N.H. v. J.H., 2017 ONSC 4867

CITATION: N.H. v. J.H., 2017 ONSC 4867

COURT FILE NO.: 12-3056-0

DATE: 2017/08/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.H.

Applicant

– and –

J.H.

Respondent

COUNSEL:

Brian Ludmer, for the Applicant

Richard P. Bowles, for the Respondent

HEARD: February 13-17, 21-24, 27, 28; March 1-3, 6-10, 13-17; May 23-26, 29-31; June 1-2, August 2-4, additional written submissions, August 9, 10, 2017

REASONS FOR JUDGMENT

PART ONE: Parenting Issues

J. Mackinnon J.

[1] What parenting orders should the court make where the shortcomings of both parents contribute significantly to serious and deteriorating mental health issues for their oldest child? Where the crux of the problem is that neither parent accepts personal responsibility for the years of dysfunction nor for the dire predicament their children are in? Where the views and preferences of the children are both the result of influence by their parents and of their personal experiences of each parent?

[2] These parents have been admonished by judges over the course of years of litigation. They have received the clarity of eight reports from the clinical psychologist they consensually retained to help them. They have not followed recommendations. Change is the only route to a solution for this family, but the parents have not changed.

[3] The respondent mother is a capable caretaker and lead parent in all areas except that of the father and his relationship with their children. Her mind is closed as far as the father is concerned. She sees him as a major risk to the children to the point that she has unilaterally breached the court access order multiple times, each time for significant durations.

[4] The applicant father, who once had insight and motivation to try to change his angry, reactive responses in frustrating situations, has lost that insight. Now he is fully convinced that he is the blameless victim of a malevolent former spouse. His children have asked him to change, but he does not seem to hear them.

[5] There is very little hope for a therapeutic solution now. The children need respite from the conflagration they have endured for so many years. Were it open to me to do so, I would order a six month placement for A.K.H. in a therapeutic foster home, with short duration, supervised access to both parents. I would order a supervised placement for A.S.H. with both of his parents on strict terms and conditions. I do not have the authority to make these orders in the case that is before me. The Children’s Aid Society has been involved with the family since 2012, but proceedings under the Child and Family Services Act, R.S.O. 190, c. C11 have not been initiated.

[6] The stakes here are very high. The parents should understand that if they both do not change, one parent may well lose contact with one or both of the children for the indefinite future as being the only way the court is able to insulate the child from the ongoing parental dysfunction which so impedes the child’s ability to grow up in a stable, stress free environment. The parents should regard my order as their very last chance to avoid that outcome, even if it may already be too late to avoid proceedings under the CFSA.

[7] The orders that I make, in accordance with the applicable best interests test, should not be taken as derogating from my view that these children are in need of protection, noting as I do, that this trial did not directly raise that issue and will be decided pursuant to the provisions of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.)

Introductory Facts

[8] The parties married on June 29, 1997. They separated on December 27, 2011. They have two children, A.K.H. born […] 2004 and A.S.H. born […], 2006. The application before the court was issued by the father on December 20, 2012. It included a claim for divorce which was granted on May 1, 2013, with corollary relief severed for future determination.

[9] The applicant is 46 years old. He has a Bachelor and a Masters’ degree in Electrical Engineering, and a Master of Business Administration. His current employment is with Bell Canada in the area of network planning.

[10] The respondent is 47 years old. She too has a Bachelor degree in Engineering, plus a law degree. She is currently employed as a corporate in house legal director. She is employed full time but works mostly out of her home. This provides her more flexible hours than would otherwise be the case, which she finds very convenient in terms of balancing her parenting and work related responsibilities.

[11] During cohabitation and after separation the respondent has been the lead parent. She has had more of the hands on care and took charge of the organizational aspects of parenting. Both parents have always been involved in parenting their children. The children have strong attachments of love and affection for both parents.

Procedural History

[12] The procedural history of this case has been long and arduous. It covers more than four and one half years. Two case conferences were conducted, in February and May 2013. A section 30 assessment under the Children’s Law Reform Act R.S.O. 1990, c. C.12 was ordered on consent to be conducted by Dr. Leonoff. His initial report is dated July 2, 2013. A contested order for temporary custody and access was made in September 2013. It provided for joint custody with final say to the mother, primary residence to the mother, and alternate weekends plus Wednesday evenings, in one week as a visit and in the other week as an overnight, to the father.

[13] A second substantive motion was heard in March 2014, after the mother unilaterally stopped the father’s access. The existing order was confirmed and the mother’s cross motion, for supervised access, was dismissed. A new term was added to permit only the parent with residential care of the children on the day of an event or activity to attend with the children. The motion judge strongly suggested that the parties return to Dr. Leonoff and provide him with a copy of her endorsement. They did.

[14] In his second report dated September 23, 2014, Dr. Leonoff described dysfunctional post-martial dynamics in which both parents felt fully justified, claiming to be protecting the children who were in fact suffering. He asked for the opportunity to address the report to the motion judge directly and that she seize the file, to take advantage of her insights with respect to the family and to enable direction to be given to the assessor’s findings.

[15] Dr. Leonoff’s report was never brought to the Justice’s attention. Nor were his recommendations ever implemented.

[16] A third substantive motion was decided on May 7, 2015. This order imposed supervision on the father’s access, but did not change its frequency or duration. In his reasons, Kershman J. held that supervised access was necessary for the safety and peace of mind of the children based on the father’s past behaviour. He seized himself as the case management judge. In January 2016 he ordered the case on to the trial list.

[17] A fourth substantive motion and cross motion were heard by another judge in August, 2016. The supervision requirement was lifted. The mother’s request to reduce the access was dismissed.

[18] This procedural history does not reflect the expectations for a modern Family Court. The Ottawa Family Court does not have a regular, systematic assignment of cases to individual judges for case management. Six different judicial officers were engaged in this case prior to trial. Almost two and one half years of litigation took place before Kershman J. took it upon himself to case manage the file. Four substantive motions were heard by four different justices. More than four years elapsed from the start of the case to the commencement of trial.

[19] Although the court appointed assessor reached out to the court, seeking a collaborative approach for the case, his report was never even delivered to the judge.

[20] Looking back, that point in time may have been pivotal. A case management system would have ensured that the report made its way to the judge. The case might have been tried years ago, within months of the receipt of that second report. Had that happened, the court may have been in a better position to make orders for the benefit and protection of these two children. The children may have been spared additional years of highly detrimental exposure to family dysfunction and parental conflict.

[21] At the time of his second report, the assessor was comforted by the fact that the children had fundamental strengths to draw on. But the consequences of delay are serious for young children. By the time of the assessor’s next report in April 14, 2015 A.K.H.’s academic performance was suffering, her anxiety level was high, and she was showing the ritualistic behaviour that was the onset of what was subsequently diagnosed as Obsessive Compulsive Disorder. During the trial, A.K.H. was taken to hospital by Ottawa Police acting under s. 17 of the Mental Health Act R.S.O. 1990, c. M.7.

[22] The trial commenced on February 13, 2017. In all, 35 days of trial were required. The court was unable to accommodate the trial in consecutive weeks given the time estimate was for three weeks. The first portion of the trial did occur in five consecutive weeks, until March 17. Two additional weeks were convened, commencing May 23.

[23] On the morning of March 17, the court was advised by respondent’s counsel that A.K.H. had a meltdown or anxiety attack and had been taken to hospital emergency the night before, where she remained with her mother. Later in the day counsel advised that they were now back home.

[24] I received submissions from counsel prior to making an order on April 4, that the hospital records relating to the emergency attendance were to be provided to Dr. Leonoff with the request that he see A.K.H. again for one or two additional sessions so that he could provide the court with an update as to her current psychological status and in comparison to when he had last seen her. Pursuant to this order, Dr. Leonoff delivered two letters, dated April 17 and May 9, 2017.

[25] On April 10 counsel addressed me with respect to events of April 6 which had resulted in the police delivering A.K.H. to her father’s home, followed by a CAS investigation into allegations of physical harm to A.K.H. by her mother. In response to the information I had, I made a temporary stay of the existing temporary order which awarded primary residence of A.K.H. to the respondent. I also ordered that the existing access order for the father and A.S.H. was to be strictly adhered to.

[26] On April 20 I heard an opposed motion by the father for leave to re-open his case so that he could provide testimony with respect to the events of March 16 and 17, and April 6. The applicant also proposed that he should be permitted to put the result of the CAS investigation before the court. I granted his motion. The respondent had also brought a motion seeking to have the stay lifted so that A.K.H. would return to live with her. I declined to do this and made an order for supervised access between them, to be reviewed on completion of the CAS investigation.

[27] That investigation was not completed until May 10. The CAS verified physical harm by the mother. No request to review the mother’s contact with A.K.H. was made before the trial resumed. A.K.H. continued to reside with her father, during which time the father also had regular access with A.S.H.

[28] During the final two weeks of the trial, the respondent made a request to re-open her case to testify about events of May 26. This was also allowed. Both parents were able to bring the court up to date to the last day of testimony, which was May 31, 2017.

[29] On July 20, both parties brought motions before MacLeod J. He dismissed the motions (2017 ONSC 4414) because the trial judge was seized with all of the issues they raised. He directed the parties to appear before me the next day. At that time, the respondent made an oral motion to re-open the case for fresh evidence. I granted her motion. The CAS had conducted an investigation into alleged physical harm by the father to A.K.H. A.K.H. had been residing with her mother contrary to my order, since June 24. I exercised my discretion to re-open the trial because these were important allegations and with the view that the children would be best served by my decision being as current as possible to the date of its release. This third re-opening of the trial was conducted on August 2, 3 and 4, 2017.

[30] Because of the extreme conflict between these parties and the urgent special needs of A.K.H., I decided to prepare and release my reasons on the parenting issues as Part One of my trial decision. Part Two will follow, and will address the financial and property issues.

Positions of the Parties

[31] The applicant father seeks an order granting the parents joint custody of the children with equal residential time on an alternating week basis. Given the changing events during the trial, he submitted that the court may move towards this outcome in a gradual way. Alternatively, he seeks parallel parenting granting him decision making authority for health and education and granting the respondent decision making authority for religion and extracurricular activities. In closing submissions, he also suggested as a further alternative an award of sole custody to himself.

[32] The applicant’s motion for contempt was heard as part of the trial. He sought findings that the respondent has been in contempt of the access order at various points in time, and by way of penalty, an order requiring her to contribute $500 per child to an RESP for every day of missed parenting time. He also seeks double make up time.

[33] The respondent mother seeks sole custody so that she can be the sole decision maker for the children after consultation with the father. She disagrees strongly with the viability of joint decision making. Nor does she agree with his proposal for divided decision making.

[34] The respondent seeks to maintain the children’s primary residence. She agrees to unsupervised access and proposes an evening visit every Wednesday and alternate weekends from Saturday morning at 10:00 am until Sunday afternoon at 3:00 pm. She added a caveat to the effect that the father’s access should not commence until Dr. Leonoff verified that each child is confident that he or she will be safe in the father’s care and will not be subjected to the father’s anger.

[35] The respondent opposes any finding that she has been in contempt of court. Her position is that she has done her best to facilitate access when the children have refused to go, and that she has only cancelled access to ensure the safety and well-being of the children.

The Best Interests Criteria

[36] Section 16 of the Divorce Act, is the governing legislation in this case. It provides in part as follows:

16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[37] The Children’s Law Reform Act is not directly applicable but courts frequently refer to it as a guide to useful factors when determining custody and access. Section 24(2) provides as follows:

24.(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3(1); 2009, c. 11, s. 10.

