence is that “I don’t have a whole lot of recollection of her prior.” After the first meeting, she came often and once John was on the road to recovery and discharged, the respondent continued to see her. At March break of 2012 and at John’s insistence, James and Jane also met C.A..
[81] The respondent testified that C.A. did not come to the matrimonial home until May 2012. They then vacationed together in October 2012 sharing a room for the first time in November 2012. Thereafter, he would spend weekends and other times in Oakville where C.A. resided.
[82] According to the respondent, C.A. did not move into the matrimonial home and they did not actually live together until he purchased the new home prior to buying out the applicant’s interest in the matrimonial home. C.A. then listed her home in Oakville for sale on August 13, 2013 and they purchased their new home together on September 5, 2013.
[83] His evidence is that Jane and John immediately took to her but that James was initially more standoffish.
[84] He testified that the children call her “C.A.” or “C.A.” but not “mom”.
[85] The court finds the respondent’s evidence with respect to his meeting and relationship with C.A. is not plausible. Based on his evidence, C.A. would have only met him by happenstance through his work with the Firefighters Association. Yet, C.A. supposedly then has the Premier of Ontario call the respondent to wish him well with respect to John’s illness. Further, C.A. comes to visit John in the hospital with a gift and that following this, the respondent and C.A. then developed a friendship and later a relationship.
[86] Not that much turns on it, but this court has a great deal of problem with the respondent’s credibility on that issue. The court strongly suspects that the relationship had developed at a time prior to that which he claims.
[87] The respondent claims that C.A. is not listed as a mother for the children on any documentation but she is shown as a Guardian or stepmother on the sports registrations.
[88] He testified that he hopes the relationship with C.A. is permanent as they have a home together and are raising three children.
[89] He describes Jane as a beautiful girl inside and out. She has won awards for being empathetic and mindful of others’ feelings. “We (presumably the respondent and C.A.) are proud of her abilities as a student and she is a gifted athlete.” He bragged about the fact that last year in baseball, Jane played with fourteen and fifteen year old boys and excelled. Her aspiration is to get an NCAA scholarship. Next year Jane will be attending Bear Creek Secondary School in Barrie.
[90] When describing James, the respondent indicates that he is a thinker and analyst. In the last six months he has been far more outgoing. He went to leadership camp and came back changed. James is athletic in baseball and hockey and track and field. At the school track meet he won four events and came second in the other two events in which he participated. James is known for his politeness and maturity.
[91] John is the most loving child that the respondent says he’s ever seen. He is also funny and has a great memory. The respondent commented on him being gravely ill shortly after the separation. This year, John wanted money for his birthday to donate to children. He is such a gifted athlete that he is erasing his brother’s records at school. His time and running is better than some grade sevens. The respondent commented on how he is most proud of how polite John is.
[92] In examination in chief, the respondent made a statement that borders on bizarre, given the evidence the court has seen and heard with respect to how the children treat their mother. He said “the children are respectful of each other and we insist on it.”
[93] The court will have more to say about this later but finds it supremely ironic that the respondent comments on how polite, mature and empathetic the children are and yet condones the behaviour that they have towards their mother.
[94] According to the Apple Google map presented by the respondent in evidence, the distance from his home to the applicant’s is 8.9 km or 11 minutes. The distance from his home to the Baxter School is 11 km or 9 minutes. Nothing turns on this and it is similar to the distances and times given by the applicant.
[95] The respondent’s parents live immediately across the road from him while the applicant’s mother lives in Beaver Valley, being Kimberly, Ontario, located about 1 hour 15 minutes north and west of Barrie. Her father used to live in Collingwood but now lives in Wasaga Beach.
[96] Prior to the separation the respondent said that the applicant had a good relationship with both his parents but was closer to his mother.
[97] The respondent denies ever hearing any profanity at sporting events by his father towards the applicant or her family.
[98] The respondent was questioned about an allegation made by the applicant, that in July 2016 she said he was yelling and almost violent while coaching one of the children’s baseball games. Not only did the respondent deny this, but said that he was the peacemaker. He said the umpire made the wrong call but he reduced the heat.
[99] At that time, the respondent did acknowledge that it was two months after the Mother’s Day incident where he alleged the applicant’s stepfather, T., pushed John. He did tell T. to keep his hands off his son. His evidence is that the applicant then shoved him and he walked away, whereupon John hugged him and said “thanks for sticking up for me, dad.”
[100] When it comes to specific details relating to events that occurred, the respondent testified that he did not make any notes or logs relating to any events. Therefore, he was relying on his memory or on documentation shown to him. By way of contrast, he acknowledges that the applicant has all along been taking extensive notes. Even though, as noted earlier the court sees some issues with the applicant’s notes, by contrast the respondent has none.
[101] However, for the court an even bigger issue is that the court finds his explanations lack plausibility and always show him in the most favourable light. By way of a small example, when questioned about the applicant’s note taking, he stated “M.B.’s been an avid note-taker and I have not been. I have just been focused on being a dad.”
[102] When asked to describe the relationship he had with the applicant’s parents prior to separation, the respondent said that he was close to her mother. He said he didn’t think anyone was happy with her mother’s husband T., but that he was fine with her father B. and his wife C.1.
[103] The respondent’s evidence was given in the third week of trial. His counsel questioned him about the two weekends during the trial and his interaction with the applicant. His evidence was that those weekends were without incident and according to him it was “the way it should be”.
[104] When questioned about the telephone calls to the children when they were with the applicant, he said that it was less than once a month that he would initiate a call between 7:00 and 7:30 in accordance with the agreement. This was largely due to the fact that the children were always at sporting events at that time.
[105] Regarding calls initiated by the children, his evidence is that “James feels he has to be the last person that I speak to at night.” The respondent claims that he does not have long calls perhaps up to three minutes.
[106] Although not much turns on it, this court found the respondent’s depiction of the argument that he and the applicant had while she was driving which resulted in them going into the ditch was quite revealing. He denied grabbing the emergency brake. He said, however, that they were having an argument and he opened the door when she was accelerating. Thereafter the car went into the ditch and had a flat tire.
[107] This court found that quite interesting given the evidence heard about James (and John) jumping out of a moving vehicle, and the evidence about all three children jumping out of the vehicle at the stop sign and then getting into the respondent’s vehicle.
[108] It seems that the children are mirroring the actions of their father in many ways.
[109] On the issue of the Ladies Ski Day about which the court heard evidence, the respondent indicated that he did not approve of the applicant taking a day off to go skiing. Based on his work with the Firefighters’ Association, he knew that claiming to be sick and then going out in public was not good because it could result in termination of employment.
[110] The court found this interesting because ethically, the respondent admitted he had no problem with the applicant taking a day off to spend time with him as long as she stayed inside and was not going to “get caught” (the court’s terminology). But he did have a problem if she went out in the public and risked getting caught. The court finds this is an interesting perspective for someone in a position of a District Chief.
[111] He testified that in January 2008 the applicant was involved in a motor vehicle accident while the children were with her. She was travelling on an unlit road at night in an 80 km/h zone. She came over a crest and struck a gentleman who was in the middle of the road driving a motorized scooter at approximately 18 km/h. Unfortunately, the gentleman died in the accident. To his credit, the respondent testified that the accident was absolutely not the applicant’s fault. His evidence is, however, that this changed her profoundly and that her “coldness” became more severe and she became more detached from him.
[112] According to his evidence, the applicant did not seek counselling for about 2½ years later and that the counselling turned into marriage counselling which was a surprise to him.
[113] The respondent testified that to this day, the children believe that she hit a box and they have no independent memory of the accident. This court hopes that he is being truthful when he says that he has not disclosed the fact that someone died in this accident to the children.
[114] When asked about the allegation of tracking the applicant on her cell phone, his explanation for his knowledge of her going to a lawyer is that their cleaning lady told him this in July 2011 when the applicant was going to the lawyer.
[115] When asked about the feature of “find my phone” so that he could allegedly track her whereabouts from his phone, he has a very “plausible” explanation. He claims that because he was using his phone for Association work they jointly downloaded this app so that she would be able to find his phone in the event that he lost it.
[116] Regarding the knowledge that he had that the applicant was on a different route on the way home from New York City, the respondent once again has a “plausible” explanation. His brother who is a real estate agent, by happenstance, was showing a house across the road from where the applicant was driving. His brother took it upon himself to call the respondent to report that he had seen his vehicle, thinking that it was the respondent but of course it was the applicant.
[117] This court views each of these explanations with a great deal of cynicism.
[118] Regarding the telephone call described by the applicant when the respondent was at work and she was at home with his mother in the room, the respondent says he “wasn’t too pleased”. His explanation for the applicant leaving was that she felt the conversation was “too heated”.
[119] Regarding the September 11, 2011 discussion with the children about the separation, his evidence is that he did not want to tell them until they had “a plan”. Given that his “plan” at the time concerned him buying out her interest in the home, presumably it would have to wait until they had that agreement in place although he did not actually say that.
[120] The respondent claims that the applicant is cold and detached from the children and even at the time of telling the children of the separation they hugged her but she did not initiate hugging them.
[121] In testifying about the March 23, 2012 incident in which the applicant claimed he locked himself in the bathroom to go through her purse (and phone). He once again has a plausible explanation that he locked the door because he was going to have a shower (he did not explain the need to lock the door) and her purse and phone happened to be in the bathroom. He denies punching the window of her car as she alleged.
[122] When asked about a number of other events alleged by the applicant, he denied having a memory of those and indicated that he did not keep a log or diary as did the applicant.
[123] His explanation of why he had the children for Mother’s Day 2012 is because they had, arranged a few weeks before, the alternating weekend schedule through counsel, and at the time they did not know when Mother’s Day weekend fell. This of course does not offer any explanation as to why, once he realized the weekend Mother’s Day fell on, he would not agree to make adjustments to the schedule. With all the advertising for Mother’s Day, it is difficult to imagine that he did not realize until the day of, that Mother’s Day was approaching.
[124] He also was asked for an explanation regarding removing the applicant’s pictures. They were nesting in the home at the time and there was a large prominent picture of the applicant in the home which he found to be “front and centre” so he removed that when she would leave the home. He does not explain why it was necessary to remove it but the court conjectures it related to his anger towards or possibly, Ms. C.A. did not wish to view that picture. However, he claims that the children had pictures of their mother in their rooms.
[125] He was also questioned by his counsel about changing the sheets on the master bedroom bed. He initially said when “we” would leave but then corrected himself to say that no it was not “we” because the children were not leaving. The other obvious explanation is that “we” meant he and C.A., not he and the children.
[126] Regarding the listing of the matrimonial home for sale, his evidence is that he was advised by his mother that the “for sale” sign had gone up. This apparently was while he and the children and C.A. were in Disney World.
[127] The respondent claims the children were in hysterics when they saw the “for sale” sign.
[128] There are a number of problems that the court has with the respondent’s evidence on this point. Firstly, he testified that he had talked to his brother, presumably before going to Disney World, about listing the matrimonial home. Secondly, he was aware from his mother that the “for sale” sign was on the home and yet did nothing to shelter the children from their apparent shock at seeing this happen. Thirdly, he indicates that he had made offers to the applicant to buy out her interest prior to the listing of the home, but he does not contradict her evidence that the price at which the home was listed and ultimately sold was $200,000 more than the price that he had offered for the home. Fourthly, there was correspondence between counsel prior to that time where he indicates that he is agreeable to the listing of the home for sale.
[129] The court finds that he is somewhat disingenuous with this testimony.
[130] When questioned by his counsel about the assessment process the respondent raised the following concerns:
• Claims that Mr. Hurwitz was confused when he called him on one occasion by confusing the applicant’s issues with his issues.
• Claims that the applicant sent far more communication to Mr. Hurwitz than did he and that Mr. Hurwitz limited his issues but allowed the applicant to have 70 plus issues.
• Claims the comment by Mr. Hurwitz that the respondent said they were “at war” was mischaracterized when he believes what he said is that he was under attack.
• On the issue of sole custody he claims that the applicant said she was doing him a favour because given that he was a shift worker and she was a teacher she could get the kids.
• On the issue of Mr. Hurwitz’s comments about his behaviour at the joint session, he says “I was disrespectful I am sorry for my behaviour I’ve reflected on the way that I expect to be treated but also I never acted this way in front of the kids.” On cross-examination on that point the court finds that the respondent was somewhat evasive. He claimed that he had tried to improve himself and work on his anger. The court finds if anything, the respondent has perhaps become more subtle about how he goes about achieving his objectives.
• On the issue of Mr. Hurwitz believing that the respondent coached Jane he denies having done so saying that she’s an independent thinker and he had no idea what she wanted to say to Mr. Hurwitz.
• When asked directly if he knew what she wanted to talk about with Mr. Hurwitz he denies having known that.
• On the issue of his counselling sessions (where he had been referred by his counsel before or during the assessment process) he says that he learned a lot from the counsellor and that she was excellent and he found it a calming experience.
• On the email between he and the applicant he claims that it was hard for him to read it because he is embarrassed and he has apologized and is truly sorry.
[131] Actions speak louder than words and given the respondent’s actions since the assessment report was completed, this merely fortifies this court’s opinion that his evidence, particularly on these issues, is polished and lacking any degree of genuineness.
[132] The respondent testified that he had been suggesting for some period of time that they stop the mid-week visits (during the seven day stretch). He suggests this because of the multitude of the children’s sporting activities and the difficulties that these mid-week visits were creating. His evidence is that as of the winter of 2017 they finally did stop those mid-week visits.
[133] His evidence is that since mid-week visits have stopped, things have improved and that, overall, there has been a general improvement within the last few months.
[134] On the topic of the three children exiting the applicant’s vehicle and running back to his vehicle, he denies doing anything to encourage them to do so but he had no concerns about their decision. His only concern was about the lack of latitude and flexibility and “common sense” from the applicant.
[135] The respondent says that the trespass notice was issued because the applicant was taking pictures of the exchange. He did not indicate how that was problematic or did not indicate if he had done anything which would have caused the applicant to feel the need to record the exchange.
[136] The trespass notice he said was issued when he was living in the subdivision house. As a result, the applicant would stay on the road. However, he has been back in the matrimonial home since 2014 and he still has not seen fit to change that to allow the applicant to do anything but park on the side of the road at the end of his 200 foot long driveway.
[137] On the subject of skiing, his evidence is it was the children who wanted to play hockey rather than go skiing.
[138] The court found it interesting, however, that he testified that Jane went skiing with her friends one time last year.
[139] The respondent claims that it was upsetting for James during the 2013/14 winter, when his mother was taking them skiing on weekends that she had them and he was taking him to hockey on “his weekend”. He claims that James was upset because he didn’t think anyone on his team knew who he was.
[140] His evidence is that it was all up to the children and that if they wanted to ski we (presumably C.A. and he) told them that we would do that but after the separation, his name had been removed from the private Beaver Valley Ski Club.
[141] On the issue of Jane visiting the applicant between September 2014 and July 2015, he believes that she went more than the three times claimed by the applicant but he has no record.
[142] On the issue of the applicant’s allegation that following sporting events on “her night” the children sometimes had been 45 minutes with him prior to leaving with her, he claims that the whole team sometimes is there for 45 minutes and that he often leaves the field to encourage the children to go with their mother.
[143] The respondent claims that he is in no way trying to keep the children’s sporting equipment from the applicant. He claims that it is their equipment and they should take pride in it, including washing it regularly. He claims that the applicant had made a suggestion of using a storage locker (even though she did not testify to this at any time nor was she cross-examined on that point) and then went on to explain why that would not be viable.
[144] On the issue of permission to go to his house to pick up the equipment, he claims that he simply wanted a “heads up”.
[145] On the incident of James and John jumping out of the applicant’s vehicle rather than going to C.T.’s residence, he testified that he told them it was not a good idea to jump out of a moving vehicle. However, he also testified with some pride that the reason John did not get hurt is because he “stuck the landing” when he jumped out of the vehicle. The respondent’s demeanour when he was giving this evidence was one of his sense of pride that his young son could jump out of a moving vehicle and not get hurt. The court notes as well that according to the applicant’s evidence during the argument with her at the beginning of their relationship, the respondent opened the vehicle door and was preparing to jump out of her moving vehicle just before it struck a tree.
[146] On the issue of the parenting coordinator, he had a complaint about Doug Manning as well in that he apparently did not do an intake meeting with the respondent.
[147] On the subject of an arbitrator, the respondent claims that he was flexible about who would be chosen. On this point, based on Wendy Hunter’s notes, it appears that the respondent was clearly not supportive of that process. Therefore, this court does not believe the respondent would have been supportive of counselling for the children.
[148] In reference to Exhibit 126, being an email from the applicant to the then parenting coordinator Doug Manning copied to the respondent in November 2014, he uses that as an example of the applicant’s insistence that the agreement be followed; whereas; he was being very flexible in allowing seven-year-old John to decide that he wanted to stay with his mother. The court finds that it may not be unreasonable that a parent suggest that the agreement not be followed to the letter when a seven-year-old wants to stay with the other parent. However, given the dynamics of this separation, the court can well understand why the applicant would want to “cover her tracks” when it was the respondent who decided that a child could spend additional time with her.
[149] The respondent claims that he encouraged the children to go for counselling rather than the applicant’s version which is the exact opposite.
[150] The respondent gives an interesting description of the visit by the police when the children allegedly ran away from the applicant’s residence and took a cab to his residence.
[151] According to the respondent’s evidence three tactical officers came to his residence, including one who had her hand on her gun, running through his open garage door. He alleges that the officers were “harsh” and that the officers didn’t believe him that he had not picked up the children.
[152] On the subject of the text messages being received by Jane on her iPod he claims that it was not until December 25, 2015 when Jane brings the iPod to him that he realizes that she had been reading hundreds of text messages from her mother to various other people.
[153] The court finds this is another area of his testimony that is difficult for the court to accept.
[154] The court has absolutely no doubt that when the children are with their mother, based on not only the applicant’s evidence, but the evidence given by the children to the counsellors, that the respondent and his girlfriend are in regular contact by telephone with each of the children each day. The respondent and his girlfriend were aware, as of December 5, that Jane is receiving these messages. It is inconceivable to this court that the respondent expects this court to believe that he had no conversations with Jane between December 11 when she returns to her mother and December 25, some 2 weeks later, about these messages that she is receiving.
[155] The respondent then claims that Jane was upset and distraught by these messages and it changed her view of her mother. He claims that, at the same time, he and C.A. were trying to teach the children appropriate checks and balances with respect to the use of social media.
[156] The respondent claims that Doug Cochrane of the Society only spoke to the respondent a couple of times. The respondent claims that he would not get a call back for months at a time after leaving a message for Mr. Cochrane. In addition, he apparently refused to provide an email address when the respondent asked last summer.
[157] Once again, the court finds this testimony to be very difficult to accept, given that there are logs of calls into the Society and given the responsive nature of the Society to the applicant.
[158] On the subject of the respondent allegedly blocking the applicant in a relatively empty parking lot so that she would be late for work, his explanation is that at the time that she took the picture he had simply run into the office to advise the school that the children would not be there.
[159] On the subject of the email from Jane to her mother about listing of the applicant as “M.V.” he claims to have not been aware of it until he saw it in this litigation and that he is upset by it and can understand why the applicant would be upset. When Jane raised it with him, he told her it was not a big issue but says that she raised it with him a few times.