[38] In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52, the Supreme Court of Canada discussed the best interests test, noting that the Divorce Act provides two specific directions, the first one relating to the conduct of the parents. At paragraph 21, the Court held that in s. 16(9), “Parliament has stipulated that the judge ‘shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child’. … Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.”

[39] At paragraph 24, the Court noted that the second factor Parliament specifically chose to mention in assessing the best interests of the child is maximum contact between the child and both parents. The Court stated, “for this purpose, the court "shall take into consideration the willingness of [the parents] to facilitate "the child's contact with the non-custodial parent. The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3 at pp. 117-18, 1993 CanLII 34 (SCC) per McLachlin J.

[40] Both of these factors present very significant issues here. The respondent relies heavily on the applicant’s alleged misconduct during cohabitation as a strong factor against him. The applicant relies heavily on the many and lengthy denials of access by the respondent as a strong factor against her.

Past Conduct

[41] The respondent testified that during married life the applicant was verbally and physically abusive to her. She described him pushing, shoving, blocking and following her, starting during the first year of marriage and on a continuing basis. During their cohabitation she says he was volatile, scary and abusive. She testified that the day of and the day after abusive behaviour he would see it as a problem, apologize and be remorseful, but then it was as if it had never happened. She relates these characteristics to his ability as a parent.

[42] The applicant admits to three specific incidents of physicality during the marriage. He denies having a long standing anger problem or the type of lack of self-control the respondent attributes to him. The applicant notes that in couple counselling in November 2008, neither brought up violence, although anger was discussed. He agrees there were marital problems. He had wanted to leave the marriage after only two years. There was no sexual intimacy for the first six years of marriage, which was a significant problem for him. He found his spouse emotionally controlling and says she was physical with him.

[43] The first of the three physical altercations admitted to by the applicant took place on May 3, 2010. In describing what had happened the applicant went on at length about her berating him, about him pushing his emotions down, knowing it was wrong, and leaving the house, but he did not say what he had done until eventually I interjected. He appeared surprised that he had left this part out, and then said he had pushed her back.

[44] The respondent called the police. According to the officer’s report she told him there had been no physical assault in the past, however one other time he prevented her from moving around the house while they argued. She said they argued often and he would lose his temper. She said she felt his behaviour was getting worse; she was afraid of his temper. Her description to the police of what happened on May 3, 2010 was that he grabbed her arms, told her to “shut up” and placed his hand on her mouth. When he finally let go, she moved away and called the police. He left, and was not there when the police arrived.

[45] Later the applicant confirmed to the officer the accuracy of what the respondent said happened. I find this was the first physical assault by the applicant of the respondent. I do not find that she assaulted him.

[46] The police contacted the CAS because the children were in the home. The CAS recommended a program to the father called New Directions. He took the course. During it he acknowledged he had grabbed, pushed, yelled, and name called his spouse. He also admitted to having damaged property. He wrote that he felt he had caused his children to think he is easily angered and yells a lot. Based on the information provided by the applicant as described in the New Directions’ report, I find that he had engaged in grabbing and pushing the respondent, and had been verbally and emotionally abusive to her.

[47] The second admitted incident occurred while he was enrolled in New Directions. The New Directions’ report says the applicant described what he had done this way: “partially grabbed her by the neck in a choking motion.” In his testimony, the applicant said it was a choking motion in the sense that his hands were positioned around her neck as they would be if choking but not touching her neck unless perhaps in a glancing way. He acknowledged that yes, this scared her but he was clear that he had not actually choked her. He testified that she was berating and pushing him, although he does not excuse himself by that.

[48] He pointed out that she would not have been able to say “you are choking me”, if in fact he had been. When she said this he dropped his hands. He said he knew it was inexcusable and he left the house.

[49] The respondent testified that he had pushed her down on bed, pinned her there and put his hands around her neck. She says she couldn’t get her breath and whispered, “I can’t breathe.” She tried to push him off. She felt at the time he had completely lost control; he looked “gone”. She said it was as if something clicked in him and he got off her.

[50] I accept the respondent’s version of the assault. The applicant’s testimony was not entirely consistent with the description he gave at New Directions. Nor did I accept that he was sufficiently in control at the time that he could have placed his hands close to her neck in a choking fashion but without actually touching her.

[51] The third admitted incident occurred when the applicant was up on a ladder fixing the garage door opener. The applicant says the respondent came in and told him to go pick up some takeout food. He said he was busy, to do it herself. She kicked his tool box. He came down the ladder. He pushed her down, then left the house.

[52] The respondent testified to another incident, the so called closet incident. It was particularly disturbing to the respondent because for the first time the children were present. The respondent says the applicant was running around the hall, yelling. He had a meltdown explosion, and was completely out of control. She says the applicant pushed her in front of the children. He smashed dishes. The children were crying and screaming for him to stop. The children went into the laundry room and hid in the closet. The applicant yelled at them to come out, and then he pulled the children out.

[53] The applicant did not recall the children hiding in a closet. He did admit to smashing dishes.

[54] I accept this incident as described by the respondent. Dr. Nair confirmed that the applicant had told him he had once seen his daughter hiding in a closet. CAS worker Laura Bowerman interviewed A.K.H. on February 14, 2013. She says the child showed her a closet and said she had hid in it.

[55] My finding is that the applicant physically assaulted the respondent on each of these four occasions. They all occurred during 2010 and 2011.

[56] Starting in 2008, the applicant sought out help from a number of mental health professionals. In the course of so doing he made various admissions about his conduct towards the respondent during their marriage. She relies on his admissions as truthful and accurate, made at a time when he was still interested in salvaging the relationship. In testimony, the father tried to explain away these statements as based on “his mindset at the time”. By this he meant that he believed what he said at the time because it was what the respondent told him over and over again. He maintained that these admissions reflected what his wife had been telling him was the reality throughout the marriage. The applicant testified repeatedly, “I was seeing through her lens,” “my world view was what [she] told me,” namely that he had a serious anger problem since childhood. “I believed it.” He went so far as to say “She is like a cult. She has a power of indoctrination.”

[57] The applicant went on to explain that after he was removed from her sway, he was able to distinguish between what he now knows is truth and what he was led by her to believe. The truth, he says, is he is not an angry man, he has not had a longstanding problem with anger, there were the three admitted altercations during marriage, which he deeply regrets, but she was also physical with him, and he did not physically abuse her throughout fifteen years of marriage.

[58] The father attended five counselling sessions in 2008. The counsellor’s notes record the father’s concern at how he managed his temper, anger and conflicts with his spouse. He was looking for help in containing his anger. The applicant described the problem as existing for 8 to 10 years, in other words for what at that time, was most of their marriage. He also described himself as having a history of depression, violence and low self-esteem.

[59] Similarly in February 2011, the applicant saw his family physician asking for help with his lifelong issues with anger and marital problems. He was referred to a psychologist, Dr. Hotz, and met with him starting in February 2011 until December of that year.

[60] During his intake meeting with Dr. Hotz, the applicant said he was there for mental health and anger management. He admitted a longstanding problem with anger and yelling at home. He described that in the past he had held his wife down and blocked her from moving/leaving. According to Dr. Hotz’s note, he said he had pinned her to a bed, held and strangled her. He thought he had been getting better, when two weeks ago, he reacted to something trivial and pushed her to the ground.

[61] The applicant told Dr. Hotz about two incidents while he was growing up in his parent’s home. I put no significance on the first, which took place when he was four years of age. The second incident occurred when he was nineteen. His father was Dean of the engineering faculty he attended. Unbeknownst to him, his father directed him to study questions he knew would be on the applicant’s exam. When the applicant found out, he was furious. He pushed his father, and threw a chair, which made a hole in the wall. He immediately moved out of his parents’ house. His father testified that this was still playing on his son’s mind and upsetting him as late as November 2000.

[62] The applicant also told Dr. Hotz that he acted out against himself by punching himself in the head, in view of his wife. He said he had seen his own father do this. He told both Dr. Hotz and later, Dr. Nair that he had some similar issues at work. In testimony, he denied any work related concerns. He said making these statements was him amplifying input he received from his spouse.

[63] Shortly after the separation, the applicant described himself as in a shambles. His father arranged for him to see a psychiatrist he knew in Montreal, Dr. Nair. The applicant told the respondent he was seeing Dr. Nair. He told her he knew he needed to get better so he could spend lots of time with the children.

[64] Dr. Nair first saw the applicant in January 2012. He testified as a participant expert. After two sessions with the applicant, he thought that his situation was quite desperate with perhaps a risk of suicide. Dr. Nair prescribed cipralex and by April 2012 observed that the applicant had improved dramatically.

[65] Dr. Nair confirmed that the applicant told him he had been “physically violent to [his] wife for 15 yrs.” He testified that the applicant used the word “rage.” He made a note that the applicant told him that the he sometimes pushed her against the wall, and other “things like that”, but Dr. Nair did not ask for details.

[66] Dr. Nair also testified that the words he wrote in a January 6, 2012 letter, were the applicant’s: “he stated that his problem arose out of his periodic outbursts of uncontrollable anger.”

[67] Dr. Nair wrote a letter to the applicant’s family physician, Dr. Langill, dated January 6, 2012. In it under the heading “Diagnosis” he listed Intermittent Explosive Disorder and Major Depressive Disorder. The respondent relied on this in her approach to access in the next several months. She also continued to present it to court as a diagnosis that supported the position she took from time to time on the father’s access.

[68] In testimony, Dr. Nair stated that IED was a diagnosis he was considering based on his first two visits with the applicant. He said it was something he wanted to investigate and which he subsequently ruled out. One basis he provided for ruling it out was that the applicant’s reactions appeared to be in response to a provocation, which is not part of an Intermittent Explosive Disorder. He did however work with the applicant towards being less reactive to provocation.

[69] Dr. Nair concluded that the applicant had a Major Depressive Disorder associated with anger and irritability. He thought it was situational. By February 2013, Dr. Nair concluded the applicant was out of his depression and able to cope with situational stressors. He also concluded that the applicant had an emotionally dependent personality, meaning he is open to manipulation, complies with demands and expectations, out of fear of losing the love of people he loves. This was not yet resolved but the applicant was now aware of it which gave him the opportunity to counter balance these tendencies.

[70] Two issues arose from the inclusion of Intermittent Explosive Disorder under the heading “Diagnosis” in Dr. Nair’s January 2012 letter. The first is whether this was an actual, final diagnosis or merely a working or differential diagnosis to be ruled out. I accept Dr. Nair’s testimony that it was the latter. Despite the heading, it is clear he was ordering tests to determine if there were other causes for the symptoms described to him. He did not in fact carry it forward as a diagnosis in his subsequent letters. Dr. Leonoff also concluded that the applicant did not have Intermittent Explosive Disorder.

[71] On February 11, 2014, Dr. Nair wrote a letter To Whom It May Concern to say that IED was a possibility he considered, and excluded upon full investigation. The respondent suggests Dr. Nair wrote this out of ties of friendship with the applicant’s father. I disagree. I accept that the letter was written because the respondent continued to rely on the IED in court documents despite the intervening letter setting out only a diagnosis of major depression.

[72] The second issue is whether the respondent was attempting to mislead the court when she only presented the January 6, 2012 letter, even after she had received Dr. Nair’s subsequent letters. Dr. Nair released his file to the respondent’s counsel on May 30, 2013. The file included the February 18, 2013 letter where Dr. Nair did not include any diagnosis of Intermittent Explosive Disorder. The respondent received Dr. Nair’s February 11, 2014 letter as an attachment to the applicant’s affidavit deposed on February 18, 2014. I accept that she herself thought the first letter was correct and that IED was a correct diagnosis. In that sense, she was not intending to deceive the court. But introducing only one of four letters was not proper. If she was going to tender the first of Dr. Nair’s letters, she had to tender them all. She could then invite the court to agree with her that the February letter improperly resiled from a previous diagnosis.

[73] The respondent’s refusal to accept Dr. Nair’s explanation, which was objectively reasonable, corresponds with diagnostic practice, and was also Dr. Leonoff’s conclusion, is relevant to my assessment of her testimony. It shows her as unwilling and unable to accept as true something that may be favourable to the applicant. This is an important observation. It shows the respondent did not have an open mind where the applicant is concerned.

[74] In March 2012, the applicant filled out an application to attend a mediation retreat. In it he wrote that anger had occurred previously when provoked by environmental triggers, a few times while growing up in his parents’ home, and a number of times in the last 15 years. In testimony, he says the provocation he referred to during that 15 year period was from the respondent.

[75] An aspect of emotional abuse described by the respondent in testimony was the applicant’s use of self-harm. She said he would punch himself in the head or chest, and threaten suicide. On one occasion he threatened to cut off his penis.

[76] The applicant did admit to hurting himself or threatening to do so, and that this was abusive to his spouse. In testimony, he tersely described the time he had threatened to cut off his penis. He said he “became naked, in the basement” held his penis and said, “what is this good for?” and made the threat. He testified that of course he didn’t mean it and would not have done it. I find the respondent’s description more accurate. She said he ripped off his clothes and seemed to be out of control.

[77] The respondent described an incident when A.K.H. was a baby. She says the applicant had threatened to crash the car and wanted to hold the baby before driving off. She would not give him the baby. His father, Dr. S., testified that he remembers his son asking to hold the baby before he left in the car, and that he said to the respondent, she should let him hold her. But Dr. S. did not remember his son saying he was going to crash the car.

[78] The applicant denied ever threatening suicide.

[79] I accept the respondent’s description of this event. I find that the applicant did on this occasion threaten to crash the car. The couple had argued out of Dr. S.’s hearing. Dr. S. was aware something had happened between them, but did not hear what had been said.

[80] I have concluded that the respondent’s description of the applicant’s angry outbursts during marriage is to be preferred over the limited admissions the applicant made in his testimony. I find that arguments and verbal abuse pervaded the marriage. I find that the applicant did lose his temper and did have the anger problems he described to his therapist. He did engage in pushing, shoving and blocking the respondent. I find there were four occasions when the applicant actually hit, choked and pushed the respondent to the ground, as described above. I also find that the physical abuse worsened in 2010 and 2011.

[81] During his first attendance with Dr. Hotz, the applicant did tell him what his wife said were his problems. He also told him what he himself thought. Specifically, with respect to the longevity of his anger problem, the applicant told Dr. Hotz he had discussed this with his parents who had confirmed a long standing problem. At the next session, the applicant reported that he had researched the correlation between anger and low self-esteem. He then applied what he had read to himself and described how when he felt insecure or not in control, he would lash out verbally and become angry.

[82] On other occasions, the applicant and Dr. Hotz discussed how he amplified threat signals such that he was not responding to the reality of a situation. As an example, the applicant discussed that he may think someone is intentionally trying to hurt him and how this interpretation of events creates a negative arousal, and in his mind serves to justify his inappropriate expression of anger.

[83] During their April 4, 2011 session, the applicant acknowledged his tendency to defend himself by explaining, legitimizing or justifying what he had done. He recognized that when his anger is aroused he tunes out, doesn’t hear, and can’t listen.

[84] The applicant did describe some situations at work that bothered him. Subsequently, he told Dr. Hotz that he had applied his suggestions at work, and had achieved a better outcome.

[85] This information provided, and steps taken, by the applicant, is inconsistent with his theory at trial that the admissions he made to Dr. Hotz were the respondent’s reality, not the real truth.

[86] I did not accept the applicant’s explanation at trial that he only said what he said to Dr. Hotz and Dr. Nair because he was under the respondent’s influence or was seeing through her lens. Nor is the almost brain washing the applicant attributed to the respondent explained by the emotionally dependent personality described by Dr. Nair. There was no expert evidence to back up the applicant’s theory.

[87] I find that during his sessions with Dr. Hotz, the applicant showed considerable insight and was trying to learn to respond to challenging situations in a more reflective, resolution oriented way, rather than reacting with anger. I saw the tendencies he described to Dr. Hotz playing out in his testimony, especially when he was challenged in cross examination.

[88] The events that precipitated the separation occurred during a trip to Philadelphia. The applicant had temporarily moved out in November. But there had been a plan to visit the respondent’s sister and family in Philadelphia over Christmas. At the respondent’s request the family made the trip despite the marital difficulties. One evening an argument broke out between the applicant and his brother in law. The applicant blamed the respondent saying she insisted that he be the one to tell her brother he could not put on a movie until their children were asleep, which was taking quite a long time.

[89] The respondent blamed the applicant for being unwarrantedly aggressive but agrees her brother retaliated in kind. When the argument verged on becoming physical her sister intervened and told the applicant to leave. He looked to his wife for support but she did not support him; she regarded his behaviour as disrespectful to her family. The applicant went to a hotel for the night.

[90] After discussion, the family drove back to Ottawa the next day. It was December 27. Again, the applicant attributed blame to the respondent saying she insisted they all drive together whereas he had offered to travel back on his own. The applicant was the first driver. His testimony was that as he drove, he began ruminating about the failed marriage. Eventually he became too upset to drive. They switched drivers. The applicant continued to be upset and said he asked the respondent several times to pull over so he could get out and get some air. She refused each time. Finally he said he had to get out so he would just open the door and get out. The children heard him. They said, “no daddy no.” The applicant testified that this snapped him out of it. He described himself as slumping in his seat and remaining silent until they arrived home. His view is that the respondent should have let him out to get some air.

[91] The respondent’s version of the car ride was that the applicant was talking about what had happened the night before and was escalating. She said she was afraid because of how he was driving. Her testimony is that she pleaded with him for an hour to let her drive. Finally he did. But he continued carrying on in the passenger seat, and was banging the car door and the dashboard. The respondent said that the children were also crying and upset.

[92] She agrees he was asking to be let out of the car. She did not stop because they were not at an exit; the visibility and weather were poor. After he threatened to jump out, she thought he could be suicidal, and so decided it was better to keep driving. Eventually he did calm down.

[93] That night after the children were in bed, she emailed him to leave the house. The applicant did leave, but testified he had already told her he was leaving when she emailed him. This was the final separation.

[94] Where their versions differ, I prefer that of the respondent. The applicant’s version contained much justification and rationalization. He did not take real responsibility for his part of the events in Philadelphia or during the drive home. His threat to jump out of the car is consistent with other threats of self-harm he made during the marriage. The respondent could not know if the applicant would get back in the car if she did stop. Her decision to carry on without stopping is understandable.

[95] In summary, I find domestic violence of various types was perpetrated by the applicant against the respondent during the marriage. The applicant did acknowledge his deficiencies in terms of anger management but does not do so now. He was not sufficiently able to maintain appropriate emotional control during some trying situations. His past conduct is relevant to his parenting because it is indicative of a long standing tendency of reacting to stressful or challenging situations with an angry outburst. As will be discussed later in these reasons, I find that he continues to react in this way when the children are present, and that he has not taken sufficient corrective measures.

[96] I also find that the children were exposed to the physical and verbal abuse of their mother during the closet incident, and to verbal and emotional abuse during the trip home from Philadelphia.

Willingness to Facilitate Contact with the Other Parent

a. Statements made by the Children

[97] The respondent relied extensively on what the children told her by way of explanation of her interruptions of their access to their father. I received statements made by the children through the evidence of each of the parents, through Dr. Leonoff and from time to time through the testimony of CAS workers, and access supervisors. Out of court statements of a child may be admissible for proof of their truth under the principled exception to the hearsay rule. This requires a preliminary determination of whether a statement meets the threshold criteria of necessity and reliability. In this case the court was not requested to admit child statements for that purpose. Statements made by the children were received for the purpose of establishing the state of mind of the children.

[98] In Children’s Aid Society of Ottawa v. S.E. 2005 CanLII 18296 (ON SC), [2005] O.J. No. 2087, the court held that where a person describes his or her present state of mind (emotion, intent, motive, plan), the person’s statement to that effect is admissible where his or her state of mind is relevant. Statements admitted to show the declarant’s state of mind are not admissible to prove the state of mind of anyone else or to prove past acts or events referred to in the utterances.

[99] The views and preferences of the child are also a factor that the court is directed to consider when determining what is in his or her best interests. In R.G. v. K.G., 2017 ONCA 108, the court noted that the degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge’s discretion as she seeks to determine the child’s best interests.

[100] Ward v. Swan,[2009] O.J. No. 5782 (SCJ) provides an example of where the trial judge found that the children had been so immersed with the wishes of their maternal grandmother, that any expression of their wishes could be given very little weight. Put another way, the court has a duty to ascertain whether the stated views and preferences of a child have been independently formed. In Ward the trial judge concluded that the grandmother’s actions and omissions contributed to the children developing a distorted reality of their life with their father.

[101] Given the longevity of this litigation, the views and preferences of A.K.H. and A.S.H. have changed from time to time. There is a real question whether what they said from time to time was or was not independent. It is a fact that both children have been influenced in different ways and to differing extents by one parent against the other parent. Yet their views of their mother, and father, are also the product of their own experiences with each parent.

[102] The respondent often told the court what the children thought or felt, or what had happened at the applicant’s house, as if stating a fact, rather than providing the child’s actual statement. The distinction is important. The children’s statements are admissible as evidence of their state of mind. Without the child’s statement, the court is limited in its consideration of what it reveals about the child’s state of mind.

[103] Consideration will also need to be given to the reason why a child may have said what he or she did say. I note Sickinger v. Sickinger, 2009 CanLII 28203 (ON SC), [2009] O.J. No. 2306, where an experienced trial judge made the observation that a child who is tired of the parent’s “warfare”, may see the way out as discontinuation of access visits with the parent who does not have the primary residence. Here, Dr. Leonoff expressed a very similar opinion about A.K.H.

[104] I also concluded that the children sometimes said to a parent what the child found helpful to his or her self, or what the child thought the parent wanted to hear.

b. Initial Access Arrangements

[105] The applicant testified that immediately following the separation, the respondent refused to let him see the children for a week. I do not accept this testimony. There may have been 4 or 5 days when he was out of contact with the children. He had gone to Montreal after the final separation, and was there on January 2 for his first appointment with Dr. Nair. These facts do not support a denial of access. The respondent took the children to see their father when he returned to Ottawa.

[106] Having regard to the applicant’s own description of himself as being in a shambles, I also find the respondent’s conduct in relation to access between the father and children to have been reasonable during the first few months of separation.

[107] The respondent allowed the father access to only one child at a time, and for no more than five hours, allowing no overnights. Her explanation was that she was not getting updates from him about how the counselling was going and he was still showing signs of continuing anger. The applicant did not agree these restrictions were necessary. But he said he was trying to keep the peace so he followed her dictates. It is difficult to accept his criticisms of his access now, given that he did not voice them at the time.