[160] In reference to the May 30, 2016 police report, he claims that he tried to work out a compromise with the police that, the children be allowed to sleep the night at his home and go to their mother’s the next day but the applicant insisted they leave that night. The court notes that this is the same night that the police report that, notwithstanding the dramatics in the respondent’s home, the children were fine while walking to their mother’s vehicle.
[161] The respondent acknowledged that in discussing the December 2015 incident where, allegedly, the applicant grabbed the cell phone out of Jane’s pocket and the children subsequently “attacked” their mother by pulling her hair and biting her, he says this behaviour has to stop.
[162] When asked by his counsel about the language used by the children in the video with their mother, he claims they are not permitted to talk that way at his house. He claims that he said to C.A. “I did not know they knew those words.” However, he does find it disturbing that she did not pull over.
[163] When asked about what he did with the video, he answered that on his lawyer’s advice he forwarded it to the police. He did not know what they would do with it but hoped that there would be a strong caution for everyone (presumably for the children as well).
[164] In his evidence he testified that regarding the second video, he was concerned that the applicant indicated there may be consequences and he was also concerned that the children said their mother hit them all the time.
[165] He claimed in his evidence that he told the children their behaviour was not appropriate regarding the first video and that they were jeopardizing everyone’s safety.
[166] In relation to Exhibit 127 being the police report of February 6, 2017 which involved Jane ultimately being arrested, the respondent comments on the conduct of the officer that night. He claims the officer said “I’m tired of this shit” and the next thing he knew Jane was arrested. The respondent was disappointed that the officer did not come back into the house but got in his cruiser and left. The court notes that the respondent did not indicate that he even mentioned anything to Jane about injuring her mother with her lunch pail.
[167] The respondent denies ever bad-mouthing the applicant to the children, saying that he took into account what Mr. Hurwitz said.
[168] The respondent claimed in the final questioning by his counsel that he feels the kids need relief. He claims that he believes it is important that the children have a relationship with both parents but they need a cooling off period. His evidence is that the applicant uses the police instead of therapy to deal with the situation and that she never reached out to him to see what “we can do”.
[169] The respondent does believe that Wendy Hunter is of assistance but claims that Jane said to the Society that she will run away where nobody will find her which is concerning to him.
[170] He takes the position that Jane should be left with him and says that if the pressure is relieved time will heal. He claims that John is fine going back and forth.
[171] His solution is that if they go every other weekend they may be more comfortable with that.
[172] On the subject of police enforcement, he claims that that is “an absolute disaster for the children and has created scars that will be difficult to erase.” He notes that when John was resisting going the last time the officer told John that “I’m bigger than you.”
[173] The respondent claims that this has been so upsetting to Jane that when she saw a police officer at Tim Horton’s she became upset, but he is confident that a cooling off period will be of assistance and that the kids will ultimately go to their mother’s.
[174] In cross-examination, his evidence is that James and John did not jump out of the car because they did not want to see C.T. but because they wanted to go to be with their team for breakfast.
[175] When asked on cross-examination about believing that the children should be able to decide at age twelve when they want to go with each parent he denied ever saying that (as did his counsel). The applicant’s counsel then pointed out that in his response to Motion to Change, he specified that was in fact his position, although he claims he has now changed in that position.
[176] When questioned about his challenge to Howard Hurwitz, the respondent claimed that he was only challenging the process. Similarly with the parenting coordinator, he was challenging the process. With Doug Cochrane he challenged his process as well.
[177] As well, in cross-examination he admitted that prior to the police enforcement, the children may have gone to spend time with their mother less frequently than he claimed in his evidence in chief.
[178] On the issue of the children apparently telling Mr. Musselman that they did not want to go to counselling, he testifies that he did not feel he could overrule Mr. Musselman who was a professional, even though he personally felt that the children would benefit from counselling.
[179] Regarding the TLC report, he did not agree with it because he felt it was vague and did not set out the children’s views and preferences.
[180] The respondent also denies telling Mr. Hurwitz at the time of the assessment report that he calls the children three times a day.
ISSUES CONSIDERED
Children’s Intermittent Affection Towards Their Mother
[181] Notwithstanding the horrible manner in which the children treat their mother and notwithstanding their protestations that they do not want to spend time with their mother, the evidence indicates that the children can and sometimes do enjoy their time with their mother.
[182] The applicant mentioned that during the time that Jane was not coming to see her (2014/2015) on Christmas and Boxing Day, she and Jane had quite a close time together.
[183] The applicant also testified that John will hit her and fifteen minutes later he will hug her.
[184] She also testified that James will say he wants to have nothing to do with her and will be extremely aggressive with her but then will, even recently, want to sleep with her because he is nervous about going to camp.
[185] The applicant also testified that on Mother’s Day, John forgot his homework at her home and she went back to the respondent’s residence with it. John came out the driveway, got the homework from her and in an affectionate manner said “Happy Mother’s Day”.
[186] The applicant testified that she had the children for a number of uninterrupted days over Christmas and New Year’s 2016/2017. Her evidence is that during that time, she and the children had a good time. The court notes that the applicant held her emotions in check virtually throughout the trial but that this was one of the times when she did become emotional.
Distances Between the Parties’ Homes and School
[187] The evidence is that the respondent’s home is about halfway between the applicant’s residence, which is in Barrie, and the children’s school, which is in Baxter.
[188] The travel time between the respondent’s home and the school is about eight minutes, being a similar travelling time from his home to the applicant’s home being eight to ten minutes.
[189] Travel time from the children’s school to the school where the applicant has worked is 15 to 20 minutes south and west. Therefore, the total time from the applicant’s home to the school where she teaches is about 35 to 40 minutes depending on traffic.
Initial Settlement Meeting
[190] The parties agree that shortly after the separation, they agreed to have a meeting wherein the respondent’s mother and the applicant’s brother would attend to assist them in hopefully resolving some, if not all, issues.
[191] The applicant’s evidence is that at this meeting the respondent insisted that they first deal with him buying out her interest in the house.
[192] She testified that when she wanted to discuss parenting issues, the respondent refused and that within five minutes of the commencement of the meeting, he angrily concluded the meeting.
[193] She also testified that at that time he said to her that he would take the children and all of her money from her.
Nesting Arrangement
[194] The parties engaged in a “nesting arrangement” pursuant to which for a period of nearly two years, the parents would leave the matrimonial home for periods of time and the children would remain in the home.
[195] According to the applicant’s evidence, during the time that the respondent was in the home, quite often his girlfriend would spend time there as well.
[196] Both parties seem to agree that this nesting arrangement and the length of time that they were doing so exacerbated problems between them.
[197] The applicant cited examples, such as the respondent and his girlfriend not changing the sheets on the bed and she being required to bring her own sheets so that she did not have to sleep in the sheets utilized by the respondent and his girlfriend.
[198] As well, she testified that he took down pictures of her and that without consultation with her, the respondent and his girlfriend redecorated the downstairs bathroom.
Listing of Matrimonial Home
[199] The parties agree that the matrimonial home was one that was built by them on a property that had once been owned by the respondent’s parents and was immediately across the road from the respondent’s parents’ home.
[200] It is not disputed that the respondent indicated immediately following the separation, that he wished to acquire the applicant’s interest in the matrimonial home and that he wished to remain living there.
[201] At some point in time the respondent refused to continue to pay the household bills.
[202] The applicant’s evidence is that while the respondent made offers to purchase her interest, these offers were not remotely close to fair market value and therefore there was correspondence between counsel pursuant to which he agreed to list the matrimonial home for sale.
[203] In or about November 2013, shortly after the parties had signed final minutes of settlement, the applicant signed a listing agreement with a real estate agent. Her evidence is that the respondent’s brother is a real estate agent and she expected, based on the correspondence, that they had had co-listing between her agent and the respondent’s brother.
[204] The home was listed and a sign was placed on the lawn at a time when the respondent and children were vacationing in Florida at Disney World.
[205] The applicant’s evidence is that she had told the children prior to their departure that the home would be listed for sale and therefore, it should not have been a surprise to them when they returned and saw the “for-sale” sign on the lawn.
[206] In fact, it is the applicant’s evidence that during this Disney trip, their daughter Jane, who was then ten years old, called her each night wanting to discuss this issue and the applicant refused to discuss “adult issues” with her then ten year old child.
[207] The respondent attempted to make a “big deal” of the fact that the applicant listed the home for sale when she knew that he wanted to buy it from her.
[208] However, Exhibit 70, being a letter from the respondent’s counsel dated August 15, 2013, indicates that he is agreeable to listing the matrimonial home for sale and that he proposes it be co-listed by an agent of the applicant’s choosing and his brother.
[209] The applicant’s evidence is that the home was listed for a price of $200,000 more than he had suggested the price would be on which to base his buyout of the applicant. The listing price was based on an appraisal that she had done to determine its fair market value.
[210] The court heard evidence that ultimately the respondent did buy the applicant’s interest in the home and did so at a price that was based on a value of $500 more than the price offered by the arm’s length purchaser.
[211] This court finds that the way that the respondent handled the listing of the matrimonial home was another piece of the “alienation puzzle”. He clearly used the children as “pawns”, pretending that he knew nothing about the applicant’s intention to list the house. He “played up” the children’s negative reaction to the listing of the home to drive a wedge between the children and their mother.
[212] The applicant showed the children correspondence to prove that it was not she but the respondent who was not telling them the truth.
[213] The respondent has the audacity to use this supposedly as proof that the applicant, not he, is involving the children in adult issues.
John’s Illness
[214] Approximately two months following the separation, the parties’ youngest child, John, who was four years old at the time, became seriously ill. He was initially seen at Oakville Trafalgar Memorial Hospital in Oakville (taken by the respondent while he was in the area with the children). John was hospitalized in Barrie for two separate one-week periods. Subsequently, he was taken to Sick Children’s Hospital in Toronto where he spent an extended period of time including a period of about one week when he was on life support. For a few days it was uncertain as to whether or not he would survive.
[215] The applicant testified that even during this period of time, for the most part, the respondent was extremely angry with her. She described actions such as:
• Giving her “the finger” in front of the children.
• In front of the children demanding to know where she had slept the night before.
• Calling her a “fking ct” in front of the children.
• Telling her to “f**k off” in front of the children when she went to the house. She then sneaked back into her in-laws’ house whereupon she testified that her mother-in-law calmed down the situation.
• Regularly swearing at her and degrading her in front of the children when they were either at the hospital or at home while John was in hospital.
• Calling her an “old bag” in front of John.
[216] Her evidence is the only time that the respondent was civil with her during the time of John’s illness was for the two days they jointly spent at the hospital not knowing whether John would survive. At about that time her family had taken the older two children skiing.
[217] They planned a party at the home to celebrate John’s return from hospital. Her evidence is that the respondent refused to give her John’s hospital records.
Skiing
[218] The applicant testified that she had been a member of Beaver Valley, a private ski club, since she was a young child.
[219] Her evidence is that she, the respondent and the children skied virtually every weekend during the winter. The children who had begun skiing at two years of age were accomplished skiers for their ages and participated in ski racing.
[220] Following the separation, skiing became a “huge issue” and, as will be set out later, this court finds that the respondent’s actions relating to skiing and hockey are indicia of his alienating behaviour.
[221] The applicant’s evidence is that it was Jane who initially began resisting going skiing with her mother. As a result the applicant did not pay the fees for Jane to ski during the 2014 season.
[222] The applicant testified that she and the children skied on “her weekends” in 2012/2013 but that Jane did not ski at all with her in 2013/2014. James and John only skied with her twice during that season - once at Christmas and once during March break.
[223] As a result, the applicant did not sign up the boys for skiing in 2014/2015 or subsequent years.
[224] During the 2013/14 winter, the applicant testified that she took the children to hockey because they said they wanted that rather than skiing.
Hockey Enrolment
[225] Until the time of the separation, the children’s winter activity was skiing and the parties as a family went virtually every weekend.
[226] During the first winter following the separation (2011/2012) was the time when John fell seriously ill and was hospitalized from the end of November until the end of January. Therefore, during that time there was only limited opportunity for the eldest children to ski but obviously not for John.
[227] In the winter of 2012/2013, the respondent unilaterally enrolled James and John in hockey. He did so without any consultation with the applicant. As will be noted later, this court finds that this is one of many actions by the respondent to deliberately distance the children from their mother.
[228] For the winter of 2013/2014, the respondent also enrolled Jane in hockey.
[229] Currently, the children are all very involved in hockey. Jane is in “Rep B hockey”; James is in “Rep A hockey” and for the past winter John was in House League hockey but will be returning to Rep hockey next winter.
[230] Hockey is all-consuming for the family and typically, thirteen out of every fourteen nights the children are involved in hockey. On many nights all three children are at different arenas in hockey.
[231] In addition, there are a number of hockey tournaments for each of them.
[232] The involvement in hockey and the “interaction” of the parents at hockey, as well as the issue of the exchange of hockey equipment, has been one of the major sources of conflict between the applicant and respondent.
[233] As will be detailed later, this court finds that the respondent’s actions surrounding hockey have been another major attempt by him to distance the children from their mother.
[234] One of the real “tragedies” of this situation is that the evidence at trial discloses that the children are all very gifted athletes and the toxicity of the actions of the respondent have, unfortunately, resulted in huge conflicts where the children have been robbed of stress-free enjoyment that they otherwise would have had.
[235] The applicant’s evidence is that there had been a pattern whereby the children tell their mother that she should not be participating in hockey because she was not paying for it.
[236] This was at a time when shortly after the separation the applicant continued to pay for the children’s skiing and, the respondent was paying for the children’s hockey.
[237] The applicant’s evidence is that even at that time and even though she was not consulted about the children being enrolled in hockey, she was willing to share the costs of skiing and hockey on a 50-50 basis but the respondent was not willing to do so.
[238] The applicant’s evidence is that hockey becomes another “lightning rod” because while the respondent or his girlfriend or family members are at the arena, the children basically ignore and shun the applicant and her family. However, according to the applicant’s evidence, if the respondent’s and his girlfriend or family are not present, the children have a “normal” relationship with her and her extended family.
[239] According to the applicant’s evidence, following each game or practice, if it is “her time” with the children and they will be returning with her, the respondent keeps the children anywhere from 15 to 45 minutes after the game or practice talking to him. The court finds that this is nothing more than a further attempt by the respondent to distance the children from their mother.
[240] Tournaments, as well, have been a major source of conflict. The court accepts the applicant’s evidence that while she and the children are at tournaments, if it is “her time” the respondent and his girlfriend arrange it such that the children spend most of the time with the respondent and his girlfriend and very little time with the applicant.
Hockey and Sporting Equipment
[241] Dovetailing with the other issues around hockey is the major problem with hockey equipment.
[242] The respondent essentially takes the position that the equipment is to be left at his residence since he has paid for it.
[243] To compound matters, the evidence is that his house (the former matrimonial home) is set back 200 feet from the road which is an 80 km per hour road.
[244] To make the situation even more ridiculous, he of course has the no trespassing order so that the applicant is not allowed on his driveway or property.
[245] Therefore, when the applicant attends with the children to pick up the sporting equipment, she is not allowed to go near the home and the children are required to carry their equipment for 200 feet, the distance being from the respondent’s home to the end of his driveway to the shoulder of the road, where they put it in the applicant’s van. The court has heard evidence that on occasion, the respondent will drive the children in his truck down the driveway in order to avoid them having to carry the equipment. When he testified about this, it was almost as if he was trying to convince the court that he was somehow doing the applicant a favour by doing this. It is consistent with his view of himself as a “perfect father”.
[246] As if this was not ridiculous enough, there was an incident on February 18, 2016 when the applicant attended with the children for them to pick up their equipment. The applicant’s evidence is that she specifically instructed the children to get their equipment from the garage and not go into the respondent’s home. Notwithstanding these instructions, the children did go into the home and, as is typical, spent a considerable amount of time there while the applicant waited on the side of the road.
[247] The respondent’s girlfriend later arrived home and, based on her report to the police found at Exhibit 13, alleges that she felt that someone had “broken into the home”. Of interest, from the police report, even by the time she calls the police she acknowledges that she is aware that it was the children who were in the home and not some intruder.
[248] The applicant’s evidence (which was not contradicted by the respondent) is that she had left five voicemail messages on the respondent’s home phone to indicate that she was intending to come to the house to pick up the children’s equipment.
[249] The respondent’s girlfriend apparently called the applicant and due to the toxic relationship, the applicant was not willing to participate in a conversation with her and hung up on two occasions.
[250] This is one of the more than 30 times that the police were involved with this family. On this particular occasion, however, it was as a result of the respondent’s girlfriend contacting them.
[251] The court notes that in the police report, the police comment “this is not the first time that C.M.V. and (redacted but presumably C.A.) have made accusations against M.B. and in the past have tried very hard to alienate the children from M.B..”
[252] The police were very careful in ascertaining Ms. C.A.’s complaint and received confirmation that she had no issue with the children being in the home and further that she did not believe that the applicant had been in the home. She requested that, as per the custody order, “all arrangements to pick up or exchange items of a personal belongings of the children had to be made between the adults prior to.”
[253] As a consequence of all of this, the applicant then began insisting on an email response from the respondent confirming that she had permission to attend at his home (still of course on the public road) to allow the children to pick up their equipment.
[254] The respondent utilizes this as another of his examples of how unreasonable the applicant is being in insisting that she receive an email from him.
[255] He puts forward the position that he simply wants a “heads up”, be it a text or email, from the applicant to advise that she will be attending.
[256] The court sees his behaviour as something other than reasonable when taking into account the totality of his actions. It is his own girlfriend who is telling the police that she wants “arrangements” made between the adults prior to the children picking up the equipment. What other reasonable conclusion is there but that the applicant should receive confirmation from the respondent that the children are allowed to go there before attending the pickup of equipment if not to intentionally expose her to another complaint by Ms. C.A..
[257] In fact, the police made note in their occurrence report that they intend to “explain to the applicant the importance of following the custody order as not doing so, simply gives the opposite parties reasons to make things more difficult.” The court could not agree more with this statement.
[258] The other point that this court finds interesting is that the police in their occurrence report believe that redacted, but presumably Ms. C.A., is trying to explore every avenue of getting the applicant in trouble and further alienating her from her children,
Police believe that the children entering the house today and staying within could even be possibly in an attempt to lure M.B. to come into the residence to check on them causing her to breach her conditions which require her not to set foot on the property.
[259] The net result of this is that there have been occasions when the children cannot pick up their equipment because the respondent has not provided email authorization.
[260] The parties have spent time, money, police resources, and time of a neutral counsellor (Wendy Hunter) attempting to deal with this issue.
[261] While the court finds that in some ways the applicant contributed to this situation, the court understands why, based on all that had taken place up until then, the applicant was proceeding in a manner that without the history, may appear to have been unreasonable. If the parties had the best interests of the children at heart, the issue of sporting equipment would never have been an issue. The respondent would have allowed the applicant to drive down his 200 foot driveway, sit in her vehicle while the children went in to pick up their equipment.
[262] Further, the respondent could have been respectful of the applicant’s time when she was there to pick up the equipment and not have either encouraged the children or allowed the children to spend 10, 15, 20 or more minutes while the applicant “cooled her heels” outside.
[263] Further, were it not for the history of this situation, when the respondent’s girlfriend phoned, the applicant would have simply replied the children were there to pick up their equipment and would not have hung up on her.
[264] The court notes that this incident happened at the same time that the respondent and his girlfriend were surreptitiously, through utilizing thirteen year old Jane as a “spy”, viewing the applicant’s private texts.
Police Enforcement
[265] Until July 2015, there was no police enforcement clause in the orders of the court. The applicant’s evidence is that between September 2014 and July 2015 when the enforcement order was made, Jane had only been with the applicant on three occasions being, Christmas and Boxing Day 2014 and Jane’s birthday in June 2015.
[266] Combined with a motion to seek summer access, the applicant sought police enforcement in July 2015.
[267] Elsewhere in this decision, the court has commented extensively on Justice Graham’s comments made at that time.
[268] The court, however, wishes to stress that the applicant, in the court’s view, was in a “no-win” situation. If she did not seek police enforcement, the reality is that through the efforts of the respondent, the children would have spent less and less time with her to the point where there probably would have been no time being spent with her.
[269] Without police enforcement, the respondent was in “total control” of the time the children spent with their mother.
[270] On the other hand, since the applicant obtained the police enforcement order, that in of itself has been utilized against her such that the children have seen that as a “lightning rod” to provide further reason why the children now feel they should not be spending any time with their mother.
[271] To show how the respondent was treating this situation, even though the order of Justice Graham in July 2015, according to Justice Graham was clear that he intended the police enforcement clause to continue and not just relate to the summer access, the respondent did not accept that and filed the material in response to a 14B Motion for that clarifying order. As a result of the respondent’s material not coming to the court’s attention, the matter was heard in open court in November 2015 as is set out in another part of this decision.
[272] The applicant’s motion for summer “access” time with the children in 2015 was as a result of the applicant missing the “deadline” to choose her summer access.
[273] As is discussed in another portion of this decision, the respondent of course took what he considered a very reasonable position that, because the mother was 12 hours and 10 minutes late in February 2015 asking for her scheduled time in the summer, she was “out of luck” and so he then got to choose for 2015 as well as 2014.
Travel Consents
[274] Another area of conflict between the parties related to the issue of travel consent.
[275] The court heard much evidence and was provided with many exhibits relating to the mother’s refusal to provide a travel consent letter until the father had provided an itinerary as to his travel.
[276] In a “normal” and even somewhat high conflict case, reasonable people would be able to resolve these issues without court intervention.
[277] However, this trial was certainly not about people behaving in a “normal” fashion.
[278] The problem of course is that there was a total lack of trust between these parties. The applicant did not trust that if she provided a consent to the respondent based on his “tentative” schedule for holidays, that he would ever provide her with an itinerary once he had the consent.
[279] In all likelihood, she was right in this assumption given the respondent’s other actions.
[280] The respondent on the other hand claims that he did not trust the applicant and was worried that if he actually went ahead and booked a holiday and then asked for the travel consent that she would refuse to provide it.
[281] Of course, what he could have done was gone ahead and booked the holiday and, if she refused to provide the consent in accordance with the agreement, one would anticipate that a court would not have a great deal of difficulty in making an order dispensing with her consent and awarding costs against her if it found her to be unreasonable.
[282] The bottom line is that this is another situation utilized by the respondent to attempt to distance the children from their mother.
[283] On this particular point, the court finds that the applicant, due to her “fear” of the respondent not providing the itinerary, probably exacerbated the situation between she and the children as a result of the position that she took.
[284] Having said that, the court well understands, based on the totality of the evidence and the respondent’s actions, why the applicant would not be in a mindset to accommodate the respondent.
Medical and Dental Appointments
[285] In an attempt to avoid what actually occurred, the consent order of Justice Corkery spelled out in detail what was to occur with respect to these appointments.
[286] Given the high conflict of these parties, the order provided that in odd and even numbers they would alternate between who would be setting up these appointments.
[287] The order further provided that each parent was entitled to be in attendance at the appointments.
[288] While the court well understands the attempts by the drafters of the parenting plan and the consent order to spell out every last detail in order to avoid a conflict, the court finds that the wording relating to this issue was cumbersome and “doomed for failure” from the start.
[289] Having said that, it does not excuse the respondent’s actions relating to this.
[290] The court finds that the respondent set appointments for the children without advising the applicant. He changed the children’s dentist without advising the applicant. He arranged for Jane to have braces without advising the applicant. He pulls the children from a dental appointment including taking Jane out of the dental hygienist’s chair during a cleaning simply because the applicant arrived at the appointment.
[291] As with everything else, the respondent puts forward what he considers a reasonable explanation of each of these actions.
[292] This court finds, however, that this is another area in which the respondent’s actions were designed to distance the children from their mother.
[293] While it is the children who “claim” that they do not wish their mother to be present at these appointments and when she attends they insist that the doctor/dentist/other professional see them without their mother, the court has no doubt that the respondent and or his girlfriend are involved in “helping the children with this decision”.
C.A.
[294] As mentioned when this court was discussing the custody access assessment, this court has very little information about C.A., the respondent’s girlfriend. The respondent’s evidence is that they have been together since late 2011 and that their relationship is one of some permanence, now having lasted at least 5½ years. The court notes that it may well be the relationship is even longer than that but in the court’s view nothing turns on that point.
[295] What is extremely puzzling to this court is that Ms. C.A. was not called by the respondent to testify. As a result of a comment made by the respondent’s counsel, the court learned that C.A. was at the courthouse for the first twelve days of trial.
[296] This court finds this extremely unusual based on the fact that the children have relayed to others that they have a close relationship with Ms. C.A. and based on the permanence of the relationship described by the respondent.
[297] Was the respondent afraid of what Ms. C.A. might say?
[298] Was he afraid that he would not be able to control her evidence?
[299] In any case, parties and their counsel are entitled to call their case as they see fit.
[300] Therefore, the court is left with the evidence of others as it relates to Ms. C.A..
[301] One of those such instances is a hockey tournament in which the applicant testified that Ms. C.A. had cancelled her reservation at a hotel such that the applicant was required to stay at a rather “downscale” motel and not be in close proximity to the other parents who were attending that tournament.
[302] Further, the court heard much evidence about a recent tournament in which, according to the applicant, Jane was spending time with Ms. C.A. when it was “the applicant’s time”. According to the applicant, as a result of the applicant confirming with the hotel manager that Jane had not told her the truth when she said that Ms. C.A. had checked out of the hotel, Jane became quite upset to the point where she did some damage to the hotel room.
[303] In those situations, the court does not have the evidence of Ms. C.A. to contradict anything that the applicant is saying and therefore the court accepts the applicant’s version of those events.
[304] On this point, the applicant testified that this occurred on the Super Bowl weekend and that upon returning home, she, Jane and James watched the Super Bowl together and had quite an enjoyable evening.
[305] The applicant testified that this past winter when she and Ms. C.A. were attending John’s tournament, there was an “altercation” between she and Ms. C.A..
[306] The applicant’s evidence is that when she congratulated John on a great tournament, John shoved her, and Ms. C.A. and the respondent were smug about it.
[307] The applicant was holding John’s jacket and Ms. C.A. demanded that it be given to her and then said “buy your own f**king jacket”.
[308] The court notes that in the chart that the applicant provided to Mr. Hurwitz, she notes, as she did in her evidence, that when John, then four years of age was insistent that she meet Ms. C.A., there was this “altercation” even at the first meeting.
[309] The court notes that the applicant alleges that while Ms. C.A. was holding John in her arms she called the applicant a “fking ct” . While the respondent responds to other portions of the incident, he does not even deny that his girlfriend used this language.
Jane Grabbing Separation Agreement
[310] Exhibit 3 is a York Regional Police report relating to an incident on December 7, 2014.
[311] Jane at that time was eleven years of age. The uncontradicted evidence is that she grabbed the parties’ separation agreement from her mother’s purse while she, her mother and Ms. C.A. were at an arena for one of the boys’ hockey games.
[312] The applicant’s evidence is that she did not touch Jane but grabbed the agreement back from her.
[313] Based on the police report, Jane apparently alleged that her mother pushed her against the wall and that she struck her head.
[314] Following the applicant’s retrieval of the agreement, Jane then goes into Ms. C.A.’s vehicle.
[315] Jane then returns to her mother’s vehicle, purportedly for the purpose of saying goodbye to her brother (the court notes that this is at a time when Jane is not spending time with her mother and there is no police enforcement). Jane utilizes this opportunity to once again take the agreement and run back to Ms. C.A.’s vehicle whereupon Ms. C.A. leaves with Jane.
[316] The applicant is able to locate Ms. C.A.’s vehicle and then approaches the vehicle to attempt to retrieve the separation agreement but Jane and Ms. C.A. are not willing to provide it.
[317] The court notes that there was an independent witness interviewed by York Regional Police who essentially confirmed the version of events relayed by the applicant as to what occurred in the arena.
[318] What is most disturbing to this court is that Ms. C.A. obviously knew that Jane had taken the agreement from her mother on two separate occasions and yet, she as the “step-parent” does nothing to ensure that Jane is disciplined for doing this and returns the agreement to her mother.
[319] Clearly, the respondent has a copy of the agreement. Therefore, if Ms. C.A. felt it appropriate (for whatever bizarre reason) that an eleven year old child should be privy to this agreement, she or the respondent could have shown their own copy to the child.
[320] One possible bizarre explanation for this event (and perhaps the only logical explanation) is that this was an attempt to have the applicant assault Jane while taking the agreement so that the applicant could be charged.
[321] If Jane had acted on her own volition by taking the agreement, then any reasonable adult and in this case step-parent, would have insisted that Jane return the agreement to her mother and apologize for her inappropriate actions.
[322] Rather than doing so, Ms. C.A. thought it appropriate to assist Jane by driving off once Jane had returned with the agreement.
[323] This is just another piece of the puzzle which shows the motivation of the respondent and Ms. C.A..
Taylor Swift Concert
[324] The applicant testified that one of the birthday presents that she historically gave Jane was concert tickets so that she and Jane could attend concerts together.
[325] For her twelfth birthday in June 2015, the applicant surprised Jane with tickets so that the two of them to go with another friend and her mother to the Taylor Swift concert there was to occur in the fall of 2015.
[326] The applicant testified that Jane was so excited about this that she hugged her mother for about five minutes and called her girlfriend who was going to go with them to share the excitement.
[327] The applicant gave evidence as to what the respondent did in response. The court notes that the respondent gave no evidence on this issue and that his counsel did not cross-examine the applicant on this issue.
[328] Therefore, the court accepts in its totality the applicant’s version of this situation.
[329] The respondent, not only would not consent to the applicant taking Jane to this concert on “what was to be his time” but what he did next is, in this court’s view was enough evidence to prove alienation without the plethora of additional evidence of alienation.
[330] The respondent buys floor level tickets for Jane for that concert. Presumably, the respondent or another family member attended with Jane. That, however, is totally irrelevant to this court.
[331] The applicant testified that she ended up going to the concert herself but did not see Jane at that concert.
[332] Separated parents often act in a mean and spiteful manner. This action by the respondent is, in the view of this court, bordering on unconscionable.
[333] This action is clear evidence to this court that the respondent will stoop to any level to try to hurt the applicant and to try to destroy any relationship that the applicant may have with Jane.
[334] The respondent’s counsel was intense in her cross-examination of the applicant.
[335] She chose not to cross-examine the applicant on this point. The court suspects that her decision to do so was because the applicant was being truthful and the respondent’s counsel did not want to draw more attention to this. Counsel undoubtedly knew there is no possible rational explanation that excuses the respondent’s action on this point.
[336] As noted, the respondent did not give any evidence on this matter either.
Involvement of Children by Parents
[337] The applicant’s evidence consistently disclosed that she refused on most occasions to involve the children in adult conflict or to advise the children of what had gone in court. For the most part, this proved to be to her detriment as, the children were well aware as to what was happening in court and by the applicant not discussing the same with the children, they were formulating their own opinions based on hearing “one side”.
[338] There were a few situations where the applicant broke her own rule. She gave evidence that the children were violently upset when they came home and saw that the matrimonial home was listed for sale in November 2013.
[339] She believed that all of this was orchestrated by the respondent as he had already consented to selling the home and correspondence between counsel could prove that.
[340] Therefore, the applicant admitted that she did show the children the letter from their father’s lawyer wherein he had agreed to list the house for sale.
[341] This court and most courts implore parents not to involve the children in the dispute between the two of them and in “adult issues”.
[342] This case is no exception.
[343] However, there are a plethora of examples and circumstantial evidence to indicate that the respondent and his girlfriend are and have been, involving the children extensively in adult issues.
[344] Therefore, this court does not take fault with the applicant for doing so in that instance.
The Video
[345] Exhibit 19 was a video taken by Jane in her mother’s vehicle.
[346] By way of background, the applicant testified that the morning the video was taken was a morning in which the children had been late every day that week.
[347] The applicant testified that she reprimanded Jane for not getting up until 8:15 a.m. that morning telling the children that she was going to end up losing her job as a result of being late each day.
[348] The children’s response was “too bad if you don’t get to work on time take us to daddy’s instead.”
[349] Her evidence is that James began videotaping her on his iPod. The applicant wanted to delete the video.
[350] Jane made a video on her iPod of the applicant deleting James’s iPod video while the applicant was driving.
[351] This court wishes to make it crystal clear that the court does not in any way condone the applicant for driving while having the iPod in her hand and deleting the video.
[352] However, having said that, there is a logical explanation (which of course is not an excuse in law) to the applicant’s rationale for so doing.
[353] The video was taken by Jane when she was obviously in the rear passenger seat immediately behind her mother who was driving.
[354] The video portion shows the applicant driving down what appears to be a country road. While driving, she is switching her attention from the road to the iPod.
[355] The applicant has one hand on the steering wheel and with her other hand, she is holding the iPod scrolling and apparently deleting or attempting to delete a video from it.
[356] Quite remarkably, the applicant stays within her lane and at one point in time is passed by other vehicles without incident.
[357] The video portion of the video shows, in addition that when the vehicle comes to a stop, both James and John are out of their seatbelts and are physically accosting their mother attempting to retrieve the iPod from her.
[358] It is only when the vehicle starts to move again that James and John apparently returned to their seats in the vehicle. The court is not able to determine who is sitting where but one of them is sitting in the front passenger seat and the other appears to be sitting in the rear right seat of the vehicle.
[359] The video portion of the video is disturbing enough in that, as mentioned, in involves the applicant driving while attempting to delete videos and clearly being distracted by the children as well.
[360] The fact that the children find it appropriate to accost their mother physically while in a vehicle at a stop sign is deeply disturbing to this court.
[361] What is even more disturbing to this court is the audio portion of this video.
[362] The court is not able to ascertain which child is speaking at which time and therefore will make reference to comments made by the children without identifying which child is speaking.
[363] When the applicant begins deleting the video, the first comment is “what the hell are you doing?” The comments from the children then include:
• you f*king btch
• pull over you idiot
• f**k you
• fk you fk you
• you’re stupid
[364] The court notes with interest that some of the language used by the children in this exchange is identical to the language used by the respondent to the applicant, according to the applicant’s testimony.
[365] To say that the actions of the children are disturbing is a gross understatement.
[366] This court has had the opportunity to meet with these children. They presented as delightful, well-spoken and respectful children.
[367] To think that these children find it acceptable to behave in this manner towards anyone let alone their own mother is disconcerting.
[368] What is even more disturbing to this court is that, the respondent received this video from Jane and immediately takes it to the police with the intention, of course, of having the applicant charged which she was.
[369] The respondent did not find it the least bit repugnant that his children were treating anyone let alone their mother in this manner.
[370] So far as the court is aware, the respondent in no way disciplined the children for their behaviour nor, so far as this court is aware did he even reprimand them for their behaviour.
[371] Having met these children, and having heard evidence about them, this court highly doubts that the children would ever consider behaving in any manner remotely as disrespectful to this behaviour with anyone else.
[372] If these children were to have behaved in that manner towards anyone else, such as, in a school environment, or in a hockey or baseball environment, there would be serious consequences.
[373] If the children were to behave this way at school they might be suspended or even worse.
[374] If these children were to behave this way at a sporting event, the court is certain that they would be ejected from the game and probably suspended for their behaviour.
[375] Yet, the respondent, as father of these children (and an assistant coach of some of their sports teams), sees absolutely nothing wrong with this behaviour.
[376] In fact, based on his actions and inaction with respect to the same, it would appear to this court that he not only condones that behaviour but perhaps even encourages that behaviour with their mother.
[377] The applicant was charged with careless driving and using a handheld device while driving, both offenses under the Highway Traffic Act.
[378] She gave evidence and produced as an exhibit, the finding of guilt under the Provincial Offenses Act with respect to operating a vehicle while having a handheld device.
[379] The applicant readily acknowledged the inappropriateness of her actions both in-chief and on cross-examination.
[380] This court wishes to reiterate that nothing in this decision should be construed as condoning individuals driving while utilizing a handheld device in any manner.
The Second Video
[381] A second video was taken by Jane of her mother. However, this is really an audio as her mother suspected that she was recording this and therefore Jane could not surreptitiously take the video portion but only utilize her iPod to record the audio.
[382] The applicant’s evidence is that this video was apparently taken while she and Jane and one of the boys (likely James) were in the applicant’s vehicle while it was parked at the hockey arena.
[383] The applicant states to the children that she is aware that Jane has given the previous video to her father for the purposes of attempting to have the applicant charged as a result.
[384] The applicant indicates that there “will be consequences” if the applicant is charged.
[385] On intensive cross-examination, the respondent’s counsel attempted to make it out that the consequences to which the applicant was referring would be some sort of punishment of the children as a result.
[386] However, in listening to the video, it appears to the court that the consequences to which the applicant is referring is that if she loses her license, she will not be able to show up for the children and take them to their various sporting events. In fact, she says just that in the video. At no time does she say that there will be consequences in terms of punishment of the children.
[387] During her evidence in-chief and intense cross-examination, the applicant’s evidence on both occasions is totally consistent with what she said on that video.
[388] Once again, the comments of the children are very telling and, in particular, when one of them says “you’re not touching anything of mine” and “you spent 5 years lying to everyone.”
[389] The fact that the children believe that their mother has absolutely no authority to discipline them or control their behaviour in any manner speaks volumes.
[390] The fact that the respondent finds it acceptable that the children think this about their mother speaks even more loudly.
[391] If we follow this to its logical conclusion, parents would have zero control over their children’s behaviour even when the children’s behaviour was endangering themselves or others or totally and morally reprehensible.
[392] This court finds it appalling that the respondent, presumably to get what he wants, being some sort of revenge against the applicant, would find it appropriate to not discourage or perhaps even openly encourage his children to act in this manner.
Children “Running Away”
[393] As noted, the November 2015 order of Justice Graham resulted in continued police enforcement.
[394] In September 2015, the police had found that the order was not sufficiently clear as to whether they had the authority to enforce the order beyond the summer “access”.
[395] The November order of Justice Graham removed any doubt and obviously provided the police with that authority. Exhibit 4 is a Barrie Police report relating to an incident on November 13, 2015. The court notes that this is same day that counsel are in front of Justice Graham about reinstating the police enforcement.
[396] The children arrive at the applicant’s home being dropped off by their father. They state virtually immediately, that they intend to run away.
[397] They do so at 10:48 a.m. The applicant then gets in her car and sees the children at a nearby Plaza. By the time she parks, the children are gone.