[108] I do find the respondent imposed an unnecessary restriction on the applicant’s birthday visit with A.K.H. in July 2012. She insisted that she attend for fear that he might abduct the children. There was no objective basis for this concern. I also find that during this first year following the separation, the applicant’s time with the children was limited. I accept that the children did want to see him more and that there were some emotional transitions because of this.

[109] The applicant did not retain a lawyer until late fall 2012. When his lawyer’s letter arrived in December, the respondent reacted very badly to it. She called the applicant on December 12. The applicant recorded the conversation surreptitiously. The respondent told the applicant he was shameless, disgusting and low class. She threatened more than once to ruin his life and his parents’ reputation. If he did not tell the truth, she threatened to tell the world and their children that he was an abusive husband and then came after her for money. In this way, the respondent did insinuate that she would use the children against the applicant. She was very clear in stating that if he pursued her for money, or if he denied the abuse she says he perpetrated on her, she would tell the children what he had done.

[110] She did not threaten that he would never see the children again. In response to a question from the applicant, she did say, “If you think you will get overnight access to the children without proving your mental health you will have a war on your hands.” She went further and justified her position by reminding him that he had been suicidal and that suicidal men have killed their children before killing themselves. This remark was unwarranted. There has been no evidentiary support to suggest the applicant might harm the children in that way. It is an example of the respondent’s tendency to go to the worst possible scenario where the applicant is concerned.

[111] The respondent agreed in her testimony that she had been livid. She said she was disgusted by his allegations that she had abused him, and by his claim for spousal support. She explained that the applicant had previously told her he would not seek spousal support or property division and she regarded his about face as a betrayal.

[112] The applicant relied on this phone conversation as the first articulation by the respondent that she was prepared to use the children against him. He believes that she has made good on her threat. He also relies on the recording as providing a clear indication of how unreasonable and angry the respondent can become. I find she was extremely angry. She did threaten to involve the children, which is extremely improper.

[113] Despite the angry phone call, the applicant was able to arrange to see the children in less than a month. The access the respondent agreed to was limited. A temporary without prejudice order was made on consent allowing him to pick up A.K.H. on Tuesdays for one hour, and to pick up A.S.H. on Wednesdays for 1.45 hours. He also had A.S.H. on Saturdays for about three hours followed by A.K.H. for five hours. This was the extent of the access the respondent mother would agree to. It was unduly restrictive.

[114] Accordingly the applicant father brought a motion which resulted in an order dated September 25, 2013. Relying upon Dr. Leonoff’s first report dated July 2, 2013, the judge ordered access during alternate weekends from Friday to Sunday, alternate Wednesday’s overnight, and a visit on the other Wednesdays from 4 to 7 pm.

c. Dr. Leonoff’s first report

[115] Dr. Leonoff is a registered clinical psychologist who has conducted custody and access assessments in Ottawa for the past 35 years. He was appointed by the court to do an assessment in this case, with the consent of the parents. He has prepared eight written reports, all included in evidence in this trial. From the outset, he described the case as high conflict and complex.

[116] In his first report, he recounts the respondent’s description of her childhood. In part, she told Dr. Leonoff:

Her father was very traditional in his values and culture and tried unsuccessfully to impose this on his Canadian children.

Her father valued obedience and when he felt defied, he would react harshly. Sometimes, however, his temper was mood based. Basically, his expectation is that “things should happen his way.”

[She] believes that she feared her father as did her siblings.

Her father’s temper did not seem to stress her mother even though it was very hard on the children. Her mother’s loyalty was ultimately with her husband and not to her children.

Her sister took an overdose of pills at age 18.

[117] Dr. Leonoff administered and scored an MMPI-2 in relation to the respondent

[118] From the MMPI–2 testing done on the respondent and from the background she provided to him, he thought she had a heightened sense of need for safety. Her father and brother had frightened her. He thought fear played a role in her heightened reaction to the current situation, and why she feels a need to be very, very protective of the children. He wrote at page 14:

Although control and protection seem to be so highlighted in her personality, underlying fears in relation to endangerment are very high. When she becomes alarmed, she can fear the worst. As much as she appears to be a strong person (which she is in fact), she is also fearful and alarmist. This does not imply that she has no reason to be afraid but it does mean that once fear takes hold it would be difficult for her to shake.

[119] Dr. Leonoff observed A.K.H. felt a duty to inform him of certain things, reinforced by her mother at home. He wrote at p. 35

Nevertheless, [A.K.H.] demonstrates the family dynamic in that her contact with her father is filtered through her mother’s oversight and perceptions. [A.K.H.] worries that her father lacks the organizational control to manage the task of parenting. Of course, this is precisely her mother’s concern. It would be overly simplistic to imply that [J.H.] is imposing this negative view on [A.K.H.]. Rather, the children, and in this case, [A.K.H.], very much look to their mother as the protective gatekeeper. Hence, [A.K.H.] was simply expressing a family truth: father is not the equal of mother as a caretaker and, in fact, he might be deficient in his own right. [N.H.] would likely perceive this “truth” as a sign of his wife’s poisoning of his image in the children’s eyes. [J.H.] would see the “truth” as the self-evident conclusion of the children who have been the recipient too often of their father’s disorganized behaviour. It is a combination but has enough credence through experience to be self-evident for the children and their mother.

[120] Similar to his sister, A.S.H. expected that he would be asked to tell Dr. Leonoff what he felt or knew. A.S.H. said he did feel a “tiny bit scared” of his father when he was yelling. He hoped Dr. Leonoff would help his father with that. He stated he wanted to see his father more, with the provision that there is no more yelling. Dr. Leonoff wrote at page 40:

[A.S.H.] views his mission as protecting and supporting his mother against a father who instigated violent yelling. He needs to be the good son as an antidote to the “bad” father who is the author of the problems in [A.S.H.]’s mind. [A.S.H.]’s comments and perceptions have been formed over time and were not the result of direct-coaching. Nonetheless, he is certainly identified with his mother as a victim of his father and there is an underlying fear of identification with a father who is a source of contempt and rejection by his mother. This creates a development conundrum for [A.S.H.]. He needs a father to admire and on whom he can model himself. Yet, he has a father who is so bad a yeller in the family’s eyes that he merits police involvement.

[121] Based on his clinical interview of the applicant, his review of Dr. Hotz’s and Dr. Nair’s work and the MMPI-2 he administered to the applicant, Dr. Leonoff found a problem with anger, a tendency to blame and rationalize, to be overtly reactive, emotional immaturity and a lack of adequate behavioural controls under conditions of frustration. In addition, he thought the applicant had strong dependent features which characterized his attachment to his wife.

He wrote at page 31:

He was often intimidated and could not handle the frustration and rejection he experienced with her. I suspect that the yelling and sporadic violence reflected how powerless he left in the union. The angry outbursts would occur when powerlessness and helplessness overwhelmed him.

[122] Dr. Leonoff’s conclusions taken from pages 41-47 of this report were:

N.H.’s lapses in behavioural control were contingent on the bad relationship in which he found himself.

This will continue to represent a risk factor especially if he again finds himself in a frustrating, rejecting dependency in which he feels shut out and powerless. It is not inevitable though.

N.H. would likely benefit from a therapy that was more process oriented. He is still very defensive, denying and projecting of blame and this will work against the maturation process. On the other hand, he can evolve and would be expected to be better off outside of this frustrating union.

Yet, it is overly simplifying to accept his rationalization that he is mainly the innocent victim of a smear campaign meant to marginalize and control him.

J.H. has clearly been the mainstay in terms of family stability. She is the touchstone for the children and organizes the family. At the same time, she serves as a gatekeeper between children and father and her significant lack of confidence in N.H. has created a sizable barrier for the children.

As it stands, J.H. is so worried about her former spouse’s limitations that she cannot easily release the children to his care without deep worry or concern. The children know this well and in turn they blame their father and express low confidence in him. But they very much enjoy their dad and want to be close to him. In this regard, they need him and this is an important factor.

The children are very implicated in the family’s problems and the barrier separating them from what transpires between the parents is minimal at best. Each child is pressured and anxious.

Both children are being affected by the chronicity of the angst and uncertainty. They did witness violence and both were affected by the yelling they experienced. They have heard too much and the police have been involved too often not to ring alarm bells in the children. They hold their dad responsible and not their mother.

[123] Dr. Leonoff recommended shared legal custody, with final say to the mother, and with a secondary arbitration process the father could invoke for disagreements over major issues. He recommended the mother’s as the primary residence for the children and said the father should have alternate weekend access from Friday at 4 to Sunday at 6, alternate Wednesday’s overnight and an evening visit on the other Wednesday’s.

d. Major Access denials

[124] Despite the September 25, 2013 order, five major, unilateral denials of access by the mother occurred prior to trial. The first was in February 2014. No access took place for seven weeks until it was ordered to be immediately reinstated by Linhares de Sousa J. In her detailed reasons she found that both parents had contributed to the escalating conflict and that in none of the four incidents relied upon by the mother had the children ever been in the serious jeopardy the mother had alleged in support of her cessation of access.

[125] I agree with the motion judge’s assessment of the parents’ roles and responsibilities in these events. Even at the trial, neither of them seemed “to get it”. They each continued to present their actions and positions taken as justifiable in the circumstances.

[126] I do not intend to go into all of the factual disputes heard in that motion. But I did draw several conclusions relevant to the issues at trial. A letter the father sent to his then lawyer was an exhibit to his affidavit filed in the motion. He was cross examined about the contents of the letter. In response to a statement made by A.S.H. that he got more time with them than mommy, when they got home, the father wrote the parents’ names on the days of the calendar and had the children count the differential while he watched. He said A.S.H. became angry at his mother as he saw the truth unfold on the calendar. A.K.H. said “only 8 out of 31” and A.S.H. said, “I can’t believe it. I am going to kick her butt.” The applicant justified this as a calm exercise that taught the children how to discern truthful information for themselves.

[127] I do not accept his description. He clearly brought the children into the parental dispute, in a way that ended up denigrating the mother.

[128] The mother relied on what she says the children told her about this. It was apparent to me that she did not recount what the children actually said, but rather what she concluded from whatever they had said. In this instance her testimony was that A.S.H. (age 7 at the time) felt his father was vengeful against her and was taking his anger at her out against the children. Although she relied quite extensively on what the children told her, I formed the impression that I was often hearing not what the children said, but what she concluded had happened, or what she thought it meant.

[129] In the same letter the father refers to his questioning of the children about what their mother had alleged in relation to the nanny. “Your mom says M. is scared of me. What do you think? Your mom says she should call the police on me. Would that be nice?” The mother had made allegations about him following the nanny to the bus stop. He admits he asked the children about this. “Why did we go to the bus stop? Because Mom says it was to do something bad to M.. Do your think I would? Do you think it’s fair for her to write that?”

[130] Here, he was clearly inviting the children to take his side against their mother. This is highly improper. In testimony, he tried to justify it by saying he was sitting on the floor with them, hugging, explaining to them; he was not angry at all. In my view his attempted rationalization also showed poor judgment, or lack of insight, or both.

[131] In the letter, the applicant admits he told the children that their mother accused his parents of trying to kill her. In cross examination, he testified he had actually told the children that she said they had tried to run her over. He explained that he said “kill” in the letter to be emphatic. He described this as being “factual but emphatic.”