[398] Thirteen minutes later, the applicant receives a call from the children indicating that they took a cab to their father’s home in Thornton. The respondent’s evidence is that the time required to drive directly from the applicant’s to the respondent’s residence is 11 minutes. Therefore, even taking into account the short distance between the applicant’s residence and the Plaza, there is virtually no delay in the children travelling to the respondent’s.
[399] At 11:29 a.m., the respondent phones the police to advise that he got home from a meeting and found the boys safe in his home. To his surprise the police note that he could be heard arguing with the applicant that if the boys aren’t comfortable with her home they don’t have to stay. He could also be heard stating that she cannot bring them to hockey with their equipment unless she pays money owing.
[400] Since at the time that this is taking place Justice Graham has not made his ruling, the applicant does not pursue the issue further with the police to insist that the children be returned to her that day.
[401] The respondent of course claims that he had nothing to do with this and that the children on their own initiative decided to run away. Further, on their own initiative they decided to hail a cab and, quite fortuitously, they managed to get a cab immediately because that is what would have been required to get them back to his home in the time frame set out in the police report.
[402] It stretches the imagination of anyone to believe that the respondent had nothing to do with this and was “surprised” to find the children at home.
[403] Even if the children took a cab, this court has absolutely no doubt that this was all prearranged and that the respondent was certainly aware of the intention prior to it taking place. This court is certainly not convinced that he was not an active participant in this charade.
2016 Mother’s Day “Assault” of John
[404] Mother’s Days have typically been a problem wherein the respondent has not been cooperative in ensuring that the children spend time with their mother on this special day. On Mother’s Day 2016, the children spend time with their mother, her mother and her mother’s husband.
[405] The children were less than enthusiastic about being with her according to the applicant’s evidence.
[406] The applicant’s evidence is that the children were, in her view, deliberately being slow in getting ready to return to their father’s. The applicant was concerned that if the children were not returned on time that the respondent would make a big issue about that.
[407] Therefore, the applicant, her mother and her mother’s husband were attempting to “move the children along”.
[408] John was outside playing basketball while the other two children were inside.
[409] According to the mother’s stepfather, he simply took the basketball away from John and directed him by putting his hand on his shoulder directing John towards his mother’s vehicle.
[410] According to the police occurrence report, John’s version of the events is that he was pushed by his grandfather and “almost fell down”.
[411] Even if John’s version of events is accepted, while it may be a technical assault, it certainly could be one that would be viewed as minimal at worst and one that any parent or grandparent would commit countless times in encouraging children to do that which they were required to do.
[412] The respondent, however, seizes on this event, calling the police and, as later reports indicate, insisting through the police and the Society that the applicant’s stepfather should be charged with assault.
[413] The applicant’s evidence, which she reported to the Society at the time as well, is that the respondent does not let it rest, but that he and his father engage in verbal attacks on her stepfather at the children’s sporting events shouting for all to hear that he is “an abuser”.
[414] What is telling is that although the police have attempted to maintain neutrality throughout their interaction with this family, it is obvious that the police are taking a different view of the situation, and the court notes that the police report indicates that the police officer believed that the children were influenced by their father.
C.T.
[415] C.T. testified on behalf of the applicant.
[416] She testified that she had been friends with the applicant for 35 years since she was ten years of age.
[417] Their friendship developed as a result of both families being members of the Beaver Valley ski club.
[418] Prior to the applicant and respondent’s separation, she had interaction with the respondent as part of the interaction of their two families. This included both skiing and other socialization.
[419] Prior to separation it is her evidence that both the applicant and the respondent appeared to have a good relationship with their children. She has had a great deal of opportunity to watch the applicant interact with her children and has never seen the applicant hit the children or yell at the children. She noted that when James would not listen to his mother, the applicant gave him a warning and a timeout.
[420] She testified that her mother and the applicant’s mother are best friends, as are she and the applicant and they communicate with one another on a regular basis. Her evidence is that prior to the applicant and respondent’s separation, their children and her children were like cousins and their children interacted well with her children and her family, including her mother.
[421] She further testified that prior to the separation, she and her children had a very good relationship with the applicant and respondent’s children and she felt she had a good relationship with the respondent.
[422] The children were all very athletic and prior to the separation they would ski regularly. Since the separation, the children have stopped skiing.
[423] She felt that prior to the separation the children appeared to have a good relationship with both the applicant and the respondent.
[424] She testified that since the separation she doesn’t see much of the children anymore, last seeing them in March 2016 at a party to celebrate T.’s (the applicant’s mother’s husband’s) birthday.
[425] Her evidence is that she saw James and Jane at Mohawk Raceway after the separation. The respondent’s parents had a race horse and everyone was there to see the horse run. Her evidence is that James was very excited to see her at the time but she was surprised and shaken when Jane, who had been very close to her daughter prior to the separation, would barely speak to her and only give one word answers. Her evidence is that at that time when she saw the respondent, he was not at all friendly to her.
[426] She indicated that in the fall of 2016, the applicant wanted to bring James and John over to visit in her home. Her evidence is she was looking out the bedroom window and saw James jump out of the applicant’s van.
[427] She further testified that when James was playing in a hockey tournament in Newmarket in December 2016 she went to see the game. John would peak around and wave to her and her children. She perceived that it was very awkward for him because he was with C.A. (the respondent’s girlfriend). When Ms. C.T. told the children that she would love to see them, Jane “shut down the conversation”.
[428] Ms. C.T. also testified that although she did not know who it was, she later realized that she had met the respondent’s girlfriend because they are in the same industry and the respondent’s girlfriend (C.A.) came by to Ms. C.T.’s booth at a tradeshow. However, Ms. C.A. did not introduce herself at that time.
[429] The court acknowledges that Ms. C.T. is a close and longtime friend of the applicant. The court therefore takes this into account when weighing her evidence. Undoubtedly, the court finds that Ms. C.T. would put “a more favourable spin” on her evidence than she might otherwise if it was evidence with respect to parties who were at arm’s length to her.
[430] This court however found her evidence quite credible.
[431] The court notes that the respondent to a large extent corroborates what C.T. testified. He confirmed that the families were close prior to the separation, skied together most weekends and that the children got along well with C.T. and her children.
[432] This court found that the most telling piece of her evidence was that she and her family had a very close relationship with the children prior to the separation and that subsequent to the separation, the children did not wish to have any relationship with her, her children or her family with whom they had been very close prior to the separation.
[433] The respondent’s counsel chose not to cross-examine Ms. C.T.. Further, the respondent did not offer any testimony or evidence that was contrary to that proffered by Ms. C.T..
[434] Therefore, this court has no reason to doubt the authenticity of her evidence and has received absolutely no evidence to indicate that there is any rationale for the children shunning a relationship with her or her children save and except alienation that may have occurred.
[435] Based on the relationship that Ms. C.T. had with the children, there is no logical rationale for James (and John) to have taken the extreme step of jumping out of the applicant’s vehicle when they realized the applicant was taking them to visit Ms. C.T. and her children.
[436] It is illogical for the children to act in the manner that they have with respect to Ms. C.T. and her children, save and except any prompting to do so that they may have received from the respondent or individuals under his control.
[437] The other significant piece of her evidence is that the children, particularly Jane, given her age, was quite an accomplished skier and ski racer prior to the separation and since the separation none of the children have continued with a sport that they once loved.
James Jumping from a Moving Vehicle at the T.’s Residence
[438] The court heard evidence of James jumping from the applicant’s van while it was moving at a time when she was approaching the residence of her friend C.T..
[439] James and John were with the applicant at the time and had been at a hockey tournament near where the applicant’s friend, C.T., resided.
[440] The uncontradicted evidence is that when the applicant was approaching the T. residence and James realized where they were going, he jumped from the moving van (the applicant testified she was driving at about 5 km per hour at the time). As a result of that James sustained some superficial scrapes to his body. John also jumped from the van.
[441] As a result of that incident, the applicant returned to the hockey rink instead of going to visit her friend.
[442] This court finds that there is absolutely no reason for James (or John) to have taken the extreme action of jumping from his mother’s van.
[443] There is not a single piece of evidence to indicate that the boys did not have a good relationship with the T.’s and their children.
[444] This, to the court, is simply another piece of the puzzle in which the children’s views of reality have been so distorted that they feel they must take this type of action to avoid going to visit someone who may be associated with the applicant and whose company they might otherwise enjoy.
Jane’s Interception of Applicant’s Text Messages
[445] As a result of the applicant purchasing a new iPhone on November 28, 2015, Jane began receiving the applicant’s iPhone text messages to Jane’s iPod.
[446] Jane first apparently became aware of this on December 5, 2015. She immediately sent the messages to a group email held by her father and his girlfriend.
[447] The court finds that, in of itself, is extremely telling.
[448] The content of those first messages where “threats” by the applicant to do harm to the respondent’s girlfriend.
[449] The evidence is that the respondent asked that Jane take a screenshot of those messages and forward it to him which she did at about 7:00 p.m. on December 5, 2015. The respondent’s evidence was that at that time, he and his girlfriend were out in a car with another couple.
[450] The children then came to stay with the respondent on December 7, 2015.
[451] Although she apparently tried to do so, Jane could not “sneak” the iPod out when leaving her mother’s home.
[452] The applicant’s evidence is that she did not allow Jane to take that iPod to her father’s as she was concerned that the respondent was utilizing that iPod to track the whereabouts of the children and the applicant.
[453] The respondent went to the police with those screenshots on December 8, 2015. The court finds that the timing of him doing so coincides with realizing that Jane was not able to sneak the iPod to him on December 7 when she came to be with him.
[454] The respondent is forthright that his intention of going to the police was to have the applicant charged with threatening.
[455] The police did not see it as a legitimate threat warranting charges. The evidence is that they consulted with the Crown and decided not to have the applicant charged as a result.
[456] There is ample evidence that the respondent was not pleased with this decision.
[457] As revealed in the Society records, the respondent contacts the Society (knowing that the police would have contacted them on any domestic related incident) and in mid-December tells the Society that he has the iPod (which of course he does not) and asks that they not alert the applicant to these messages at this time. His rationale is that the police are still investigating.
[458] When Jane returns to her mother’s on December 11, 2015, she once again has access to her iPod and therefore can monitor all of her mother’s text messages.
[459] The evidence of the respondent is that these text messages include other “threats” being the same type of threat but relayed to other persons. He readily admitted in his evidence that once he saw further messages he realized that there was no actual threat and that the applicant was simply “venting”. He admits that he did not have any fear that she was in fact going to carry out, or have others carry out, any of those threats.
[460] What he did, however, was have access through Jane to what he considered salacious messages between the applicant and her then boyfriend.
[461] The respondent and Jane continued to receive those messages until mid-January when, as a result of the applicant questioning Jane, the applicant learned what was going on and attempted to retrieve the iPod from the respondent.
[462] The respondent initially wanted to tender into evidence all of the messages which were disclosed in his disclosure brief, but at trial, and possibly as a result of in-chambers discussions that this court had with counsel, he sought to introduce the text messages up to and including December 25 when the iPod came into his possession.
[463] The court ruled that he could only introduce the messages of which he became aware at the point that Jane alerted him to this situation.
[464] The court found that to do otherwise, from a public-policy point of view would encourage parents in separated situations to utilize their children as spies to get evidence on the other parent.
[465] There is no suggestion that there was any criminal activity going on (the police and Crown had already decided that). In addition, there was no child protection issue during that time and therefore the court found that there was no public-policy rationale to admit that evidence.
[466] The respondent, in submissions on this point put forward what the court considered a rather curious argument. He alleged that Jane was “traumatized” by what she had seen being the messages between the applicant and her boyfriend. The court finds this very curious because the initial text messages had nothing to do with inappropriate “sexual” communications between the applicant and her then boyfriend but the respondent enlisted Jane to continue to “get evidence” and it was during this exercise that Jane became privy to these supposedly traumatizing messages.
[467] In his testimony, when cross-examined as to why he would not return the iPod to the applicant when she requested same, the respondent indicated that he would not do so because we “need to maintain it for evidence”.
[468] The fact that he finds it appropriate to have his thirteen-year-old daughter surreptitiously gather evidence against her mother is, unfortunately, not surprising to this court after having seen this trial and heard the respondent give evidence.
[469] The applicant testified on the voir dire that she learned, on January 16, 2016, that Jane had been receiving these messages.
[470] She further testified that all of the kids told her that daddy and the kids had been reading her texts. They said that “daddy was gathering evidence”.
[471] While the court does not have any independent evidence that John had been reading the texts, there is an indication that James saw at least some if not all of the texts. Of course, Jane had been reading all of the texts because she was relaying this information to her father and his girlfriend.
[472] On the subject of this iPod, this is another area where the respondent’s evidence is self-contradictory. He testified that he took the iPod and put it in the safe in his home on December 25, 2015 when he received it from Jane.
[473] Of course it did not stay there given that the respondent was continuing to view these texts as long as he could until it was discovered by the applicant.
[474] In addition to his request in December 2015 to the Society not to alert the applicant, the respondent did the same thing once again in January 2016. His alleged rationale was that the police were investigating.
[475] The applicant also testified that, prior to this incident the children had been trying to get her phone to read her messages. As a result, she was deleting messages in order to avoid the children having this opportunity.
Children’s Phone Calls with Father
[476] The subject order provides that while the parents are restricted as to the time that they can call the children, the children have no restrictions on the time that they can call either parent when with the other parent. The applicant’s evidence is the children rarely, if ever, call her while they are with their father and if they do so, it is typically only to demand something or to berate her over something.
[477] The applicant’s evidence is, however, that the children call their father multiple times each day.
[478] On the morning of school days, the applicant testifies that this is particularly problematic in that the children will spend time on multiple calls with their father and will not heed her requests to come down for breakfast.
[479] Her evidence is that it usually takes in excess of an hour to get the children to come from their rooms and that by the time they do so, the children are almost late for school and the applicant is almost late for work. The children therefore have no time to eat the breakfast that the applicant has prepared for them.
[480] The applicant’s evidence is this is most problematic with Jane but is also becoming a more frequent problem with James.
[481] The court finds it very telling that the applicant’s version of this situation is corroborated by what the children have told Alyssa Koenderink during the interviews with her and when she asks them to describe a typical day at mom’s when they are going to school. The phone calls are not only problematic in the morning but are also problematic in the evenings and nights. The applicant’s evidence is the children are on the phone with either the respondent or his girlfriend, sometimes past midnight, and it results in them being tired in the morning and exacerbates the scenario earlier described.
[482] The respondent denies that he is calling the children excessively.
[483] The court finds that it is also telling that even at the time of the custody access assessment, now some four years ago, this was a problem.
[484] Not only did the applicant identify this as a problem but so did Mr. Hurwitz. Mr. Hurwitz found it quite unusual that the respondent insisted that he needed to call the children three times a day.
[485] For this court, it is simply another piece of the puzzle in the respondent’s modus operandi to distance the children from their mother.
Recent Events
[486] The applicant testified that in the last year, the behaviour of James and John has become significantly worse. The boys are both more aggressive with her and have begun fighting with each other.
[487] She testified that at one point James gave her the finger when she tried to take away his iPod. She emailed his coach a picture of him doing so and her evidence (although hearsay) is that the coach supported her while the respondent intervened to try to apparently isolate her from the coach.
Jane’s “Arrest”
[488] As set out in another section, the damage by Jane to the hotel room occurred on the weekend of Super Bowl Sunday 2017. Later that evening, the applicant’s evidence is that Jane was fine with her and the two of them enjoyed watching the Super Bowl together.
[489] On February 6, 2017, being tab 26 of Exhibit 5, there is a police report relating to an incident at the respondent’s residence. This was the Monday immediately following Super Bowl Sunday.
[490] Rather than going home with their mother following school or going to the babysitter, the children took the bus to their father’s residence. The applicant called the police for enforcement of the time that she was to have with the children. There had been an incident that morning whereby the applicant attempted to take Jane’s cell phone away from her and the three children ganged up on her trying to get it back.
[491] This police report is also very elucidating to the court. Constable Pallister spoke to the children alone and noted that their expressions and terms were such that children of their age would not typically use. He concluded that “the children appeared that they have been coached in how to speak to the police in PC Pallister’s opinion.” (Exhibit 5 tab 26)
[492] When interviewing James, PC Pallister noted that he said that his mother was not entitled to take away his sister’s phone because it was “their property”. The constable also noted that he believed the children “are using their elaborating stories to try to gain their reason and not going back with their mother”.
[493] The officer also reminded the children that “it is not their place to worry about the custody order and that is between their parents.”
[494] When the children indicated they would not go with their mother voluntarily, the constable advised them that they would be leaving the residence or they would unfortunately be physically removed by the police.
[495] Of note, as well in the report, is that the constable parked his cruiser behind the complainant’s (being the applicant’s) vehicle so that the children could enter the vehicle safely. The court notes this in particular as being consistent with the applicant’s evidence with respect to it being unsafe for her to have to park on the side of an 80 km per hour road because the respondent has a no trespass order against her and therefore she cannot pull into his driveway.
[496] When the officer approached the driver’s side of the applicant’s vehicle to advise of the conversation he had with the children, he noted that the applicant was hunched over and appeared to be in pain holding her right eye. He then learned that Jane had just thrown her lunchbox in her mother’s face. He observed that the applicant’s right eye was red. In what PC Pallister noted to be a “snotty tone” Jane said that she did not mean to hit her mother and was simply throwing her lunchbox into the front seat. The constable did not accept Jane’s version of this story.
[497] Constable Pallister then told Jane to get out of the vehicle and that she was under arrest for assault. She was handcuffed and placed in the rear seat of his police cruiser.
[498] The constable then spoke to the applicant as to her wishes moving forward. They both agreed that charges in this case would not benefit anyone but hoped that this would be a lesson that this behaviour is no longer acceptable. Jane was released fourteen minutes later.
[499] The constable strongly cautioned Jane and her brothers. They all promised PC Pallister that this behaviour would stop from here on out.
[500] This court wishes to commend PC Pallister on his handling of this situation based on the information available to this court.
[501] The court notes that this is not the first time that the police have been made aware of an assault by one of the children on their mother. Tab 18 of Exhibit 5 is an OPP occurrence report from May 31, 2016. In that report it is noted that while the applicant was driving the children on Highway 400 James threw a water bottle at the back of his mother’s head. The court notes that the applicant acknowledged that she lost her temper which escalated the argument further. That particular police occurrence report was in relation to the children once again refusing to come for time with their mother.
[502] The court notes of that two different officers, PC Poirier and PC Zubrickas were both of the opinion when speaking with the children, that “the language that the children are using was not age appropriate and therefore it appeared that they were paraphrasing language that they’d heard from adults in that residence.” The officers further noted that “dad interrupted the children numerous times speaking of ongoing assault investigations against M.B..”
[503] The officers noted,
It became apparent quite quickly that C.V. was feeding into the children not wanting to resolve their issues with mom. C.V. appeared to be grateful and smug that the children wanted to remain in his care during M.B.’s time with the children. C.V. called M.B. and (sic) lunatic in front of the children and was cautioned by police.
Subsequently the children were told that the court order needs to be followed and they would need to return with mom for the night. The children were visibly upset at the news and began throwing tantrums. It was of the officer’s impression that during goodbyes of (sic) the door involved dramatics. It was evident that the children have learned to manipulate and play up situations in order to be in their favour. Once the (sic) driveway all tears stopped and the boys began talking baseball with the officers. All three children got into mom’s vehicle with no issues.
Baseball List and Jane’s Email
[504] The court heard evidence that Jane “flipped out” when she saw a list of parents on snap chat being the baseball parents and her mother was identified as “M.V.” and not “M.B.”.
[505] Jane’s reaction to this was “over the top”.
[506] She wrote to her mother in the most hurtful of terms to blame her mother for this and to indicate that she did not want the world knowing that her mother was in fact her mother.
[507] This court is satisfied that the applicant had absolutely nothing to do with identifying herself as “M.V.”. Indeed, after having heard fourteen days of this trial, the court believes that there is no way that the applicant would want to be identified or associated with the respondent by name, save and except that her children bear his name.
[508] That, however, is not the point. The point is why would Jane have such a visceral reaction to having her mother identified with her father’s surname?
[509] The court did not hear any expert evidence on this subject but to the court, Jane’s reaction seems consistent with the alienation which this court finds has in fact taken place.
Court’s Overall Impression of the Applicant
[510] The court found that the applicant was an extremely credible witness.
[511] The court finds that there was only one story that it found that the applicant embellished or exaggerated. The applicant put in her chart that the respondent had “burned up the children’s climber to the ground”. This was in reference to the fact that the respondent had apparently dismantled a climber that the children had in the backyard of the matrimonial home and had burned the parts. The applicant acknowledged that they had discussed taking this down in any event.
[512] The court noted that she accepted responsibility when appropriate such as responsibility for her behaviour recorded on Jane’s video.
[513] The court noted that she was under intense cross-examination from the respondent’s counsel and yet her story did not change.
[514] The court believes that the reason her story did not change is because the applicant was being truthful in her evidence.
[515] Instances in the applicant’s testimony were extremely telling to this court and “told the whole story”.
[516] The applicant did not become emotional very much throughout the trial. She became most emotional, however, when at the end of her reply evidence, she was asked about the email exchange between she and Jane relating to Jane accusing her of using her married rather than her maiden name. That, for this court, was a very genuine moment for the applicant. When the court questioned her about why she became emotional at that point in time given there had been other pieces of evidence that would have resulted in most mothers becoming extremely emotional, she testified that she did not really know why but perhaps it was a culmination of the stress and of all that had taken place over the last now almost six years. She reiterated on at least two occasions that when they separated the respondent said he would take the children from her and would leave her without money.
[517] She testified that she spent at least $200,000 in legal fees and costs of the assessment in getting to the first trial date when matters were settled at the eleventh hour.
[518] She further testified that it is conceivable that she will be having to declare bankruptcy at the end of this trial.
[519] The applicant made one statement that I believe sums up her frustration. She stated at the conclusion of her evidence “I can’t believe we are here. All I want is for the children to be happy at daddy’s house and my house with daily interaction”.
[520] The court believes that this statement by her is totally genuine and that it is exactly what she is asking for. The court hopes that at some point in time Jane, James and John will realize that their mother spent inordinate amounts of money and put up with incredible abuse from the respondent, his girlfriend, to a lesser extent probably from the respondent’s parents, particularly his father, and ultimately from her children. She put up with all of that abuse in the opinion of this court, because she loves her children and wants what is best for them including their right to have a “normal” relationship with their mother.
[521] These children are, indeed, fortunate to have a mother who is as dedicated and as selfless as the applicant is. The court believes that most mothers would have “thrown in the towel” before now and “let the respondent win” rather than subjecting themselves to that which the applicant has been subjected.
Some of Applicant’s Actions Exacerbated the Children’s Reaction
[522] This court finds that some of the applicant’s actions, although to this court quite understandable, did in fact exacerbate the children’s reaction to her.
[523] An example is the fact that the applicant insisted on doing the exchange as per the order even when logic would dictate otherwise.
[524] The court heard evidence about the applicant driving the children home from school at a time when Jane was texting her father and the respondent was following the applicant. When they came to a stop sign at the corner of Highway 27, the children jumped out of the applicant’s van and ran two or three car lengths back to the respondent’s vehicle and got in.
[525] The court finds that the applicant could have avoided the situation by simply stopping at the respondent’s residence (which she passed, or could have passed, on her way home) and allow the children to then go to their father’s.
[526] Another example is the applicant insisting on the children going to a babysitter or a friend’s house rather than taking the bus to the respondent’s house after school. This occurs, for example, when the children were being exchanged mid-week and would be with the respondent from 4:30 p.m. to 7:30 p.m. on one week night during the “applicants week”. This, however, is a less “flagrant” example given the problems that occur when the applicant attempts to retrieve the children from the respondent’s residence.
[527] The applicant could have, as well, been, in the court’s view, more flexible when it came to the travel consent. If the applicant had given her consent prior to the respondent getting his formal itinerary to her, the worst case scenario for the applicant would be that she never received his actual itinerary and therefore may have not had contact information for the children. However, given the children’s actions, she had limited contact with them in any case when they were away with the respondent.
[528] For tournaments, the applicant appears to take an inflexible position insisting that if it was “her time” that she or her designate, drive the children to tournaments rather than allowing them to travel with the respondent.
[529] Having said all of that, the court finds that it is understandable that the applicant would not want to be accommodating in any way to the respondent given the way that the respondent has treated the applicant.
[530] However, to some extent the applicant’s inflexibility “played into the respondent’s hand” to be utilized by him as additional ammunition to distance the children from their mother.
Jane’s Grade 8 Graduation
[531] Jane is completing her Grade 8 year and there is a graduation ceremony at her school on June 27, 2017.
[532] At the conclusion of this trial (before releasing this decision) the court made a specific ruling with respect to that day. In that ruling, the court attempted to ensure that this would be a stress-free day for Jane and that there would be no conflict between the applicant, the respondent, the respondent’s girlfriend, or other family members on that day.
[533] This court is not naïve and realizes that, notwithstanding its best efforts to “nail down” every detail, where parties have the modus operandi to thwart the court’s orders, undoubtedly there will be a way in which they will be able to do so.
[534] However, the court wishes to note that through the counsellor Wendy Hunter, the parties were “negotiating” this day. The only reason there is any negotiations is because the day falls on a time when Jane would otherwise be in her mother’s care.
[535] Jane wanted a new dress for the graduation and the applicant testified that she proposed that she would take Jane dress shopping and on another day the respondent’s girlfriend could take Jane dress shopping. Jane could then choose which dress she wanted to have.
[536] What happened next of course was that the respondent’s girlfriend took Jane shopping and purchased a dress for her without allowing any input from the applicant. This is just another one of those puzzle pieces with respect to the completed picture of alienation.
HOWARD HURWITZ’S SECTION 30 CUSTODY ASSESSMENT
[537] Mr. Hurwitz, based on a January 2013 consent order of the court, was jointly retained to prepare a section 30 custody and access assessment.
[538] A 102 page section 30 custody report (“report”) was filed with the court as Exhibit 20.
[539] In addition, Mr. Hurwitz was called as a witness by the applicant and gave evidence, not only with respect to his custody access report but, as has been earlier noted on consent as an expert on parental alienation and in particular with reference to a book that he had co-authored.
[540] The court will comment subsequently on the evidence that Mr. Hurwitz gave so far as it relates to the assessment.
[541] The court thoroughly read the assessment and in this next section will describe the portions of the report that this court found most relevant.
[542] The court is well aware that of course the assessment is not current and this court will comment on that issue subsequently.
[543] This court found that the most striking “theme” of the report is the number of times that Mr. Hurwitz, (and Dr. Olga Henderson, a psychologist who prepared a psychological report of each of the parties at Mr. Hurwitz’s request and as part of the assessment process) made reference to the need for the respondent to “be in control”.
[544] The report was filed with the court November 14, 2013, is dated November 7, 2013 and references a disclosure meeting between the parties and counsel that took place August 15, 2013.
[545] Although at one point the respondent tried to either withdraw from, or as his counsel characterized it, “put the assessment on hold”, the assessment was completed.
[546] Further, as detailed subsequently, although the respondent attempted to discredit Mr. Hurwitz and his assessment report, this court finds that there is no basis for so doing and that this court is satisfied that the assessment was conducted appropriately, without bias and by giving each party an opportunity to present whatever evidence and the collateral input they wished to have considered prior to the assessment being completed.
[547] The court will now highlight provisions from various sections of the report.
Marital History
[548] The report indicates that the respondent had stated that the separation was very difficult for him because he did not expect the marriage to end. The respondent emphasized that not being able to work out problems was a significant issue for him as, being a firefighter he was trained to help others but couldn’t help himself and his wife.
[549] This court also finds it significant that the report notes that the respondent begged her to stay and he felt that she had betrayed him and ended their partnership. He also felt that her motivation to separate “was about her desire to benefit financially”.
[550] Although the respondent denies having said this, Mr. Hurwitz also noted that “at around this time he realized that he was in a war with her and that he “felt really hurt and angry. Furthermore, he admits that he was engaged in ‘mud slinging’ and said he was combative with her because he felt that she was baiting him.”
[551] Based on his report, it appears that Mr. Hurwitz does not find anything remarkable in either party’s upbringing that was salient to the issues of the report. This court as well does not find anything remarkable in either party’s childhood or premarital situations.
Custody and Access Issues
[552] This court finds that the applicant has been consistent throughout the process and that what she stated to Mr. Hurwitz now more than four years ago, is similar to what she stated to this court when asked what she would like to see if the court had a “proverbial magic wand”.
[553] According to Mr. Hurwitz’s report:
M.B. stated that she wants the children to spend time with both parents and she wants to jointly make decisions with C.V. In addition she wants to experience a more effective communication arrangement with him. She also wants the children to go freely between both homes and not feel stressed by the transitions. (Page 11)
[554] This court also finds it very relevant that even at the time, Mr. Hurwitz’s report noted that “she also believes that because it was her decision to separate, that he is being vengeful towards her, frequently going out of his way to make things difficult.”
[555] The court finds it interesting as well that she noted that there was an issue with respect to Mother’s Day. The court finds this interesting because in 2015 Justice Graham noted that there was another issue with respect to Mother’s Day. Once again, an ongoing theme.
[556] This court also notes that even at that time, there was another ongoing theme. The report notes that based on John’s insistence (he was only four years old at the time) the applicant introduced herself to the respondent’s girlfriend, C.A.. At a time when John wanted to hug her, the applicant noted that,
C.V. called her foul names while this occurred and in front of the children. M.B. has further concerns that the children have made comments indicating that C.V. has talked to them about the schedule and is coaching them to pressure her to alter it, commensurate with what C.V. wants. (Page 12)
[557] Another ongoing theme of which was noted over four years ago was that in the report:
M.B. stated that she has further concerns because C.V. calls the children repeatedly during the days when she is residing with them. Specifically, he calls them in the morning prior to them departing for school and after school and in the evenings. She finds this particularly disruptive to their routine because he is insistent that the children talk to him for long periods of time and this causes them to be late for school. Also, she believes that the children do not always want to talk on the phone but feel pressured to do so multiple times in a day. (Page 12)
[558] In the very next paragraph the report notes that,
In addition, M.B. is concerned by the comments the children make which indicate that C.V. is undermining her parenting and talking negatively to them about her. M.B. cited numerous additional examples where C.V. has acted in a vengeful way to her which has also created stress for the children. (Page 12)
[559] The court finds this extremely probative because these are themes that continue to the present. The respondent shows total disrespect for the applicant in front of the children, calling her vile names and using gestures such as “giving her the finger”. In addition, when the children are with their mother, he is insistent on calling the children in the morning and the multiple times per day. However, the morning is particularly problematic given that he would insist on speaking to them for long periods of time which resulted in them being late for school.
[560] Another theme that was noted at the time of the assessment and which continues is that the respondent talks negatively about the applicant to the children.
[561] This court finds that what was reported by the respondent to Mr. Hurwitz was also very telling.
[562] The report notes that in addition to indicating the respondent wanted a 50/50 parenting schedule and wanting to remain in the matrimonial home, he stated that “the parental conflict is having an impact on the children. In particular, Jane is having yelling matches with her mother. He blames M.B. for these altercations.” The theme has continued pursuant to which the respondent’s evidence indicates that he does not believe that he is, in any way, responsible for any of the problems but still takes the position that the applicant is entirely responsible for the problems with her relationship with the children.
[563] At the time, the report notes that the respondent “is also concerned that he is being denied telephone contact with the children. He said that he calls the children 3 times a day (morning, after school and evenings) because he wants to check in on them.… He also states that he does not trust that M.B. is providing adequate care.” (Pages 13 and 14)
[564] This, of course, is another common theme and is repeated by the respondent even four years later.
[565] The report notes that the respondent “said when the separation happened he was upset and angry. He believed that she had an emotional head start. He believed that she was having an affair, yet she denied this. He admitted that some of his communications with her “were not his final (sic) hour.””
[566] At page 14 of the report, Mr. Hurwitz noted the respondent indicated that “at the urging of his lawyer, he went to see a psychologist. He had 3 sessions with Dr. Melanie Telgdi, a psychologist, who felt that he did not need to continue. He found those sessions helpful.”
[567] The court notes that the only reason that the respondent went for counselling was because his lawyer had urged him to do so. Further, he did not see a need to continue but felt the sessions had been helpful. One would expect, of course, that if that were the case, his behaviour would have changed after that time but in fact, the evidence is that instead of improving, his behaviour actually declined thereafter.
[568] The respondent reported to the assessor at the time that he believed that his wife had some significant mental health concerns. This references a very unfortunate accident in which she was involved that resulted in the death of an elderly gentleman who for unknown reasons was driving his motorized scooter at a slow speed on a rural road in the dark while the applicant was driving with the children at a speed of approximately 80 km/h. The result was that when she came over the crest of a hill, she had no opportunity to avoid the gentleman on the scooter and unfortunately he perished. To the respondent’s credit, when he was testifying about this accident at the trial, he indicated that he believed that she was in no way at fault for that accident. This court found that this was one of the very few times when the respondent conveyed any positive message about the applicant.
[569] By way of an example of her alleged “mental health concerns”, the assessor mentions he alleges that on her parenting day, the applicant prevented him from having access at a time when there was a teacher’s day of protest. When reading that portion of the report, it behooves this court to understand how the actions of the applicant, even if reported accurately by the respondent, could result in any one believing that this was indicia of a mental health issue.
[570] The report notes that the respondent
He also believes that the children are fearful of their mother”. In particular, there was one situation where James called him because he was fearful of her. C.V. also stated that ‘he wants to be with the children every single day’ and he doesn’t want the children to be with their mother. (Page 14)
[571] There are two main issues that the court notes of concern with respect to that statement. Firstly, the respondent reports that he believes that the children are fearful of their mother. There was no logical rationale given to support that statement. Secondly, one would anticipate that any intelligent separating parent would realize that once a separation takes place, it is unrealistic to expect children to be with them “every single day”.
[572] The court notes as well that in his evidence, Mr. Hurwitz made reference to the fact that he found this statement by the respondent quite striking as well. Again, the court finds that this is an indicia of what was to come.
[573] Even at that time, the respondent felt that he did not want the children to be with their mother. This is clearly a theme that has motivated him, in the opinion of this court, from the moment that the applicant advised him that she wished a separation.
[574] This court notes that even at that time, the assessor noted that the level of parental conflict increased as the separation increased. Reference was made to the police report in March 2012 upon which the court will comment.
[575] The responses to the allegations made by the other parent are telling as well. Relating to the excessive telephone calling to the children, the respondent indicates that “he just wants to check in on them” and “so his calls ensure that they are safe”. This court notes that there was no objective rationale for the respondent at that time or presently, to have any concern about the manner in which the applicant is treating the children. As noted elsewhere in this decision, this court finds that any behaviour by the applicant, which could be construed as inappropriate, is exclusively related to a reaction by her to actions taken by the children which actions are, in the opinion of this court, solely as the result of the respondent’s actions.
[576] In response to the applicant’s concern that the respondent was tracking her and the children’s whereabouts, the respondent’s response is somewhat contradictory. On the one hand, he “denied this” and stated that he “doesn’t care where she goes”. On the other hand, on several occasions, he admitted to “wanting to locate the children and not her”, which he believes to be a safety issue. He said he “was able to locate the children by their cell phone devices”.
[577] This was an admission by the respondent that the court finds is consistent with the evidence given by the applicant at trial; that she knew that the respondent was tracking her movements through her cell phone. The court finds that this is inconsistent with the respondent’s “explanations” of how he knew the applicant’s whereabouts on two separate occasions at about the time of the separation. He specifically denied under oath at trial that he was tracking her whereabouts through her cell phone. Undoubtedly, he had forgotten what he said during the assessment, or did not expect this court would take the time to read all of the exhibits.
[578] The report notes that in reference to the applicant’s complaint that the respondent would not allow her to attend activities, such as ladies ski day, and objected to her taking a day off work to do so, he stated to Mr. Hurwitz that he frowned on her doing so because she would use the day to go skiing instead of being with the children and him. On this point, he was consistent in his evidence at trial and said that his main objection to her taking the day off work was essentially that she should not be in public at that time as there was a risk of her getting caught (the courts words not his) and through his union work, he knew that this was something that could have ramifications with her employment.
[579] The next statement noted in the report is something that he was also consistent with at trial. The report notes that “regarding the concern that he talks negatively about her to the children, he denied this and was adamant that he would never do this.” As mentioned, this court notes that he was consistent with his similar denial at trial. The court does, however, find that, while it is possible that the respondent actually believes that statement and therefore believed that he was telling the truth when he said it, given all of the evidence, this court finds that it is absolutely beyond belief that the respondent expects the court to believe that this statement is true.
Emails and Chart
[580] The court heard much evidence about the plethora of emails exchanged by the parties and the issues raised by the respondent that Mr. Hurwitz had reviewed far more material from the applicant than from the respondent. Another of the respondent’s complaints was that he alleged Mr. Hurwitz suggested that they have five or six issues identified but the applicant provided Mr. Hurwitz with far in excess of that while the respondent limited himself to the five or six issues as he believed he was supposed to.
[581] Mr. Hurwitz was “thoroughly” cross-examined by the respondent’s counsel on this point. The court makes the following findings relating to the same. Firstly, the court has absolutely no doubt that Mr. Hurwitz was being forthright in his evidence and that, as an experienced assessor, he was following the protocol that he utilizes in other assessments. Secondly, as Mr. Hurwitz indicated, it would be totally inappropriate for an assessor to try to limit the number of issues that parties raise (save and except frivolous issues). The court therefore finds that Mr. Hurwitz did not do so in this case. In all likelihood, the respondent’s reference to five or six “issues” was mistakenly, as was postulated by Mr. Hurwitz, a reference to five or six collaterals.
[582] This court would be surprised if the applicant did not in fact provide Mr. Hurwitz with far more emails and other “evidence” than did the respondent. In fact, it was as a result of the volume of the material provided by the applicant that Mr. Hurwitz testified that he suggested she put it into a chart. The court finds that this was an efficient methodology utilized by Mr. Hurwitz and, contrary to the respondent’s allegations that this would result in increased costs, in fact probably resulted in reduced costs to some extent. The court accepts Mr. Hurwitz’s evidence that rather than he reviewing all of those voluminous emails, he simply reviewed the chart and additional emails that may have been provided by the applicant subsequent thereto. Further, the court finds that the respondent was given a fair opportunity to respond to all of the 76 or more issues raised by the applicant. The court accepts Mr. Hurwitz’s evidence that he had the applicant prepare a chart which left a column blank for the respondent to provide his response to her allegations.