[132] In addition to very inappropriate parenting the applicant’s attempt at word-smithing and justification detracts from his credibility. This letter is even more revealing because the father apparently wrote it in defence of himself.

[133] The father described another direct request he made to the children to engage in the parental dispute. He said he told the children, “No matter what I do your mother finds some way to say it is bad and use it against me for you to have less time with me. I have been fighting so hard so you can spend time with me. …. If you really want more time with me, you need to tell her over and over again, and tell other people over and over again, everyone you meet, friends’ parents, your mother’s parents, M., school teachers, everyone….” To make it worse he then tried to manipulate the children: “Maybe I should stop fighting for you. Maybe you should just be with your mother and not with me. That is what your mother wants.”

[134] In hindsight the applicant agreed it was a bad idea to have said these things to the children. He explained he learned from what the motion judge said and stopped talking to the children about litigation issues. Unfortunately for the children, my finding is that he has not stopped.

[135] The motion also addressed the children’s exposure to parental arguing during A.K.H.’s dance recital on January 18, 2014. This was the father’s access weekend. To his credit, the father did allow the mother a brief visit with her daughter back stage before the performance. The mother was not satisfied and decided to go back again after the performance had started. She was followed by the father, with A.S.H. She told him to stop following her or she would call the police. She seemed validated by her son who then added, “Stop following mommy”. The father did stop. The mother did see A.K.H at the side of the stage where she gave her a hug and kiss. The mother testified, “It felt good for both of us.” This is one of several examples where the mother told the court how something felt for one of the children.

[136] Back in the auditorium, the father and son were sitting a few rows behind the mother and her parents. Unfortunately, the respondent’s father suffered a heart attack during the performance. Another altercation ensued in full sight of A.S.H. when the applicant jumped up to try to help. He was waved off by the respondent and her mother saying, “Get away from him.”

e. Dr. Leonoff’s Second Report

[137] The second report is dated September 23, 2014. Dr. Leonoff saw each parent four times, each child twice and reviewed additional information from the CAS and teachers. The assessment also addressed the four incidents that had been dealt with in the motion.

[138] At this time both of the children clearly expressed wanting more time with their father. They felt their mother was creating obstacles to their relationship with him. Dr. Leonoff said it was important to acknowledge those wishes, and he recommended extending the father’s weekends from Friday at 3 pm until Monday morning.

[139] Dr. Leonoff wrote at pages 20-21:

The second major argument stems from the fact that [J.H.] views herself as the guarantor of the children’s wellbeing, which then puts her on a collision course with [N.H.] who understandably wants a place as a meaningful and valid parent in his own right.

I would say that [J.H]. feels responsible for the children’s welfare whether they are with their father or not. She will need to learn to make room for their father in this task at least when he is serving as residential parent.

Unfortunately, [N.H.] tends to find a way to prove [J.H.] enough right to mount a case against him.

[N.H.] managed to attract the attention of the police with his uncontrolled frustration in the children’s presence and while driving a car. What better proof could [J.H.] have that her ex-husband is potentially volcanic?

[140] Dr. Leonoff concluded that the respondent remained highly protective and interventionist. He said at page 22:

In my view, she goes overboard although she was saved from judicial censure in court only because her ex-husband managed at least partially to make her case. This does not make it right, however, and it omits the fact that her excessive surveillance and oversight of [N.H.]’s time and relationship with the children helps stir the unfavourable reactions she then uses to judge him. She serves as more of an instigator than she realizes or acknowledges. In turn, this is pushing her children to ally with their father independent of his input. It simply drives them towards their father because they feel that he is at serious risk of being lost to them. The unilateral stopping of access was proof.

[141] Dr. Leonoff continued to regard the mother as capable in all aspects of parenting except with respect to the applicant and his relationship with the children. He recommended that she allow him autonomy when the children are with him and said there is “no place for her taking liberties with his access time even if she rationalizes that it is for the children’s sake.”

[142] He also recommended psychotherapy for both parents to help transcend the problems. He said at page 24:

Although Justice de Sousa asked for “ground rules,” it is hard to become specific when post-martial dynamics feed a family drama in which all parties feel fully justified. There are of course the tell-tale signs of dysfunction: lack of perspective, shrill chaotic scenes, enacted publicly, children suffering while parents insist they are protecting them from harm…[A.S.H.]’s rambling recitation of the changes required and [A.K.H.]’s plea for normality in her lifetime were heart rendering and point to the need for the parents to get a hold of themselves and the situation.

[143] I take note of two particular facts pertaining to the mother during this time frame. She had brought with her to the dance recital the New Directions report from 2011 “just in case” the applicant caused a problem. From this I concluded that she had not gained insight into herself from Dr. Leonoff’s first report. Additionally, in her discussion with Dr. Leonoff about her belief that the applicant’s parents tried to run her off the road, she noted that in her Indian culture, one does not leave a marriage. Her trial testimony escalated that by reference to the practice of bride burning in parts of India. From this I concluded that despite the passage of time, without incident, her present level of fear in relation to her former in-laws is even higher now than it was years ago.

[144] Dr. Leonoff’s recommendations, including a relatively small increase in the father’s access, were never implemented.

f. Second Access Denial; Dr. Leonoff’s Third Report

[145] The second unilateral denial of access occurred in February 2015. The father did not see the children for nearly four weeks. The mother based her denial of access on what she described as an “outpouring” from the children about their upset with access over the preceding months. She testified that they described being under immense pressure from their father, by way of his anger and rage to take his side in legal matters. She says they told her he was cursing and swearing about her, telling them to humiliate her, to tell teachers and other people how bad she was, all so he could get more time with them; that he made threats that if they told their mother about something that had happened; they would lose him.

[146] She also testified the children told her he had threatened to throw the cat out the door, the implication to her being that he meant to kill it, because it is an indoor cat. She said this was “the limit” for A.K.H. The children told her they were not going back. The respondent herself was afraid to send them back.

[147] After access had been denied for three to four weeks, the respondent suggested and the applicant agreed on a without prejudice basis to see the children under supervision.

[148] Counsel asked Dr. Leonoff to do an update to address this interruption of access. This report is dated April 14, 2015.

[A.K.H.] was tense at the outset and asked her mother to accompany her into the office. She advised her daughter to be open. After some general, neutral discussions,[A.K.H.] was content for her mother to wait in the waiting room. [AKH] relaxed quickly and began to tell me about her concerns. Her father scares the cat although not purposely. Nonetheless, he does demand that she pay attention while he goes “on and on” about their mother. According to [A.K.H.], her father links the children successfully “humiliating” their mother in front of others with obtaining more time with his kids. She provided a clear definition of the word “humiliate” and looked me in the eye when delivering its meaning of extreme embarrassment. Father has also threatened to throw the cat out the door if she did not pay attention.

[149] Dr. Leonoff also set out what A.S.H. told him:

[A.S.H.] repeated that their dad yells more at [A.K.H.] because she is older. He tells the children to humiliate their mom. He was yelling at them to stop petting [the cat] or he would throw the cat out the door. This might have been directed more at [A.K.H.] who knew to stop petting [the cat], who meows and is scared by the yelling. In contrast, the first supervised visit was excellent and dad behaved very well. [A.S.H.] attributed this to the presence of the supervisor. “Now I have to tell you before the motion goes”, [A.S.H.] explained, aware of the impending date in court. On the other hand, [A.S.H.] now feels badly because of the supervised visit, because he had a positive impression of dad, and hence, misses him. When I asked whether he thinks mom was right to stop the access, [A.S.H.] felt that this was the best decision because he could not stand being yelled at any more. Further, the children do not want to humiliate their mother because she is a good mom. He verified that his father actually tells them to humiliate their mother in respect to their grandparents and mother’s friends. When I asked why dad would want them to do this, [A.S.H.] reasoned that he wants them to know what their mother is doing, which [A.S.H.] feels is not valid.

[150] When A.S.H.’s session was over, his mother entered the room. Dr. Leonoff observed:

When [J.H.] entered at the end of the session, [A.S.H.] began to recite the litany of complaints against dad for her benefit. His tone was neutral and it was clearly for her approval. He wanted his mother to know that he had related these concerns fully to me.

[151] Dr Leonoff’s conclusion was that:

These children do not know what to do. They cannot handle a mother whose loathing, fear and distrust of their father is extreme and a father who continues to pressure his children, as if they could be the lynchpin that would free up access in his favour. The children are being harmed by a situation where…the legal process is hamstrung, including any chance to offer some reprieve or resolution. Each time I am involved, the stakes seem higher and the damage more visible.

No one could dispute that [J.H.] is a caring parent. On the other hand, she does not fully grasp the impact of her repugnance and mistrust of her former spouse on her children. She views herself as responsive and protective, which likely describes her usual style, but none of this applies to [N.H.] whom she deplores as a man and as a father.

[N.H.] continues to put his children in the middle and to task them to further his parental wishes, although he frames it as their cause. This tactic is akin to the straw that broke the camel’s back. The children cannot take any more as they live in a tinderbox under pressure that can spontaneously combust at any time. [A.S.H.] is developing anxiety symptoms at school in the form of inappropriate affect and behaviour while [A.K.H.] is being twisted into serving as her mother’s agent and her father’s judge while being deprived of a live-and-let-live childhood that would allow her to grow up at a usual pace. Both teachers noted that the children are showing significant anxiety and dysfunction in the classroom setting. This is a serious development.

[152] Dr. Leonoff could not conclude whether “humiliate your mother” was an actual phrase that the applicant used repeatedly to the children. He did think it was a “somewhat bizarre accusation” that their tone was less convincing and they were well studied. He thought A.K.H. often spoke from the positon of her mother rather than herself. He noted the message of the two children was “completely harmonized.” Dr. Leonoff concluded that the children are very aware and sensitive to their mother’s deep fear and distrust of their father. On the other hand, “Even if their father never spoke those words”, “there is truth to what they had repeated.” Their father “pushes them to advocate for more” time with him and they are caught between him, and “a mother who sees him as completely unfit to parent.”

[153] Dr. Leonoff recommended supervised access as a way that the children could see their father without aggravating their mother’s fears as to what bad things might be happening during access. He also saw it as a benefit for the father in the sense that it would provide him with some protection against false allegations. On April 16, 2015, Kershman J. ordered supervision for at least 6 months with a view to then gradually returning to unsupervised access.

[154] In this third report, Dr. Leonoff reiterated the need for the applicant to receive therapy, noting he had recommended this before but had no confirmation that he had complied. He also recommended psychological assistance for the respondent to “help build perspective and to understand her role in the family conflict.” He said at page 13, “Her deep convictions, personal history with [N.H.] and enmity towards him, and powerful protective reflexes with the children make perspective very hard for her to achieve. She will not likely advance if she sees a therapist not conversant or at least briefed on the situation. Access to [my] reports would be helpful.”

g. Supervised Access

[155] Access supervision did not meet Dr. Leonoff’s objectives or Kershman J.’s durational expectations. Supervision did not provide a solution for the family. The mother continued to obtain information from the children following their return from visits. During one visit, A.K.H. asked the supervisor to write the report and send it home with them, so she would not have to answer her mother’s questions about the visit. The mother a variety of complaints about the supervisors, saying they did not know their role, were aligned with the father, failed to intervene when they should have or kept poor or incomplete notes. In all, nine supervisors were retained.