[583] Further, with respect to the respondent’s claim that he did not have time to respond to the allegations raised by the applicant, the court finds, that Mr. Hurwitz’s explanation was very reasonable and the court has no reason to doubt it. Mr. Hurwitz indicated that while some material may have been provided to the applicant shortly before a scheduled disclosure meeting, that disclosure meeting was in fact delayed (as a result of the respondent) for some months and that the respondent had a number of months to provide responses to any of the applicant’s allegations.
[584] Given the dynamics of this separation and the evidence that this court has heard, it is not surprising to this court that the applicant had far more material that she wished to present to Mr. Hurwitz than did the respondent. The problematic actions of the respondent and, for the most part, the lack of problematic actions by the applicant (combined with the applicant’s propensity to make notes and logs) would dictate that the applicant would have far more “evidence” that she wished to present to the assessor than would the respondent.
[585] The respondent alleged that Mr. Hurwitz was somehow biased or not neutral or not fair to him. This court finds that there is no probative evidence to substantiate any of those allegations.
[586] There are a number of examples in the report to indicate that Mr. Hurwitz did not accept all of the allegations made by the applicant. In fact, in this decision, it will be noted that this court did not accept all of the allegations made by the applicant.
[587] The bigger issue of course is the totality of the evidence of allegations and, based on the totality, Mr. Hurwitz came to a conclusion. This court will comment further on the same.
[588] Mr. Hurwitz’s analysis of these emails (and the chart) is revealing and this court finds is indicia of what was to come.
[589] On page 19 of his report, he notes that,
“parenting is viewed as competition by both parents”
“C.V.’s tone in his emails is insulting and he is frequently critical of M.B..”
“C.V. using ‘his days’…instead of wanting to include her…in this important appointment”
“C.V. often uses the principle of ‘his time/days’ as reasons to exclude her from participating in children’s activities #47”
[590] It seems to the court that neither parent took heed to the comment made by Mr. Hurwitz on page 19 of his report “it should be noted that time doesn’t belong to a particular parent because it’s the children’s time.”
[591] Mr. Hurwitz notes the issue of Mother’s Day 2012 and the respondent refusing to give time on this day to the applicant because it was “his weekend”.
[592] The court finds that any parent who looked at the best interests of the children rather than their own selfish interests, would not need a court order or any other explanation to know that Mother’s Day is a time designed to honour mothers, not a time for children to spend with fathers. As has been said by many, one cannot legislate, or in this case order, common sense.
Observation Visits With Each Parent
[593] The court finds that Mr. Hurwitz’s notes on these visits are quite telling as well. The “take away” from those observation visits was that each parent on their own is quite capable of taking care of the children and that there really were no issues found by Mr. Hurwitz based on those observation visits.
Interviews With Children
[594] This court found Mr. Hurwitz’s observations and conclusions relating to the children’s interviews to be very telling.
Jane
[595] Given the ages of the children at the time of the separation and at the time of the assessment, it is not surprising that there were more comments by Mr. Hurwitz with respect to Jane than the other two children.
[596] It is sad to note that even at that time Jane commented “it’s hard and sad” and that she and the boys would leave to get away from the fighting.
[597] Her response to how the fighting made her feel is very telling:
“We stop thinking about it.”
“I’m afraid about what may happen. Sometimes I won’t see one parent for the same amount of time as the other or they would fight for a long time.”
“I worry about not being able to see them as much.”
“I worry it won’t be fair.”
“Sometimes, they would each want to talk about the situation and help us understand why there is a problem.”
“Sometimes they give reasons for the fighting, especially my dad’s mom who would tell me things.”
“My dad was in the house and he bought the gum and wrote a note saying gum was taken; mom wrote back that the gum was not taken by her.”
When this court read the assessment report, it found this particular item to be extremely illustrative. The court notes that Mr. Hurwitz, in his evidence, also highlighted (low lighted?) this event which to this court, and presumably to Mr. Hurwitz as well, demonstrated how ludicrous the situation is and how in this case the father did not have any apparent concern for how such childish behaviour would affect the children.
Another very elucidating revelation was that Jane told Mr. Hurwitz that “she can see the content of the text message and the issue in dispute that her parents are communicating about.”
“I’m afraid to talk to my mom about my dad and I’m afraid to talk to my dad about my mom.”
[598] When discussing why the relationship deteriorated Jane, who at that time was just 10 years of age, commented “I don’t think they needed to be that way.” This is another extremely revealing statement made by the child and is hugely concerning to the court as it shows that the child is being more adult than the adults.
[599] Another very disturbing comment made by Jane at that time was “sometimes my brothers want to sleep with me because they are scared; I tell them it will be ok. I don’t tell them all that’s going on because it will make them feel bad.” The court finds this disturbing because a ten year old child is feeling that she has to be taking over a parental-type role for her brothers who were then six and eight years of age.
[600] Other telling comments made by Jane as noted by Mr. Hurwitz, are as follows:
“With respect to her mother she said that she has a good relationship but doesn’t like that she doesn’t allow telephone calls after 7:45 am each morning.” (The court questions why this would be of a concern it to her and even though she does not indicate who the telephone calls are from, this court finds it is very reasonable to assume that the phone calls are from her father.)
“She likes that her dad says that she can call him any time.”
She also stated that sometimes her mom raises her voice a lot and “grounds” them more, and is stricter than her father.”
“With respect to her relationship with her father, she said that she gets along well with him all the time and that it’s a “‘perfect’ relationship”. (This court finds this a precursor to what was to come.)
“She also likes C.A. a lot and can confide in her about alot (sic) of her stresses and worries.”
“She also likes that when her dad takes her to C.A.’s home because they get to stay up late and watch movies.”
“She further added “my dad is always there for us all the time. If we needed him for something he would be there…”
“Does your dad do anything that bothers you?” She said “he’s texting a lot on his phone.”
[601] Mr. Hurwitz notes that “she has a stronger alignment with her father and tends to idealize this relationship.”
[602] He further notes that “it also appears that C.V.’s parents may be talking negatively to the children about M.B. and her parents, and this is distressing for Jane.”
[603] In the second interview, Mr. Hurwitz noted that:
“She wants my dad to keep the house because he built it and his parents are across the street.”
“It would be nice if my dad could be there instead of a babysitter. My dad thinks it’s a good idea that he be there instead of a babysitter.” (This clearly indicates to the court that the respondent, even at that time, was discussing “adult issues” such as babysitters with the children.)
“She was also asked whether she wants to spend more, less or the same amount of time with each parent. She responded by saying she wants an equal amount of time with each.”
[604] Mr. Hurwitz’s observations regarding the second interview with Jane are very revealing. He stated:
“She stated that she likes spending long periods of time with her dad but this assessor is unsure of whether this view is her view or is being coached by her father since he has made similar comments to this writer about this same issue with the same phrasing as Jane presented. Her explanation at about why her father should stay in the house also raises further concern that C.V. is sharing his views around why he should stay in the home to Jane. Jane also likes t time she spends with her mom too.”
CHILDREN’S AID SOCIETY
[605] The family has been involved with the Simcoe Muskoka Children’s Aid Society (“the Society”) virtually since the time of the separation.
[606] The evidence considered by this court relating to the Society came in the following forms. There was an affidavit sworn by Doug Cochrane being Exhibit 97. Mr. Cochrane was also cross-examined by the respondent’s counsel.
[607] In addition, the court received as Exhibit 28 to which extensive reference was made during direct evidence and cross-examination of the parties and of Mr. Cochrane being the “contact logs” provided by the Society.
[608] Some of the information from the Society relates to information they received from the applicant or, in some cases, the respondent. Other contact by the Society involved interviewing the parties and in some cases interviewing the children. The court has read in its entirety, Exhibit 28.
[609] The court finds it appropriate to “highlight” some references in those logs. For ease of reference, the court will refer to the handwritten numbers on the pages when doing so.
[610] Page 2 is a log relating to November 13, 2015. This is in reference to a time when the children “ran away” from the applicant’s residence to arrive shortly thereafter at the respondent’s residence. They claimed that they took a cab to get to their dad’s house but arrived, according to the applicant, approximately 13 minutes after she last saw the children at a Starbucks near her home. In addition, in this log there is a notation that Jane had apparently said the night before that if she “had to go see mom she would kill herself”. In response, the applicant emailed the respondent immediately and he responded that he felt Jane was just joking.
[611] To put that log in context, the court also considered page 5 which relates to the father “appealing” the police enforcement clause. This was dealt with extensively when the court considered that issue elsewhere in this decision.
[612] At page 14, referencing November 20, 2015, the Society visited with the respondent, his girlfriend and the children. This interview relates to the children “running away” from their mother’s home and the issue of police enforcement. The children confirmed that they are sometimes up until midnight during the week. Jane told the Society that:
“She wants everyone to be happy and things to be fair.”
“On mom’s cell phone there are things about dad.”
“Her mom is trying to keep her away from her dad.”
“It would help if her mom paid for sports.”
“Her mom will not have a conversation with her dad and tells him to send an email.”
“Her dad is not talking in front of them about their mom.”
“Her dad (and C.A. – redacted) encourage them to have visits with their mom.”
“She has no plans to harm herself.”
“Mom did not seem to care about what she wants.”
“Mom is not flexible.”
“Mom sends them to a babysitter instead of letting go to their dad’s.”
“Everything is good at home with dad (and C.A. redacted), the rules are fair, no concern about discipline, losing privileges, no concerns at dad’s home.”
“She looks up information about court.”
“She would like her mother to trust her.”
“Concerned that worker would discuss that she had password for mom’s phone.”
[613] The court notes that at about the same time that she is saying she wants her mother to trust her, Jane is surreptitiously receiving her mother’s text messages, and in collaboration with the respondent and his girlfriend, is communicating those messages to her father. Based on the respondent’s evidence, she is so doing so that he can “gather evidence” against the mother.
[614] In this contact log, there are also notes relating to a private interview that the worker, Estelle Levangie, had with James (10).
[615] The court notes that James also relayed many of the same concerns that were relayed by Jane:
“Mom does not pay for sports.”
“His sister told him and he’s catching on.”
“He said that they (he and Jane?) found out mom’s phone password and they found stuff about dad on the phone.”
“(redacted – C.A.?) and dad encourage them to go to visits with their mom.”
“Dad does not talk in front of them about mom.”
“Mom does not provide clothes for their sports.”
“His parents have gone to court many times.”
“He hates going to mom’s and nothing would make it better.”
“Nothing makes them upset at dad’s.”
“No concerns at dad’s they all get along well. He said that it is organized at dad’s.”
“At mom’s they go out to eat a lot and this is not healthy.”
“When asked if anything to add he said that he would support what his sister told worker as she is good with explaining things.”
[616] At the same time, John age eight was privately interviewed. Once again, there is a similarity with what he says compared to the other two children, namely:
“He wants to live at dads.” (although he does mention that he would visit with mom and that he is okay at mom’s sometimes)
“There were big fights when mom tried to grab the phone and they were trying to take it back.”
“On Friday they ran away from mom’s. It was all their idea. They called a cab.”
“Mom does not pay for sports.”
“Dad does not talk about mom.”
“Dad (and redacted – C.A.?) Encourage them to have visits with mom.”
[617] Ms. Levangie then spoke to the respondent (and redacted – C.A.?).
[618] The respondent and his girlfriend indicated the following:
• They expressed concern that Jane will run away and not to their house to not have access with mom.
• They expressed concerns that M.B. lets the children go when they run away and does not follow them. They question why M.B. did not call them to inquire where the children were when they ran away.
• C.V. said that M.B. may be fighting to keep access with the children to continue receiving child support
[619] Ms. Levangie notes that she discussed the role of the parent in supporting and encouraging children to have a relationship and contact with the other parent.
[620] This court notes that the “concerns” raised by the respondent at that time, is virtually contemporaneous with the time that he is surreptitiously utilizing his thirteen year old daughter to “gain evidence” against her mother. This is disingenuous to the extreme.
[621] Page 21 of the contact log is referencing November 24, 2015. Ms. Levangie had a telephone call from an OPP constable who noted that the boys appeared to be wanting to see their mother but not Jane. The officer noted that she had never met the father but the father was saying personal information about the mother in front of the other officer.
[622] Further, Ms. Levangie noted that the officer said that the father, in the presence of Jane, was talking about how his lawyer was in court at the time trying to reverse the police enforcement order.
[623] The police officer relayed that Jane did not want to see her mother because her mother did not pay for hockey and when the officer questioned how she knew, the father “jumped in” and said not to ask the children any questions.
[624] On page 23 of the log are notes relating to a face-to-face interview with the applicant by Ms. Levangie on November 26, 2015. Among other things, that she relayed the following:
“C.V.’s (redacted) yelled at her (redacted) (based on the evidence given at trial, it is presumed that it was C.V.’s father who yelled at her stepfather) “they are a bunch of “cheap c**ts””
“After they speak with their dad they will tell her they hate her.”
“Children swear at her.”
“James has told her that they are doing this on purpose so that she takes them to their dad’s.”
“During the week when with her, Jane is texting dad play by play. Jane will be the one to talk to the boys about calling dad.”
“Twice Jane grabbed her by the throat and pushed her (out) of her room.”
“Wednesday this week they had a great night. Last Thursday night Jane called her an a**hole.”
“Children want to look in her phone to find out if she has a boyfriend.”
(in reference to police enforcement) “Judge made decision based on lies by mom.”
“All children said that assessor was a bad, horrible person. Past CAS worker not good. Feels this is all coming from Chris.”
[625] The court also notes that on that occasion, one of the purposes for Ms. Levangie to be there was to have a home visit with the mother and the children but that the children would not come down and Ms. Levangie could hear Jane yell at her mother to get out of her room. Ms. Levangie noted that when the applicant went upstairs to try to help James with his homework he said “go away”.
[626] At page 26 there is a notation of a telephone call from the applicant on December 7, 2015. It notes that the mother reports the children were on the phone Sunday night after 11:00 p.m. with their father and when the applicant tried to deal with the situation and have them end the call James slapped her in the face and grabbed her hair trying to pull out her hair.
[627] At page 30, there is a telephone call to the respondent by the Society. The respondent reported that the applicant’s texts to her (redacted boyfriend?) were landing on Jane’s iPod some text messages allegedly threatening about murdering (redacted C.A.?) They reported this to the police. He believes the boys are also aware to some extent as Jane showed them some texts. He reported there was a wrestling match between Jane and the applicant.
[628] The respondent also reported that in these texts there were inappropriate items e.g. sexual and derogatory items about their father. The family services worker notes that she is not concerned about threats by the applicant.
[629] At page 35 of the log, there is a notation on December 16, 2015 that the Crown has decided not to press charges based on the alleged threats by the applicant.
[630] On December 16, 2015 at page 38 of the log, the respondent reports that “they have removed the iPad and the children no longer have access to the texts. He is requesting that worker hold off contacting the mother to address children having access to her text messages.”
[631] This particular statement by the respondent to the Society is deeply disturbing to this court. The respondent’s evidence at trial was that he first learned of Jane having received these messages from her mother’s iPhone on Jane’s iPad on December 5, 2015. He asks Jane to take a picture of the screenshot so that he can then contact the police regarding these “threats”.
[632] The respondent’s evidence at trial is that Jane was unable to sneak out the iPod when she comes to his home next on December 7. When Jane returns to her mother’s home on December 11 she is continuing to receive her mother’s messages on her iPod. The respondent’s further evidence is that when Jane next returns to his care on Christmas day (December 25) she was successful in sneaking the iPod from her mother’s home and the iPod comes into his possession at that time and remains in his possession thereafter until the present time.
[633] What is incredibly disturbing to this court is that the respondent, at the same time that he is encouraging, and indeed engaging, his daughter actively in a surreptitious spying on her mother through to the receipt of these messages on the iPod, all the while he is asking the Society not to alert the applicant. To make matters worse, he is misrepresenting to the Society that the children no longer have access to these texts.
[634] The respondent then has the audacity in his counsel’s submission to argue that his daughter is somehow traumatized by the “sexting” (his words) that she sees between her mother and the mother’s boyfriend.
[635] The children have on a number of occasions accused the mother of “lying”. This is something that was also alleged by the respondent and by his family members during the assessment.
[636] This is the same person, who is not only lying to the Society (by falsely telling the Society the children no longer have access to the iPod) but is, at the same time, deliberately exposing his thirteen year old daughter to these alleged sexting messages so that he can get evidence against the applicant.
[637] Since the respondent is a firefighter, I will use a firefighting analogy to describe what the court sees this to be. The respondent is so fixated on “bringing down” the applicant that it is an analogous to him being an arsonist setting fire to a house in which the applicant is residing in an effort to “take out” the applicant but at the same time being totally oblivious or not caring that his own children are trapped in that house as well.
[638] This court finds it beyond the pale that the respondent would find it acceptable to treat his children, let alone his children’s mother, in this manner.
[639] The court notes that there is absolutely no credibility issue with respect to this evidence regarding the iPad and iPod as all of it comes from the respondent himself.
[640] The court further notes that on page 39 of the Society’s report there is an indication that the Police Constable, in reference to the mother’s texts being picked up on Jane’s iPod, had a call from (redacted – C.A.?) to ask that the officer speak to the case worker, Ms. Levangie about not discussing this with the mother. “They want to gather information for court case.”
[641] This court finds it very ironic that the respondent is at times alleging that the applicant is using the Society with respect to this family law case and yet at the same time he finds it appropriate (presumably in concert with his girlfriend) to request that the Society not disclose to the applicant that he is surreptitiously utilizing his daughter to gain evidence against her mother.
[642] At page 40 of the Society’s report is a record of a telephone message from the respondent to the Society on December 18, 2015 in which he reports that James had hit the applicant in the face this morning and he (the respondent) is concerned about the escalation. It will probably come as no surprise to the respondent that the court does not consider his “concern” to have been genuine.
[643] At page 47 of the Society’s report is a further telephone record between the respondent and the Society on January 6, 2016. Once again, the respondent said that he did not agree at this time for the worker to speak to the applicant about her text messages going to Jane’s iPod.
[644] The court notes that at this time he has been aware for more than one month that Jane has been reading the private texts of her mother. The iPod is now in his possession and he continues to ask the Society not to alert the applicant so that he can continue to gather evidence against her. Of course he never tells the Society that this is his motivation.
[645] Page 49 of the Society’s report is a home visit on January 25, 2016 with the respondent and the children by the Society. The court finds that the following is probative from this log:
The respondent reports that James told him he punched his mother in the face and pulled her hair.
The respondent reported that at times the children call him and leave their phone on so that they (presumably he and his girlfriend) can hear the conflict.
He reported that he has spoken to his lawyer about the applicant’s texts sent to Jane’s iPod and worker can speak to the applicant regarding the texts.
When the children arrived, the respondent took the children to a different room to talk to them about speaking with the worker before they came back to the table where the worker was sitting.
The children were present with their father when discussing the following issues with the worker:
Jane asked the worker about speaking to her mother about the texts and said she thought the worker would not speak to her mother about that “right away”.
Jane said they go a few days without breakfast or dinner if they do not go downstairs fast enough.
Their mother said she would call the school to make sure that they don’t get the breakfast program as they had not been listening.