[156] Nor did the father see any benefit to supervision. To the contrary, he felt supervision put a strain on his relationship with the children. He felt he was always under scrutiny which constrained him from parenting his children. He worried that if he corrected or redirected the children it would be reported to, or seen by, their mother as improper, leading to further access denials. Additionally, the supervision was expensive, costing him more than $27,000.

[157] Supervision continued until August 2016. The parenting coordinator was supposed to be involved in the gradual return to unsupervised access. There were delays in signing her contract and paying her retainer, which the applicant attributes to the respondent. The parenting coordinator was not ready to move forward in this regard until January, 2016.

[158] Disputes about what happened during access still arose. For example, the supervisor on May 10, 2015 wrote that on the return trip to the mother’s home, the father told A.K.H. that he would check to see if her homework was completed before the start of the next visit and that homework needed to be completed in order to have the visit. The mother testified that what the children told her was absolutely consistent with what the supervisor had noted. She says A.K.H. was very hurt by the remark. The father said the note was inaccurate. What he had said was that he would ask at the start of the visit if homework was done and if not, it would be the first thing to be done during the visit.

[159] I accept the supervisor’s note is accurate. I find the father spoke ill-advisedly, out of frustration, because homework was taking up so much of his access time.

[160] The supervisor on July 15, 2015 described the father as reading the children an email from the Mother telling him what clothing the children needed at his house. She asked him not to do this, but says he continued to discuss issues about the mother loudly and angrily while the children were present, and one child was crying. After a few prompts he did stop, but she wrote that it took about ten minutes to calm the situation down. When it was time to go, the supervisor noted that the father told the children, “You may not be able to see me after a while due to this incident.” This also appeared to upset the children.

[161] The applicant did not agree with this description of the visit. He testified that he did open the email and looked at it for his own reference but did not read it.

[162] The mother provided testimony about this visit too. She said the children had complained to her that they had virtually nothing to wear at their father’s house. She also testified that they told her they were very upset because their father was furious about her email. The mother testified as if she was repeating exactly what the children told her. On this occasion she describes them as saying that the supervisor had been amazing and protective of them, that it took quite some time before their father listened to her and he was quite aggressive as she tried to intervene. I doubt that the children said these words. I find her testimony reflects her own conclusion of what happened, derived from what the children said to her.

[163] I find the father’s reaction to the access supervisor’s intervention was disproportionate, indicative of the fact that he has difficulty accepting criticism. I also find that the father must have admonished the children in some way, because he testified that A.K.H. said, “we don’t tell her, she brought it up.” This visit also shows that there were detailed discussions between the mother and children. The mother’s testimony is an acknowledgment of this.

[164] The supervisor for the weekend of September 4, 2015 wrote that the children told her their father does not talk about legal stuff but that their mother questions them about their weekends with their father. Both children told her that they would like the supervision to stop and to have more time with their father.

[165] In response to this note, the mother said the children told her they felt they were being grilled by the supervisor. She testified that the children described their father as quite escalated and angry. She said they told her very specific negative comments he had made about her and her home, none of which are mentioned in the supervisor’s report. On this occasion, she emailed the supervisor to say it was inappropriate for her to have questioned the children about herself and what went on at her house, and that she had not reported on the father’s part of the conversation. The mother compared and contrasted what was written by the supervisor and what the children said to her. The mother wrote that one of the children “confirmed your questioning of them.”

[166] This email is revealing. I conclude the respondent did have detailed conversations with the children about what was in the supervisor’s report and about the visit. I find she withdrew her approval for this supervisor, in response to a report that suggested her children did not want to answer her questions about access, and wanted more, and unsupervised contact, with their father.

[167] This is also a good example of how the access supervision provided a new forum in which the parents continued their conflict. Rather than providing a safe haven for the children, access supervision simply provided the parents with a new venue in which their ongoing battle could play out. Neither parent was prepared to accept the accuracy of this supervisor’s report.

[168] Mr. Finnie was the access supervisor with the longest tenure. He supervised access from September 20, 2015 to January 11, 2016. Mr. Finnie was very well qualified to supervise. He holds a Bachelor in Social Work and a Master’s in Social Work, together with varied social work experience starting in 2008. He is registered with the Ontario College of Social Workers.

[169] Mr. Finnie’s general observation of the father was that he was caring, involved and showed the appropriate affection and responses to his children. He did observe that the father was frustrated with the system. He also observed that the children were usually resistant to doing their homework and piano practice. The father would ask them repeatedly to comply and would then raise his voice. He testified that most of the time the homework would get done.

[170] Mr. Finnie did intervene on October 7/8 when the father was angry at the children, after an hour of trying to get them to do their homework. He testified that the father did yell at them on and off over the course of an hour, for a cumulative total of 10 to 12 minutes in all. The father yelled at A.S.H.: Do you even want to be here? Mr. Finnie asked the father to step outside to avoid further escalation. Despite the outburst and raised voice, Mr. Finnie was not fearful for the children’s safety or his own.

[171] At some point the father made a couple of comments to the effect of, “I’m done”, “I’m ready to give up”. Mr. Finnie stated he followed professional protocol and took him outside to check whether this was suicidal ideation. He was satisfied that it was not and that there was no clinical concern to report.

[172] Mr. Finnie also disagreed with the father when he said he was going to take the children home to their mother early. He intervened again when they were all in the car. The father asked them if they wanted to stay or go. The children said they wanted to stay. The father asked, why? At this point, Mr. Finnie said “it doesn’t matter why, let’s go home.” And they did.

[173] I find this visit does not reflect at all well on the father. In addition to yelling at them, he was guilting the children and trying to make them choose between his home and their mother’s.

[174] The mother testified that the children told her after this visit that they were worried about the suicidal language their father used. They told her they were also upset by the threat to end the visit and having to plead with their father to continue the visit. Again, the mother testified as if she was using the very language used by the children. Throughout the trial, I had the impression that she was not telling me what the children had said but how she interpreted what they had said to her.

[175] The mother called or emailed Mr. Finnie with questions about what she had heard from the children: about specific incidents during a visit, challenging him on some occasions, asking why this was in the report or why this was not in the report. What she told him had happened at a visit often conflicted with Mr. Finnie’s own observations of that visit.

[176] The dance studio incident took place on November 1, 2015. The father had been upset by how the dance instructor treated his daughter, as described to him by other parents. He said he told A.K.H. he would speak to the instructor. A.K.H. did not want him to. She said she would ask her mom to pull her out of the class. The father decided he should speak to the teacher. The children waited in the car. Mr. Finnie sat in on the interview. Mr. Finnie’s testimony was that they were alone in an empty classroom with the dance instructor, that he did not participate in the discussion, the father did not raise his voice, the teacher admitted her response was more than had been required, and both she and the father agreed they wanted A.K.H. to remain in the class. Mr. Finnie described the meeting as animated, without raised voices.

[177] Very near the beginning of the discussion, at the father’s request, Mr. Finnie put a telephone call through to the mother so that she could participate. She testified that she heard Mr. Finnie intervene a couple of times. She described the father as quite verbally aggressive. She thought the instructor sounded stressed and that she was using appeasing verbiage, including giving an apology. The mother did not want to be aligned with what the father was doing so she excused herself from the call.

[178] Subsequently, the dance studio wrote to advise that as result of this incident A.K.H. would not be allowed back.

[179] Mr. Finnie said he was a little shocked when he read the letter the dance school sent because it was not the way he remembered it. He also testified that the mother’s email was quite different from his experience being there. He found it unnerving to read.

[180] I accept Mr. Finnie’s version of the incident. The respondent was not present throughout. The dance instructor did not testify. It is a fact that A.K.H. was not allowed back to this dance school after November 1, 2015.

[181] After the dance school incident, the mother took the position that she no longer approved of Mr. Finnie as a supervisor. She said his presence was upsetting to the children. That was not his observation. Once A.S.H. told Mr. Finnie that he thought he was a really good man “but we don’t need you.”

Third Unilateral Denial of Access

[182] The mother’s withdrawal of her approval of Mr. Finnie resulted in a three week hiatus in access while the issue was referred to and arbitrated by the parenting coordinator. Her ruling reinstated Mr. Finnie. I accept as correct the ruling of the parenting coordinator that Mr. Finnie had not anything that would disqualify him from continuing to supervise access. I conclude that the respondent was wrong to have objected to him and that she ought not to have discontinued the supervised access.

Fourth Unilateral Denial of Access

[183] The mother testified that there were no reports from Mr. Finnie of any explosions by the father, but the children did tell her he appeared to be afraid of their father, was submissive to him, and that their father continued to speak about her in a denigrating way.

[184] I asked the respondent if she was quoting the children. She replied it was not a quote but was pretty close. She added, “those words are accurate.” I do not accept the words “submissive” or “denigrating” were spoken by the children. If they were, from whom did they acquire this level of sophisticated language, in the context used? During the third re-opening of the trial the respondent testified that testing had shown A.K.H. to be gifted, and on the 99th percentile for language and comprehension. This information is hearsay, and without more does not change my conclusion that the respondent often provided her interpretation of what the children said, rather than their actual words.

[185] When Mr. Finnie arrived to supervise on Wednesday January 13, 2016, the children were not there. The respondent had cancelled access based on information received from the children about the preceding weekend access. The respondent’s testimony was that the father was extremely angry on account of a book report A.K.H. was working on for school. The book was about Nazi treatment of Jews and the respondent said the father used the story to try to tell A.K.H. that like the girl in the book, she was not thinking for herself. The mother stated: he was taking his anger out on her [A.K.H.] about the legal process, and it was as if she was the Jew and I was the Nazi. The mother also testified the children told her Mr. Finnie was not fulfilling his supervisory obligations. I find this is the mother’s interpretation of what they said to her, not the children’s own words.

[186] Mr. Finnie was surprised to hear that the mother had said the children were refusing to come if he was there, based on his personal experiences with the children. He never got the impression from A.K.H. that she thought he was “ineffective” or was “almost disgusted.” He denied that he worshiped the father or that he was afraid of him.

[187] Nor does Mr. Finnie agree with mother’s description of the previous weekend, January 8 to 10, as “not good” for the children. He had no concerns that weekend regarding the father’s care of the children. He heard the discussion about A.K.H.’s book report and the father relating it to present day issues but he did not hear the father accusing A.K.H. of not thinking for herself.

[188] This time the parenting coordinator consulted Dr. Leonoff. He wrote to her on January 26, 2016, in what is his fourth report. To prepare it, he reviewed the respondent’s detailed summary of what transpired at her home. He met with each child individually, and spoke with Mr. Finnie and to a CAS worker.

[189] His conclusion was that there had been no direct reference to the parental conflict and the children’s role in it. He disagreed that the discussion surrounding the book report warranted a cessation of access. Dr. Leonoff posited that when A.K.H. returned to her mother’s home with its pre-existing view that the father is suspect, his behaviour is suspect and the supervisors are apologists for him, then retrospectively the discussion took on another interpretation to her.

[190] Dr. Leonoff recommended strongly against removing Mr. Finnie. He said, “It will not end well if we went along with removing him based on what actually happened, or more accurately, did not occur.” He again emphasized that if the children have problematic feelings or experiences related to access, it should be dealt with in therapy and not by cessation of access. He said the only time access should be stopped should be by court order or by the CAS determining that a protection concern exists. Dr. Leonoff also said access should recommence immediately

[191] Sixteen days passed with no access. On January 28, 2016 Kershman J. endorsed that access continue with Mr. Finnie until a new supervisor was “found by the mother who was acceptable.” The mother took the position that she complied with this order because she did put forward the name of a supervisor. The father did not accept her proposal. The parenting coordinator agreed with the father’s positon. The respondent did not look for anyone else. She testified that all she had to do pursuant to the order was to name someone, not have them approved by the parenting coordinator.

[192] I found this testimony disingenuous. The mother had always exercised the right to approve or disapprove supervisors proposed by the applicant. More importantly, on February 9, 2016, Kershman J. referred to this in another endorsement: “I ordered access to continue as per the existing access order with Mr. Finnie until a new supervisor agreeable to both parties was in place.” I find the respondent did not comply with the order because she took no further steps to locate a supervisor acceptable to both parents.

[193] Dr. Leonoff’s “fifth report” is a letter to the parenting coordinator outlining that it is essential for the respondent to have confidence in the supervisor so that she will feel the children are protected. The parenting coordinator agreed and articulated a decision that Mr. Finnie should no longer supervise. This decision did not relieve the respondent of the obligation to locate another supervisor acceptable to both parties.

[194] There was no access between the father and children until the parenting co-coordinator identified Jonah Paritzky as someone who could supervise for the weekend of February 19 to 21, 2016. This visit was controversial.

[195] Mr. Paritzky testified that the father “threw a temper tantrum” when A.K.H. did not get ready for bed in time. Mr. Paritzky was unnerved, because the father’s mood had changed dramatically in an instant. He testified that the father announced in a rage that the visit was over. He sent the children to pack their bags. Upstairs he said directly to A.K.H., don’t you realize you are messed up? Don’t you realize what your mother is doing to you? A.K.H. started to cry. The applicant pointed at Mr. Paritzky and asked the children: don’t you know why he is here? He is here to watch me, and he kept repeating this.

[196] According to Mr. Paritzky, the father berated the children for not listening to him. He said, “You have to behave. If you don’t behave I will never see you again.” He said to Mr. Paritzky in the children’s hearing that the mother had told the children to be disobedient to sabotage his access. Mr. Paritzky says the father became more hysterical. A.K.H. pleaded with her father to calm down and stop yelling. Prior to this both children were reassuring their father that they loved him and that they didn’t want to go back to their mother’s. At one point A.S.H. said he would prefer to go back to his mother if his father continued to behave this way.

[197] Mr. Paritzky also described the applicant’s conduct towards himself. He said the applicant charged at him, more than once, stopping only one foot away. He called Mr. Paritzky “a nobody”. Mr. Paritzky was very uncomfortable and nervous. He testified that he had never been in a situation like that. There was a moment when Mr. Paritzky thought he might be physically harmed.

[198] Mr. Paritzky testified that the father kept insisting that he call the parenting coordinator and terminate the visit. Finally he did. It was after 11 pm. The father took the phone, and at one point, according to Mr. Paritzky, was screaming at the parenting coordinator.

[199] When Mr. Paritzky finished the call, the father had already put the children to bed.

[200] The father’s version of events starts earlier in the day. He said A.K.H.’s behaviour was oppositional throughout the day, including at the ski hill, the library and especially at bedtime. His conclusion was that just as Dr. Leonoff had predicted, the children had become adversely empowered by the replacement of Mr. Finnie as supervisor. This is why he asked Mr. Paritzky to call the parenting coordinator to terminate the visit. He wanted her to know that what Dr. Leonoff had predicted had come true.

[201] The father admits he told A.K.H.: you missed me so much, you know why the supervisor is here, why can’t you follow a few things to let the visit go well?

[202] The father testified that as he was pleading with Mr. Paritzky to make the call, unbeknownst to him, A.K.H. was coming downstairs when he said to Mr. Paritzky, “you don’t understand, my kids’ minds have been messed up.” He did not intend this to be heard by A.K.H. or as derogatory to her. He denies saying to the children words to the effect that if they reported this it will impact negatively on his access.

[203] The father says the parenting coordinator was yelling at him and said she was coming over to take the children back to their mother. A.S.H. came down and yelled, “I want to stay with my Dad.” The father said, he then said to the parenting coordinator, no you are not, I will put them to bed here. The father said he told the children they would be staying the night, and that they were happy to hear this.

[204] Mr. Paritzky agreed that the parenting coordinator had said she would get the children if necessary. Ms. D ’Artois was the parenting coordinator. She is a lawyer, called to the Ontario Bar in 1988. She practised family law until 2006 when she established a practice exclusively in family mediation, arbitration and parenting coordination.

[205] She testified in relation to the telephone call she received from Jonah Paritzky. She testified she could hear shouting in the background and became concerned for Mr. Partizky’s safety. For this reason she called 911 and asked to have a cruiser on alert. When the applicant took the line, he was upset, at the system, his loss of time with his children, said he was being treated unfairly and the supervision had gone on too long. He was yelling at her, and she also yelled at him at one point, telling him to calm down.

[206] Ms. D’Artois was questioned as to whether she had or had not told the applicant that she would go over to pick up the children. She did not think so, but agreed she may have and may have forgotten, given that the telephone call had woken her up. She was adamant that she had not said to the applicant, do not tell anybody what she said, or not to speak to anyone about what had happened. She testified she would expect him to speak to his counsellor and lawyer about it. I accept her testimony.

[207] She testified that she had seen the applicant explode during an intake meeting in her office. She described him as standing up, yelling, basically having a meltdown and then calming down. She described this as “going into left field” and then swinging back. The applicant denied this but his anger was palpable in explaining the differences of opinion he had with her. I accept Ms. D’Artois’ testimony.

[208] She had a similar observation during a meeting with him and Dr. Leonoff. She said he became very angry when he was discussing the litigation, the unfairness of the access and his frustration with the ongoing supervision.

[209] On February 29, 2016 Ms. D’Artois resigned her position stating that the process was unproductive. She felt the conflict was escalating beyond what she could manage and that parenting co-ordination was just adding another layer to the conflict.

[210] Her cross examination on behalf of the applicant was surprisingly aggressive. If the purpose was to suggest that the delays in lifting the supervision or her comment that she would go over to get the children justified the applicant’s behaviour during the February access weekend, I disagree.

[211] The applicant admitted that he cannot remember if he said all of the things attributed to him. I note the applicant had described this tendency to Dr. Hotz in 2011. Dr. Leonoff also testified that when the applicant is angry, his memory of what he actually did can be vague and muted such that he remembers what happened as less severe than it actually was, or, he may have no memory of it at all.

[212] I accept Mr. Paritzky’s description of this event. I find the applicant “lost it” emotionally with the children, and in their hearing with Mr. Paritzky and the parenting coordinator. The children were clearly impacted. It was very unfortunate for them to have to try to manage their father’s behaviour as they did during this outburst.

[213] Mr. Paritzky did admit to saying to the father near the beginning of the visit that a lot of separated father’s don’t stay in their children’s lives, or are looking for child or spousal support, and that he must have done something wrong to have had supervised access imposed on him. These remarks were clearly ill advised and should not have been said. They do not justify the father’s subsequent behaviour. Nor does Mr. Paritzky’s attempt to persuade the applicant not to end the visit.

[214] Mr. Paritzky completed the weekend assignment but declined to return thereafter. On March 4 the mother took the position that she was not going to permit any further access whether supervised or not. She scheduled a case conference in advance of an intended motion to suspend access. The next contact between the father and children was not until May 11, 2016 after Kershman J. again intervened.

[215] On May 3, at a case conference, Kershman J. detailed the supervised access the father would have from May 11 to May 27, and scheduled a further conference for May 31 to further discuss access.

[216] Mr. Andre was the new supervisor. He has a social service worker diploma from Algonquin College and a clinical supervision certification, together with almost 20 years work experience in the social work field.

[217] On May 11 his observation was that A.K.H. was overcome with emotion and excitement when she saw her father. He described her as beaming and saying this is the best day ever. She filled her father in on everything that had been happening since she last had seen him.

[218] Mr. Andre said A.S.H. leapt into his father’s arms. A.S.H. also said that this was the best day ever. Many words of affection and hugs were exchanged between father and son.

[219] I conclude that the children were very happy to see their father again and that the visit was a positive one.

[220] Although nothing untoward happened during the May 11 visit, on May 18 the mother dropped in at the CAS office. She testified that she did so to discuss the events of the Paritzky visit. She admits she was concerned the supervision might be lifted, “so were the children.” The timing of her drop in visit at the CAS in relation to the upcoming case conference and her admitted concern suggests she went there with a view to advancing her case for non-removal of supervision.

[221] On May 31, Kershman J. endorsed the record that there was an allegation by the mother that the CAS had opened a new file in relation to the children. Whether this influenced him or not, the fact is the judge did not lift supervision that day as the father had hoped, rather deferred the decision to a motion scheduled for August.

[222] Mr. Andre only supervised until June 12. He said he never saw a situation where the children were not safe. He heard the father raise his voice to the children, but only once did he feel he should intervene. This occurred during the last supervision he provided which was the weekend of June 10-12.

[223] On this particular occasion he said the father appeared quite frustrated. It was the last hour of the weekend visit. A.K.H. had been overusing her tablet. She said she forgot to set the timer, but neither he nor her father believed her. The father got angry and yelled. He complained that he couldn’t discipline the children properly because the last time he took a tablet away, he was then denied access for a long time. Mr. Andre said the children’s voices were also raised.

[224] Mr. Andre asked everyone to take a timeout to help diffuse the situation. His intervention included providing coping strategies to the children and the father, talking about boundaries to the use of tablets, and consequences. He also steered the conversation away from inappropriate areas. Within the hour, Mr. Andre said the mood had changed significantly. Everyone went on a bike ride and were back to normal.

[225] He recalled the father saying he was fearful if the CAS found out he would lose access again. In response A.K.H. said she is nervous about whether she will see her father again.

[226] On June 15 Mr. Andre received an email from the mother’s lawyer. The email referred to his “supposed supervision”. It stated that he appeared to be complicit in allowing the father to breach his obligations under the existing orders, that he apparently stood by and allowed him to discuss adult and legal matters with the children. The email specified that this included encouraging the children to denigrate their mother and coaching them to outright lie to her. The email concluded by saying “please do your job.”

[227] Mr. Andre denied these allegations. I accept his denial. I agree with him that the language in the email was rude and insulting. I find that Mr. Andre intervened appropriately during this episode and was able to assist the father and children to return to normalcy within a reasonable period of time.

[228] Mr. Andre also received an email from the mother on June 15. He took it as intended to intimidate him. I agree. The respondent made reference to what may have been missing from his resume and clearance checks related to a criminal record and mental health issues. She suggested she was seeking clarification so that her records would not be misleading to any other professionals who might see them.

[229] Mr. Andre resigned as supervisor. A new supervisor was required with the result that the children and father missed a further 2.5 weeks of access in June 2016.

[230] CAS worker Ms. Stainthorpe met the father and Mr. Andre on June 10, 2016. She noted that the father got really upset, kept talking over her and interrupting her. She described him as becoming increasingly agitated, his voice got louder, and he was having difficulty staying calm. She noted feeling a bit intimidated by his manner and told him so. She also described him as being on the verge of tears.

[231] As part of the investigation, Ms. Stainthorpe attended the mother’s home. She described the children as thriving, doing well, and having a strong relationship with their mother.