Jane and James said that their mother gets mad she yells and is swerving while driving and driving in the middle of the road almost hit another car.
The respondent said that he believes the children should have a relationship with the mother and a decrease to once a week would be better during the time that counselling is taking place.
[646] At page 54 of the log relating to a telephone call from the applicant on February 5, 2016:
The applicant reported that Jane told her that they (presumably her father and his girlfriend) were gathering evidence against her.
James tells his mother that he was reading the texts but Jane then “corrects him” and said that he just heard her talking about it.
[647] At page 58 in reference to an office visit with the applicant on February 12, 2016, there are a number of things which the court finds probative:
James’s behaviour with his mother showed significant deterioration after November 2015 when visits resumed as a result of the police enforcement clause. This also coincides with the time Jane (and James at least some of the time) are privy to their mother’s texts. When the applicant attempted to ground James from his iPod, the applicant heard the respondent tell James on the phone that he should keep it in his pocket and it’s stealing if his mother tries to take it.
James became physically aggressive kicking hitting and jumping on her back when she tried to take away a hat from him as a consequence of not listening to direction.
When she attempts any discipline with James, he immediately calls his father.
On another occasion James slapped her in the face.
There are times, however, when the children are fine with her for days at a time.
The applicant prepares breakfast for the children and repeatedly calls them but if they don’t come down soon enough she tells them they cannot have breakfast.
Jane is constantly on the phone with her father reporting on all events.
On one occasion Jane put her father on speakerphone and her father was saying that the applicant needed to apologize regarding comments about (redacted C.A.?).
[648] On page 71, there is a log entry March 2, 2016 in which reference is made to Jane being placed in handcuffs by the OPP as a result of an assault on the applicant in the presence of the police.
[649] On page 74, in reference to a telephone call from the applicant on March 4, 2016 wherein the applicant advises the Society that James knew the content of the applicant’s court brief. At the same time she overheard James telling his friends that “his mother was a b*tch”.
[650] On page 76 there is a reference to a telephone call from the applicant on March 7, 2016 that the boys call her “stupid” and “an idiot”. All of the children were screaming at her calling her “a btch and a f**king btch”.
[651] One morning when James refused to come down for breakfast he called his mother a “mother f**ker”.
[652] On page 79 referring to a telephone call from the applicant on March 15, 2016, the applicant reported that the respondent did not agree to stopping phone calls with the children at 9:00 p.m. saying the children needed to call him as “they are terrified”.
[653] On the following page of the Society’s report, another reference to all of the children calling the worker an “f-in liar”.
[654] At page 81 of the Society’s report is reference to a home visit with the applicant on March 18, 2016:
The applicant reported that James (then age 11) was on the phone with his father until 5 minutes past midnight on a school night.
That the boys are made to feel guilty by their father if they don’t talk to him on the phone and that Jane will insist the boys call him even if they are playing with friends.
She reported that Jane was asking her questions about what they were doing on the day they were last in court. When the applicant did not tell her there was a court date Jane called her “a liar” as she knew exactly where she was as she has “her sources”.
Jane, upon learning that the worker was coming said the worker is “bad, a liar” and that “all the workers and assessors have been discredited by her father”.
The worker wanted to speak to the children individually but when the applicant went upstairs and spoke to the children she came back down and said that the children are on the phone with their father and say they want to speak to her as a group. (The court notes that the worker then did speak to all three together.)
Jane confirmed that she had been reading her mother’s texts on her iPod.
James said that he was aware of the texts.
When Jane was complaining about having to go to babysitters after school the applicant indicated that Jane was allowed to go to a friend’s house but she did not want to.
[655] On page 80 of the log there is a reference to a telephone message from the applicant on March 31, 2016. She indicates that at an Easter family visit the children refused to come out of their rooms apart from dinner and that James said that the applicant’s family “are not my family”.
[656] As well, the applicant found a list after the children had spoken with their father in adult language about aspects of the custody order and things to talk about with the worker.
[657] In a further telephone message from the applicant on April 4, 2016 she reports that James was asking her why she didn’t leave the house when they separated.
[658] On page 82 of the log is a telephone message from the applicant on April 8, 2016. She reports that when she phoned the respondent to advise him that James was sick and that he should pick him up at her house he told her to “f**k off”.
[659] At page 85 there is a memo dated April 21, 2016 from the then current worker Estelle Levangie transferring the file to Doug Cochrane. She indicates that the children present as confused, having aligned with the father and say they don’t want to be with the mother but that is still indicated there is no reason why they should not be with the mother.
[660] At page 86 there is a log notation from Doug Cochrane dated April 22, 2016 being his first meeting with the applicant. He notes that he met with the children but they would not meet one-on-one.
[661] At page 89 is a log entry for May 16, 2016 where Doug Cochrane met with John relating to the alleged incident with his maternal step-grandfather on Mother’s Day. John reported to Mr. Cochrane that the step-grandfather had “pushed him hard enough that he almost fell down”.
[662] The following pages reveal interviews with James and Jane regarding this incident. This court notes that while at their father’s home, they agreed to meet alone with Mr. Cochrane. The children are all on the verge of tears and report that they would want to live with dad because as Jane puts it “at dad’s house everything is easy and they get together and talk and it feels like they are family.”
[663] Doug Cochrane also notes about his first meeting with the respondent. At this initial meeting, the respondent indicates that “M.B. is very vindictive and cruel to the children.”
“C.V. reported how he’s tried very hard to be neutral and not to take a side that would be affecting the children.”
“But that M.B. is quite open with the kids about how much she does not like him.”
“M.B. should just realize that the children want to be with him and give up all this fighting.”
“C.V. portrayed himself as being a most reasonable and caring father.”
“He portrays M.B. as being inadequate and affected by this accident that she had and not being fit to be a mother.”
[664] At page 90 referring to May 17, 2016 access visit, the police are called by the applicant to enforce the midweek access from 4:30 to 7:30 p.m. The police were looking for some direction from the Society as to whether there was a reason for the police not to enforce the order. Stacy Beckels-Gaines of the Society advised the officer there is nothing that she could see in the file that would indicate the Society needed to interrupt a court order.
[665] At page 91, is an account by Doug Cochrane of the telephone call he had presumably with the applicant’s mother. There was a recounting of a version of what occurred on Mother’s Day:
There is a notation of a telephone call from an OPP officer on May 31, 2016. This is in relation to one of the boys throwing a water bottle at his mother while she is driving. She attended at the respondent’s house to retrieve some sports equipment. All three children went in and refused to come back out. When the police spoke to the children they were inside watching television. The respondent kept interrupting and told the children that their mother has been abusing them. The police reported that she was surprised by the language used by 10-year-old James (adult language).
Of note, is that the police report the children were throwing tantrums while in the presence of their father but while walking down the driveway, away from their father, their crying and tantrums stopped and they got in the vehicle with her mother without any further problems.
The police officer cautioned the respondent about saying to the children “your mother is a lunatic”.
The police officer reported to the CAS, that she felt she was concerned for the children’s mental well-being as the respondent was encouraging the children did not visit their mother and continue to badmouth her.
[666] At page 98, there is a log dated July 18, 2016 being a telephone call from the respondent to Doug Cochrane. The notation is that the respondent was hostile and, notwithstanding that John had reported he was not pushed to the ground by his step-grandfather, the respondent was insisting that he had been and that he was “fed up with the Children’s Aid and couldn’t believe they weren’t going to be pressing charges against (redacted grandfather)”.
[667] The respondent was not willing to discuss any other issues that Mr. Cochrane wished to discuss and was insistent that he would also be contacting the police to continue on with his assault charge claim.
[668] At page 100, there is a notation of a voicemail received from the applicant on October 4, 2016. This relates to baseball tournaments on the weekend where the three children were in three different places. Although the report is redacted, it appears that Jane was being driven to a tournament in Bracebridge by her maternal grandmother and that at one point Jane “went berserk” throwing and smashing things in the house and calling her mother several times to yell at her as well. When presumably the grandmother took the phone and thought Jane was talking to the applicant, she was in fact talking to the respondent who yelled at her (the maternal grandmother) demeaning her in the presence of John who as at that time in the respondent’s car. After one of the games the respondent invited everyone back to his house for pizza saying to the children,
“Well I sure hope you can come. But it’s not up to me it’s up to your mom so only if your mom will let you.”
[669] The applicant reported, quite understandably, that she was frustrated as she felt she had no choice but to bring the kids to his house despite having spent very little time with them in the last three weeks.
[670] After the pizza party, the applicant was required to wait on the road at the respondent’s residence from 10:30 p.m. until 11:10 p.m. to pick up the children even though they had another game in Bracebridge the next morning at 9:00 a.m.
[671] At page 101, Mr. Cochrane references a voicemail from the applicant on October 4, 2016, where she reports that the respondent approached her and her father, taunting them about pushing him and then saying “oh no you only push kids”:
She reported that in front of the children their teammates and other parents.
He shouted “none of them want to be with you”.
[672] At page 102, there was another note regarding a voicemail from the applicant on October 4, 2016, indicating that when she texted (redacted C.A.?) and threatened police involvement in order to get the children to come out to her, the children did come out and were livid calling her a “fking ahole” and said that “they f**king hate her”.
[673] John then threw a ball at her face and the children laughed at her.
[674] At page 105, referencing an email from the applicant, it is noted that Jane uses the exact same language as her father.
Following page references a voicemail message October 3, 2016 where, when the applicant planned to take the boys to visit a friend while they were at a tournament, James jumped out of the applicant’s moving vehicle claiming that the friends were “horrible people”.
The applicant also reported that the kids (James and John) were swearing at her calling her a “fking dick” and “ahole”.
Of note in this notation is that the applicant’s tone indicated she was crying and said “hopefully nothing worse happens between now and Monday”.
[675] On page 106, there is a reference to a voicemail from the applicant October 3, 2016 indicating that when the applicant tried to speak with Jane, she covered her ears and shouted “la la la la”.
[676] The applicant reported that when she tried to discipline the children by taking away their electronics they called her a “fking b*tch, an ahole, crazy, insane and mental and f**k you” and gave her the finger.
[677] At page 107, there is an email from the applicant to Doug Cochrane on September 18, 2016. The applicant reports a “dialogue” that occurred between she and the respondent at an arena while at Jane’s baseball practice (in front of the children).
She reported that he began laughing at her and calling her an idiot.
He yelled in the presence of the children “you’re a child abuser! A child abuser!” He began laughing at which point the children joined in laughing with him but looking scared.
The respondent then said “I’m not done with him yet he wants to push kids? He can push me he didn’t want to fight the other night you tell him I’m looking for him I’m not done with him ha ha ha” at which point the respondent began hugging the kids.
He then said “you see this, this is what they do when they like you.” The applicant reported shaking at that time.
[678] At page 111, there is a report of a voicemail from the applicant on October 5, 2016, in which she reports that James said to her “you know we made fun of you all weekend. And made fun of the fact that I jumped out of the moving car” with James saying “you’re so stupid” (with the respondent apparently asking the children if they wanted to drive by (redacted but presumably C.T.’s) house so they could jump out of the car).
[679] On page 120, there is a report relating to an incident on November 17, 2016, being the “video incident” where Jane recorded her mother in the van while driving and erasing a video from James’s iPod.
[680] On page 123, according to the Society’s information as at January 12, 2017, the respondent was planning on bringing a motion to have the children in his care with the mother having only supervised access as a result of this video.
[681] The court notes that much of what is contained in the Society’s logs are hearsay recounts of either what the applicant has said occurred, or what the police have indicated to the Society or what the respondent or children have relayed to the Society. However, the court felt that it was somewhat probative that the applicant continued to attempt to have regular time with the children notwithstanding all of these actions, and that the Society was fully apprised of the conflict between the parents and obviously did not see any reason to interfere with the applicant’s time with the children.
[682] Doug Cochrane gave evidence at court and, as indicated, had filed an affidavit. With respect to what was contained in that affidavit, predating his involvement in this file in April 2016, he noted in his testimony that all of his information was based on the information that he had taken from the Society files. Therefore, this court finds that the Society’s logs are more probative with respect to that timeframe than the evidence of Mr. Cochrane.
[683] The court also notes that Mr. Cochrane indicates that where the Society’s logs have been prepared by other Society workers, they are not a verbatim recounting of his notes.
[684] In cross-examination, with respect to page 121 being the notation of December 8, 2016, Mr. Cochrane noted that he did urge the mother to consider not having the children with her while the child protection worker assessed whether or not the children should be in the mother’s care. This was as a result of the “video incident”. When questioned by the respondent’s counsel, he indicated that the Society had not been considering an apprehension and intervening to preclude the mother from having time with the children as a result of that video.
[685] Mr. Cochrane clarified that when the Society received information from the police it was not the actual police reports that were received but contact notes from them.
[686] In cross-examination, relating to the “video incident” Mr. Cochrane acknowledged that he did tell the children that he “would help them”.
[687] The court notes that the children have repeatedly indicated that the Society has not “helped them”.
[688] Based on the totality of the evidence, the court interprets that the children view “helping them” as doing what they ask; that being, doing something so that they are not required to go to their mother’s.
[689] From the court’s perspective, and based on his answers during cross-examination, Mr. Cochrane does not view helping them to mean the same thing.
[690] During intensive cross-examination on the point, Mr. Cochrane indicated that he did not see the mother’s actions on the video as creating a situation pursuant to which he felt the mother would be putting the children at risk in the future.
[691] He indicated that he viewed this as an isolated incident.
[692] Once again, under intense cross-examination, the respondent’s counsel questioned Mr. Cochrane about him asking Jane to see her iPhone in regards to his interview with her relating to the time that all of the children got out of the applicant’s vehicle and ran back two or three cars to get into the respondent’s vehicle.
[693] Mr. Cochrane had asked to see Jane’s iPhone so that he could view the texts between she and her father immediately preceding the time relating to the apparent organization of this exit from the applicant’s vehicle.
[694] The respondent’s counsel suggested to Mr. Cochrane that he had said to Jane that if she did not give him her cell phone, he might have to take the children from her father. Mr. Cochrane denied ever making any such statement.
[695] However, this court finds it quite enlightening that Mr. Cochrane reported that Jane was quite distressed at the time and that she kept repeating “please don’t take us and put us in a foster home”. He found that quite unusual as he had never suggested this and it had never been part of his conversation with her or the other children.
[696] Mr. Cochrane’s belief was that the Society came into possession of the video as a result of the respondent giving it to the police and the police giving it to the Society. Mr. Cochrane was quite certain that the notation on page 120 of the Society’s log, indicating that the video was given to them by the mother was incorrect as the mother had been asking the Society for a copy of the video.
[697] During cross-examination, Mr. Cochrane acknowledged he should have spoken to the respondent regarding the information that he received information from the applicant about Jane reading texts on her iPod that were from her mother’s iPhone.
[698] Mr. Cochrane acknowledged that the children appeared to be well-adjusted; they excelled academically and excelled in sports. He further acknowledged that the children had been saying they want to live primarily with their father.
[699] He acknowledged that there were no protection concerns in the father’s home and that there was no allegation of any yelling, verbal abuse, or discipline issues in the father’s home.
[700] Mr. Cochrane further acknowledged that the children had reported conflict in the mother’s home and that John had reported that on Mother’s Day 2016 he was pushed by his maternal grandfather hard enough that he “almost fell down”. He pointed out that the applicant indicated that it was more of an attempt by her step-father to direct John into the mother’s van than it was a “push”.
[701] Mr. Cochrane acknowledged, under cross-examination, that the children like living with their father, wish they could live with their father and that when they are at their mother’s they spend a great deal of time in their room.
[702] Mr. Cochrane testified that on behalf of the Society he was not concerned about what went on at either house but was concerned about what was occurring during the exchanges between the parents.
[703] On re-examination, Mr. Cochrane indicated that he was concerned about the father’s influence on the children. He found that although the father alleged there were safety concerns at the mother’s residence he did not see anything and nothing specific was alleged. He points out that the father said that he encouraged access to the mother.
[704] In response to questions from the court, Mr. Cochrane indicated that he had a Bachelors of Social Work and a Master of Social Work in which he specialized in the mental health of children.
[705] He agreed with the court that there are cases in which parents attempt to involve the Society in a custody access dispute as a tactical move. His evidence is, however, that he did not believe that this was the case in this particular situation.
[706] Mr. Cochrane indicated to the court that all Children’s Aid Societies in Ontario use an eligibility spectrum scale to create uniformity in how they look at allegations that are brought forward.
[707] He referred to twelve different codings and indicated that in this file the codings all related to either conflict or a risk of emotional harm.
[708] This case did not lead to any concern by the Society of a risk of physical harm in either home.
[709] The court asked him, based on his experience with this file, and his general experience, as to anything else that he wished to tell the court that he believed would be helpful in the court making a decision in the case. Mr. Cochrane indicated that he did not believe that the children, being in the primary care of one parent or the other is going to change things all that much. He felt that a reduction in communication or access back and forth would potentially be more useful.
[710] He concluded with the statement “I think there is a need for the children to be able to understand or see that it’s, it’s (sic) okay and it’s a viable option to be able to spend time with both their parents.”
[711] The court could not agree more that this is exactly what these children need.
OPP OCCURRENCE REPORTS
[712] Filed as Exhibit 5 at this trial and referred to in testimony and cross-examination of a number of witnesses, were 26 OPP occurrence reports between November 18, 2011 and February 9, 2017. In addition to this, there was one occurrence report from the York Regional Police (filed at Exhibit 3) and 6 occurrence reports from the Barrie Police Service (filed at Exhibit 4).
[713] Suffice it to say that this family and these children are very familiar to the police forces in their jurisdiction.
[714] On virtually all, if not all occasions, the Children’s Aid Society was made aware of the police involvement with this family.
[715] This court does not intend to exhaustively review each of the police occurrence reports but will make reference to the same in reviewing the evidence particularly of the applicant and the respondent.
[716] In crafting a decision on this trial, one of the objectives of the court is to create an environment pursuant to which this family will not see a need to involve the police on a regular basis and into the future.
[717] The other strong theme from the children is that they found the police enforcement of custody provisions to be intrusive and something which they wish to avoid in the future.
[718] Eleven year old James probably said it best (the court is paraphrasing) when he indicated that he thought the police should be involved in dealing with matters of a criminal nature and not have to spend their time dealing with the enforcement of custody orders and transporting children between parents.
JULY 16, 2015 MOTION BEFORE JUSTICE GRAHAM
[719] The applicant brought a motion July 16, 2015 which was heard by Justice Graham. This motion was for summer access and for police enforcement of her time with the children.
[720] At trial, the applicant filed as Exhibit 85 the transcript of that court appearance.
[721] There are a number of things which are very telling from that transcript as was heard in evidence at this trial. As is set out in the transcript, it was the applicant’s “turn” to have first choice as to summer holidays. In accordance with the Corkery J. order, she was to advise the respondent by February 15 of her choice for holidays.
[722] Her evidence was that due to some “technical glitch” her choice was not emailed to the respondent until approximately noon on February 16, 2015, or as identified by Justice Graham, her request was “12 hours and 10 minutes late”.
[723] The respondent took the position that because her request was late, she then forfeited her entitlement to first choice of summer holidays and therefore he could choose first.
[724] On page 25 of the transcript, the respondent attempts to explain his rationale as to how the 12 hour and 10 minutes delay, caused him and the children prejudice.
[725] Quite candidly, this court finds that his explanation to Justice Graham is similar to the explanations that he gave at this trial. This court finds that the respondent “has an answer for everything”. That is not to say that the answer is reasonable.
[726] The respondent’s stated rationale is that because she was late with her selection, he made selections in accordance with the agreement including one of the weeks that she wanted, whereby he claimed the children were going to a hockey summer camp with some friends.
[727] He of course, had difficulty explaining how all of this supposedly happened in the 12 hours and 10 minutes past the deadline. What was even more bizarre is he acknowledged to Justice Graham that in fact he had not even enrolled the children in this hockey summer camp, which he claimed caused the conflict, so that he could not give the applicant the two weeks in August that she had chosen.
[728] As is consistent with his “mantra”, on page 28 of the transcript, when challenged by Justice Graham as to how there was a difference between a notice being sent to him at 11:59 p.m. on February 15 or 12:10 p.m. on February 16, and how this apparently makes “a heck of a big difference to you” the respondent explains “I would submit Your Honour that it does not. We (presumably he and his girlfriend) were trying to do what was the best for the children and what they expressed as their wishes.”
[729] This is another example of the respondent’s, in what this court finds to be, absurd rationale trying to rationalize that he is simply only doing what the children want. This court notes that at the time Justice Graham was dealing with this, the children were two years younger and were at that time eight, ten and twelve years old.
[730] As well, on page 29 of the transcript, it is noted that the ever humble and altruistic respondent, states “I would submit, Your Honour, that I’m the only ones (sic) that think about the best interest of my children regularly.”
[731] To some extent, the respondent then “gives himself away” by subsequently saying “at that point, Your Honour, the children were interested in some of the other plans that were, were going on and… we had discussed this.”
[732] The only logical explanation for this is that the respondent had kept the children fully informed and had made “contingency plans” for the children to do something else in the event that, as happened, the applicant “dropped the ball” and did not meet the February 15 deadline.
[733] To this court, this is additional evidence and one of the bigger “puzzle pieces” that puts together a picture of alienation, plotting, and what is extremely troubling to this court involving the children directly in that plot.
[734] Clearly, this court is not the only court that has that opinion of the respondent, as on page 30, Justice Graham notes,
I’ve got to think is that it just was something you decided you would grab a hold of because I sure can’t think of anything else that those 12 hours made such a difference about. So carry on, we’re here because of those 12 hours and 11 minutes.
[735] This court finds that a supreme irony is that during this trial, one of the main “themes” of the respondent and his counsel was that the applicant was being totally unreasonable by insisting on compliance with the agreement. Yet, page 32 of the transcript reveals the respondent advising the court in reference to the 12 hour 10 minute issue, “I really don’t know what to say, Your Honour. I’m surprised, I’m acting in accordance with the agreement. I was told that it’s the, it’s what you do. You honour the terms in the agreement. I did. I’m expected to honour each and every term on it”.
[736] Another very telling piece from that transcript is that the respondent claimed at that time that police enforcement “would be devastating for my family”. Justice Graham then asks the obvious question “Who do you think will have control of that?” (whether or not police enforcement becomes necessary) to which the respondent states the obvious “It would be me”.
[737] Justice Graham then indicates “That’s right. So if these children actually have to be apprehended by the police at some point this summer you and I both know whose fault that will be.”
[738] When the respondent protests that his daughter poses a flight risk, Justice Graham states “I can’t begin to tell you, C.V., how unimpressed I am by the material you’ve provided this Court and the approach you’ve taken to this matter, and how, in my view, it is contrary to the interest of your children.”
[739] Justice Graham then points out, on page 38 of the transcript,
In 2014 C.V. had first choice (referring to summer holidays). He made a choice that combined his regular time with the children with his two weeks such that they would be with him for a lengthy period.
He did so because he thought he could do so because of the wording of the order. He did so despite the opinion of the assessor that that would not be in the best interest of the children to be away from their mother for that period of time.
[740] Justice Graham then went on to indicate when referencing the fact that the respondent raised the “technical argument” that in February 2015 the applicant was 12 hours and 10 minutes late in advising him of her choice of summer holidays, Justice Graham stated,
The Court finds it incomprehensible that a parent would engage in that kind of reasoning in relation to choosing the summer access. Yes, she was 12 hours and 10 minutes late but it made absolutely no difference in terms of the best interest of the children. It was inappropriately technical, adversarial, argumentative and conflictual for C.V. to take the position that he did.”
Apparently C.V. thinks that the children get to choose and that even if the time that they are supposed to be with their mother is being spent with him that is up to the children. He is wrong it is his responsibility as a parent of the children to ensure that they comply with the access or parenting time schedule.
So, in fact what M.V. threatens to do (if the word “threaten” is applied which I do not think is appropriate) but what she seeks is police enforcement so that if C.V. holds onto the children when they are supposed to be with M.V., something can be done about it.
Do I think she wants to involve the police; absolutely not. What she wants the enforcement clause for is because without it she does not believe that C.V. will respect the agreement.
Her affidavit material is replete with examples of the agreement not being respected by C.V. who ironically relies upon that same agreement today for the fact that she was 12 hours and ten minutes late and telling him in mid-February what access she wanted in August.
He writes, and I agree, “That it would not be in the best interest of the children to have police enforce parenting time.” I could not agree more but he and I both understand that whether that happens will be entirely up to him. It is his responsibility as the father of a 12, 10 and 8-year-old to ensure that they are in the care of their mother when they are supposed to be.
C.V. says in his affidavit, “The children continue to flee the care of M.V. with increased frequency.” Aside from his use of the word “flee” which seems inappropriate to me, and if there is a flight, it is apparently, according to M.V.’s affidavit, one in which at least C.V.’s current common-law spouse is an accomplice. For she is the person, who according to the un-contradicted evidence of M.V., attends at M.V.’s residence to take the children during M.V.’s time presenting as an excuse some sort of safety concern which is utterly ridiculous.
[741] When discussing the respondent’s “rationale” for not having the children be with their mother on Mother’s Day, Justice Graham notes:
Again, C.V. says that the 12 hours and 10 minutes is a non-compliance with the order of Justice Corkery and therefore M.V.’s dates should not be respected but when it comes to Mother’s Day I guess it is okay for the kids to spend the whole day with their father, contrary to that very same agreement.
[742] Justice Graham goes on to deal with the dentists and appointments for the children and points out that contrary to the position taken by the respondent (which evidence this court heard as well relating to the mother attending at a dental appointment for the children and the respondent deciding to remove the children from the appointment entirely because she arrived), Justice Graham points out that “both parents may attend all appointments for the children.”
[743] Justice Graham finds that contrary to the respondent’s position, the order states exactly opposite to what he is claiming being that the mother had the right to be at those appointments.
[744] In dealing with the issue of consent to travel, Justice Graham finds that the respondent’s position that he was not obligated to provide an itinerary to the applicant prior to demanding her consent to a trip to Arizona, is the exact opposite and, once again, when referring to the respondent’s interpretation of the court order, Justice Graham states “he is wrong”.
[745] Justice Graham also noted on page 47: “But suffice it to say, that if there is any truth to the allegation that C.V. has been raising adult issues with these young children he should be ashamed of himself.”
[746] When referencing the section 30 assessment, Justice Graham notes the following,
The theme that is in that report is that C.V. needs to be in control. If anything were a classic example of that it is his behaviour in relation to M.V.’s selection of summer access on February 16 at 12:10 p.m. and why now on July 16 we are in this courtroom? I have heard nothing from C.V. about why it would not be in the best interest of these children to spend the period of July 17th to August 7th with their mother as has been requested. His technical argument about receiving the notice 12 hours and ten minutes late has no place in a mature and thoughtful discussion about the best interest of children.
[747] As a result of all of the above, His Honour made a finding that:
Order to go that all police services in Ontario, including the Barrie Police Service and the O.P.P., shall enforce the schedule established by this order and shall locate, apprehend and deliver the said children to the parent who should have care of them in accordance with this order and may enter upon any premises, place, or location at any time, for the purpose of so doing without warrant or further authorization.
[748] This court also finds it very telling that at page 69 of the transcript Justice Graham pointed out to the respondent what his response should be if the children stated they did not want to go with their mother:
There’s only one correct answer to that kind of phone call and that is, “this is your time with your mom and you’ve had time with me and you’ll have time with me again but right now it’s your time with your mom and you listen to what your mother has to say, and if you have any difficulties with anything she’s saying to you, you talk to your mom about that.
[749] Justice Graham, at page 74 the transcript, went on to explain that parents should be teaching their children (and in this specific case the respondent) that,
Your mother loves you, I love you.… So these kids need to know, at the very least, that you respect their other parent because you two people are the most important people in their lives and it’s very confusing that one of the two most important people in their lives is indicating anything other than respect for the other most important person in their lives.… guilt, jealousy, rage, you name it, that’s all baggage that has nothing to do with the kids.”
[750] On page 75 of the transcript Justice Graham went on to indicate,
Always put the kids’ interest first and always speak respectfully and treat each other respectfully because the kids are listening and they’re watching, and even if it’s not intentional (this court will have more to say about that subsequently) somebody - you have some communication and you go, “oh” and you roll your eyes and you sigh, and they know that they’re - you received something from the other parent. That sends them a message and it’s not a good message because the message that they’re receiving is “this one of the two most important people in my life is you know not being respected by the other most important person in my life. Like how can I deal with that because I love them both?”
[751] This court has quoted extensively from the comments of Justice Graham in July 2015 because, there can be no doubt in this court’s mind that the respondent was warned that his actions at that time were totally inappropriate and further, was admonished for those actions and implored to change his behaviour. The court made it very clear to him at that time that if police enforcement became necessary the reason why it would become necessary is because of the respondent’s actions alone.
[752] The totality of evidence that this court has heard demonstrates to this court beyond any reasonable doubt let alone on the balance of probabilities that the respondent has engaged in a plan to totally undermine any relationship the children have with their mother and to “win” with that term being defined according to his definition of what “a win” looks like.
NOVEMBER 13, 2015 APPEARANCE BEFORE JUSTICE GRAHAM
[753] Notwithstanding those very clear messages sent by Justice Graham to the respondent, the parties were back in court November 13, 2015 when the respondent, then with counsel, was attempting to set aside an order that Justice Graham had made in October based on a 14B Motion. The rationale for seeking to set aside the order was that the respondent had attempted to file material in response to that 14B Motion that had not come to the court’s attention when the court made its decision.
[754] Essentially, the respondent’s position was that Justice Graham only intended police enforcement to apply to the summer access and not on an ongoing basis.
[755] This court reviewed the entire transcript of that court appearance as well.
[756] Suffice it to say, Justice Graham’s opinion of the situation had not changed from that which he expressed in July 2015 and, he found that regrettably, police enforcement was necessary on an ongoing basis. Justice Graham also noted that notwithstanding the number of matters that come before courts, this was one that stood out in his memory. The reason why it stood out was as noted on page 22 of that transcript “this case stood out in my mind, and still does, as demonstrating poor parenting on the part of C.V.”
[757] On page 25 of the transcript, Justice Graham notes,
…that police enforcement would only be necessary if he (the respondent) shirked his responsibilities as a parent to ensure that the court’s order with respect to parenting time was respected and that he did not shift that responsibility to a child barely 12 years old. This is an adult issue.
[758] This court notes that in making submissions on his behalf, his counsel (who was also his trial counsel) states:
And my client points out to the Court that what is broken here is not these children. What is broken is the relationship with their mother and that in other spheres these children are functioning very well.
[759] This court agrees with the respondent’s counsel on that point and finds that in 2017 the same situation exists. The children are, remarkably, functioning quite well in all spheres of their life save and except their relationship with their mother.
[760] Contrary to the representations however made on behalf of the respondent, this court finds that the reason why the relationship with their mother is broken can be distilled down to one person and those under his control, that being the respondent.
[761] Up until now, notwithstanding the poisoning attempted by the respondent to undermine any relationship the children may otherwise have had with their mother, the children are to their credit functioning extremely well. This court is, however, very concerned that there probably already has been, and certainly will be if this situation is allowed to continue in its toxic state, irreparable damage to these children as a result of the respondent’s actions.
[762] This court will do everything in its power to ensure that this does not occur and that these children are taken out of “the line of fire” wherein the respondent clearly has his sights set on the applicant.
[763] At that time, Justice Graham did not “buy” the respondent’s argument that it was not he who was causing the problem it was simply that the children did not want to go with their mother.
[764] Unfortunately for the respondent, this court does not “buy” his argument either.
[765] Contrast this with how Justice Graham viewed the actions of the applicant mother. Counsel on behalf of the respondent tried to suggest that the applicant mother was acting unreasonably because, at a time when James wanted to stay with his mother on the “respondent’s time” the respondent’s counsel argues that she is acting inappropriately by suggesting he should spend that time with his father. Justice Graham totally disagrees with the respondent’s counsel’s argument and states, at page 44:
The Court: And what on earth better can we expect a parent to do than exactly that? That’s exactly what we tell parents to do.
Ms. Burgess: The child is calling and saying “I want to come.”
The Court: And she’s saying your father hasn’t agreed; it hasn’t been worked with your father. That’s exactly what a responsible parent should say.
Ms. Burgess: Whatever Your Honor may think of my client and my client’s conduct and the psychological issues that may be at play here, whether this is parental alienation or justifiable estrangement or is a hybrid, that is being plumbed through the therapeutic process with Sue Cook.
[766] Justice Graham did not “buy” the respondent’s argument that for the mother to see the children three or four times a week at their various games and practices was appropriate instead of visits with their mother.
[767] The court found that:
I see people walking by the door of the courtroom; does that mean we’re having a visit? Does that mean we’re having quality time? You know what a ridiculous submission.” (Page 47)
[768] Justice Graham notes:
This is an instance where, based on the evidence, I take the view, on a balance of probabilities, the relevant test in this court, that C.V. is creating conflict with respect to compliance with the parenting time schedule.
[769] When discussing the issue of the children “fleeing from the mother’s residence” and allegedly getting a taxi to return them to the father’s home using money that twelve year old Jane just happened to have available for that purpose, the court notes:
C.V.’s façade of compliance today is not accepted by the Court as real. The Court has no hesitation finding, on the balance of probabilities, that the children were fulfilling his wishes when they left the mother’s home and took the taxi to his house. (Page 61)
[770] Justice Graham also noted that with respect to summer access:
I also have the evidence before me that the children during the summer spent 5 positive weeks with their mother, including Jane (sic), age 12, who had not seen her mother more than 3 times during the previous 9 months, and was refusing to see her mother, as she has been doing again since the end of the summer.
It is in the interest of these children to spend time with their mother as required by Justice Corkery’s order. (Page 63)
[771] Unfortunately for the children, their father’s behaviour did not improve after these admonishments by Justice Graham in 2015 but, to the contrary, this court finds that it simply strengthened his resolve to continue on the path that he was bound to continue on regardless of what anyone else told him.
ALYSSA KOENDERINK
TLC Involvement
[772] This witness is a counsellor who had involvement with the children both with Family TLC and subsequently, as a counsellor with her own practice.
[773] Her qualifications are that she has a Bachelor of Science in Psychology and a Masters of Arts in Counselling Psychology.
[774] Her involvement with the children is as a result of two court orders.
[775] The first relevant order is that of Justice Wildman dated August 25, 2015.
[776] Paragraph 2 of that order reads as follows:
The parties shall jointly retain either an agreed-upon therapist or therapeutic program (hereinafter “therapist”) for the children Jane born […], 2003, James, born […], 2005 and John born […], 2007 for the purpose of assisting the children to express what, if any, problems they are experiencing in the current shared custody/shared residency arrangement as set out in the order of the Honourable Justice Corkery dated November 13, 2013. Further, the therapist shall make recommendations as to what, if any, change(s) or service(s) would be in the best interest of the children and such recommendations temporary or permanent shall be in a written report if requested by either party. No later than September 30, 2015, the parties shall sign any retainer and requested consents and provide the financial retainer requested by the therapist. They shall attend all meetings that are requested and shall ensure the children’s attendance as requested.
[777] As a result of that order, the parties retained Family TLC. At the time of that retainer, Alyssa Koenderink was in the employ of Family TLC and in that capacity had interviews with the children.
[778] Prior to the court further discussing her evidence, the court will review the letter from Sue Cook of Family TLC to both parties counsel jointly dated January 22, 2016 (Exhibit 133).
[779] This letter sets out that the purpose of the retainer was to:
Ascertain the problems, if any that the children are having with the current custody/shared agreement; and
Make recommendations as to what, if any, changes or service would be in the best interest of the children and those recommendations are to be a written report as requested by either party. In other words Ms. Cook is to identify the problems and make recommendations as to the approach.
[780] The court finds that this is a reflection of what was set out in the earlier referred to order of Justice Wildman.
[781] On page 3 of Ms. Cook’s letter of January 22, 2016 she indicates at paragraph 2 “each child continue with individual sessions with Alyssa Koenderink (“Alyssa”).”
[782] It was in this capacity that Ms. Koenderink met with the children and filed her notes with respect to those meetings and gave evidence with respect to those interviews with the children.
[783] Her notes with respect to meetings that she had with the children while she was in the employ of Family TLC were filed as Exhibit 136.
[784] This court will highlight certain items from those notes.
[785] On pages 5 and 6, the notes refer to meetings between Alyssa and Jane.
[786] The notes relate to these interviews which took place between December 15, 2015 and January 5, 2016.
[787] To the court, these dates are significant because they coincide with other evidence that the court heard that, during this time, Jane was surreptitiously receiving text messages from her mother’s iPhone on Jane’s iPad/iPod. The court further notes that, the respondent during this period of time, was well aware that Jane was receiving these messages and that, as of December 25, 2015, the evidence is that this iPod was in his possession. The court finds that during this period of time, he was reading these messages and in all likelihood having discussions with at least Jane and possibly James about those messages.
[788] The court further notes that based on the notes made by Alyssa, there is an indication on December 15, 2015 that “Jane may want to talk more about the phone messages she saw from her mom about things that were upsetting.” There is no indication from Alyssa either in her notes or in her evidence that Jane disclosed to her that the respondent was aware of these messages or of the content of the messages or of the methodology pursuant to which Jane had seen these messages.
[789] The court notes that both in the interview of December 21 and December 28, 2015 Jane indicates to Alyssa that “she wants to get along with her (her mother) in the future” and that she “wants to get along with both parents in the future.”
[790] On January 5, 2016 Jane also talked about writing a letter to her mother and presented a draft. The court notes that on this day she was brought by her father to the interview.
[791] With respect to Alyssa’s notes relating to James during the same timeframe, the court notes that on page 7 Alyssa notes that,
At mom’s house we don’t get along… We fight about everything that’s going on, we are constantly telling mom we want to go back to dad’s house. One time we ran away to dad’s. It’s scary knowing that the police can come to your house and take you somewhere else. My mom doesn’t realize that we’re not happy when we’re there. I want to live in my dad’s and visit my mom’s. I don’t like always having a schedule and I want a change. I like the idea of being picked up from school and going to a parent’s house. Mom used to not let us call dad and dad says no matter what we can call mom any time.
[792] On page 10 relating to the interview of December 28, 2015 James stated that “he may want to have an appointment with his mom in the future to talk about caring about each other and listening.… James said that if his mom really cared she would do something about the current situation.”
[793] On January 5, 2016 the notes indicate “James stated that