[232] Ms. Stainthorpe also interviewed the children about the June weekend. As reported to her, the children found the episode upsetting, and felt their father was critical of their mother. They both felt he was directing them what to say and what not to say to their mother. A.K.H. reported that her father said to his parents, “why don’t we all move to Montréal because I’m never going to see the kids again.” To the children, he also said, “you want to lose me again, fine.” She said that her brother cried, then asked can we please bring this to a conclusion. She said her father added, he didn’t want to lose them again.

[233] A.S.H. told Ms. Stainthorpe most of the weekend was good apart from this incident.

[234] I find that the father did act inappropriately during this visit in response to his daughter’s overuse of her tablet. He did lose his temper and conduct himself in an angry fashion. Based on what Mr. Andre heard him say, I find that he did make inappropriate references to the consequences for continuing access if the CAS reported heard about the incident. The children were obviously upset. I am unable to find that he said and did all of things attributed by the children given the basis on which their statements were admitted.

[235] I find that Mr. Andre did go beyond his retainer and perhaps beyond his professional qualifications when subsequent to resigning he endeavored to make recommendations to the CAS that would in his view help ensure that the children continued to see both parents. The email bordered on opinion evidence. I assign it little, if any, weight. The respondent relies on Mr. Andre’s email to the CAS, when compared to his supervision notes, as proof that he was unable to speak the truth to the applicant. I do not agree. Mr. Andre did intervene in the applicant’s presence when necessary to do so. His role was not to provide a running commentary on what he was observing, or thinking to the applicant, or to anyone.

[236] Mr. Nettleton was the final supervisor. He supervised four visits. Mr. Nettleton’s testimony was provided to the court by transcript and by audio video recording. I found him to be very credible and clearly distressed by the treatment he received from the applicant. He was candid in acknowledging that he did not think supervision was a good idea and that he had hoped it would end when the motion scheduled for August was decided. He also agreed that the anger displayed by the applicant was directed at him not at the children. Despite his personal reluctance he also agreed to supervise one additional three hour visit because the applicant told him the children had to see the psychologist. Mr. Nettleton did not want to stand in the way of that.

[237] During one visit, Mr. Nettleton was with the father and children at Walmart. They met a family friend who said something that upset them; Mr. Nettleton had not heard what was said. Later at home, the father and children began discussing this. Their voices were getting louder and louder. Mr. Nettleton asked them to lower their voices. This made the applicant very angry. He confronted Mr. Nettleton and was yelling at him, how dare you, who do your think you are, and so on. Afterwards A.K.H. came in and made a sympathetic remark to Mr. Nettleton, along the lines of, he (her father) has a short fuse.

[238] Mr. Nettleton was candid in stating that on reflection he thought he ought not to have intervened on that occasion.

[239] Mr. Nettleton supervised a visit over the weekend of July 8 to 10, 2016. After attending a soccer game at Lansdowne Park, the group went into a nearby Pet Smart store so that the children could look at the cats.

[240] The father’s version of what happened is that the children bumped heads in the store. A.S.H. said he was sorry but A.K.H. was still angry. The father says he tried to calm her, but this only caused her to transfer her anger to him. He decided to give A.K.H. some space and went out of the store. He says he sat on a bench where his father and Mr. Nettleton already were. A.S.H. also came out. Five minutes later A.K.H. followed. The father spoke to her about her behaviour and she ended up storming back into the store. At this point the applicant says his father got up to follow her. The applicant asked him not to, but he did not seem to hear. For this reason the applicant went after him, gently tugged his shirt to get his attention, and continued to tug on his shirt to bring him out of store. While holding his father’s shirt the applicant says he also gave his head a tilt, in a “let’s go” motion.

[241] The applicant testified his intention was to give A.K.H. some alone time in the store to help her calm down.

[242] The grandfather does have a serious hearing impediment which is not fully resolved by his hearing aid.

[243] The applicant’s father confirms his son’s description of the incident. Both men agreed that A.K.H. would not have seen this happen.

[244] They also agreed that the family proceeded to a nearby park for an hour or so. The children played happily. They were also happy and content on the drive home. Mr. Nettleton did not speak to them about the Pet Smart incident during any of this time

[245] Mr. Nettleton’s version of events is dramatically different. He testified that he was in the store talking to the grandfather when the applicant brushed past them and went outside. Mr. Nettleton turned to speak to A.K.H. but she did not answer and appeared upset. A.S.H. told him that his father was upset. Mr. Nettleton recalls that he and the children went outside where the applicant was sitting on a bench. The applicant stated he was upset because A.K.H. had slapped his hand away. She replied that she had brushed it away. Then, A.K.H. stopped talking and started walking back into the store. The applicant said he was not going in to get her, she could stay in there if she wanted to. My impression from his testimony was that Mr. Nettleton did not perceive this as a strategy the father was adopting. Mr. Nettleton offered that he would go in to get her. The applicant became angry with him, and soon was yelling at him, asking who he thought he was, he should not be doing this, he was not the parent. At this point the grandfather said he would go in to get her, and did so. The applicant followed and pulled him out of the store by his shirt. Mr. Nettleton described it as an aggressive pull. He testified that the applicant was not just leading his father out of the store. Rather, he said there was an obvious lean indicative that the grandfather was being pulled.

[246] At this point Mr. Nettleton thought they should leave. They did move away a short distance and sat down. The applicant and A.K.H. had a more civil discussion about the situation but once again, the applicant started raising his voice at Mr. Nettleton, asking what he was writing, and what he was thinking. Mr. Nettleton described the applicant’s tone as very accusatory, loud and “in his face”. He said a volunteer security guard came over to ask if everything was ok and that the applicant shooed him away, saying everything was fine.

[247] According to Mr. Nettleton this was when the children decided that they wanted to go to the park. For much of the time the children played and the three men sat watching them. There was very little conversation.

[248] When they arrived home the applicant complained of chest pain and went to his room to rest for an hour and a half until about 20 minutes before the time to return the children. The applicant’s testimony is that this had nothing to do with the Pet Smart incident but rather he was having shortness of breath and heart palpitations for which he had been advised to rest.

[249] Mr. Nettleton testified that when the applicant came down stairs he started in on him again. He said he had been reflecting on why it was that he got angry at Mr. Nettleton. He had realized it was because when Mr. Nettleton started he had allowed the respondent to manipulate him by deferring her approval of him as a supervisor to Dr. Leonoff. As result the father missed a Wednesday visit. The applicant went on to express his other frustrations. Mr. Nettleton was dependent on the applicant to drive him home. He testified that he was just tired of being treated this way. In the car, the applicant did express some remorse for the way he had treated him, but Mr. Nettleton did not respond. The applicant also asked him what he would report. Mr. Nettleton testified that he replied, “Nothing” but it was a lie. He upset himself by saying this, but he did not want to be yelled at again. He wanted to get home and get out of the car.

[250] Mr. Nettleton withdrew as supervisor later that day.

[251] The applicant is critical of Mr. Nettleton and disagrees with his testimony. He points out that Mr. Nettleton had intervened improperly on the first occasion. He challenged his credibility on the basis he had never mentioned to the applicant that he had any concerns about what happened at Pet Smart. The applicant also said he was inaccurate about some details such as who left the store first. The applicant denied asking what he would put in his report about what happened at Pet Smart.

[252] Mr. Nettleton may have been inaccurate as to some details but not in a way to impact his overall testimony. I believe the applicant verbally challenged and badgered him as he described. I believe the applicant did apply more force to his father to remove him from the Pet Smart store than asserted by the applicant and his father.

[253] My finding is there was no justification for the applicant’s treatment of Mr. Nettleton. The applicant was simply unable to control his temper and emotional response and he took it out very inappropriately against the access supervisor who had no responsibility for the applicant’s predicament. The fact that the applicant’s anger was not directed at the children does not change the fact that the children were exposed to at least parts of the angry outbursts against Mr. Nettleton, and that A.S.H. probably also saw his father pulling his grandfather out of the store. Nor did the applicant take responsibility for his bad behaviour. He offered excuses that either blamed Mr. Nettleton or focused on himself as a victim of circumstances.

h. Dr. Leonoff’s sixth report

[254] Dr. Leonoff’s sixth report was ordered by Kershman J. following the Pet Smart incident. It is dated August 2, 2016. In it Dr. Leonoff described the children as “growing up in a conflagration that has shown nasty persistence to continue unchecked over the past three years.” Although he had to address both the Mr. Paritzky and Mr. Nettleton experiences, he did note that many access visits were spent without incident and went perfectly well. The applicant can spend quality time with his children, but when he feels overwhelmed, powerless and the situation can become volatile. Even though the children do want to see him “after the dust settles” the ill effect is present in anxiousness as to whether he can provide meaningful security. A.S.H. had described this as feeling worried about what might happen and not liking the feeling. A.K.H. has turned to ritual to try to find a sense of order and control.

[255] Dr. Leonoff’s opinion is that problems will continue until the father learns how to avoid repetition of any such reactions.

[256] Sadly, Dr. Leonoff concluded that neither parent could do better. He wrote that, “if I was wrong in this conclusion, then the positive change would have occurred already.”

[257] Dr. Leonoff was now able to observe an “important ingredient” to the mother’s “side of why the dynamic continues in such a raw and desperate way.” She told Dr. Leonoff it would have been very different if she had taken steps to have the applicant charged criminally in the past. Her belief is that he has never been held accountable. Whenever Dr. Leonoff tries to find a place for the father with the children, despite his emotional disinhibition, she sees that once again he is “getting away with it.”

[258] Dr. Leonoff recommended that supervision should be lifted. He recommended a change to the father’s parenting time: one weekday should be overnight, and he should have the children with him two out of three weekends but from Saturday at 10 am until Sunday at 3 pm. Dr. Leonoff suggested the father might have better control of himself for the shorter duration visits. He also recommended specific therapy provisions:

1. A.K.H.’s therapy with Dr. Sharon Francis Harrison should be protected from court involvement.
2. The parents should not email Dr. Harrison or communicate with her unless she asks for the consultation.
3. Initially, A.S.H. should also see Dr. Harrison at a frequency that she recommends.
4. His previous recommendations for therapy for the parents continue to apply more than ever. He would help arrange this treatment, which needs to be insight oriented and self-examining.

[259] On the return of the father’s motion later in August 2016, Corthorn J. lifted the requirement of supervision.

i. Unsupervised Access, September 2016-January 2017

[260] The applicant says all the unsupervised access in the fall of 2016 was wonderful and without incident. He has provided extensive photographic evidence in support of this contention.

[261] The mother disagreed. To the contrary, she says a multitude of events culminated in the children’s refusal to see their father after January 4, 2017. She says the children told her about an explosive incident in the car after the first unsupervised weekend. During the fourth visit according to what she was told the father was very angry with A.K.H. and threw her onto her bed.

[262] After the fifth visit, the mother says the children told her their father said things to them like your mother is telling you not to listen me, and that he was also putting immense pressure on them to side with him in the legal situation. By December, the mother says A.K.H. was often in tears saying she did not want to go. The mother’s conclusion was that A.K.H. was on the receiving end of more of her father’s anger, whereas A.S.H. was more adept at avoiding his father’s anger by agreeing with him or by denigrating her.

[263] In December, the mother observed a lot of crying, low mood and clear distress/fear of access from A.K.H. The mother testified that she pushed as hard as she could in December for the access to take place. But A.K.H’s emotional and mental health was getting worse and worse. The mother thought she was on the edge of a breakdown.

[264] The mother asserted that the Christmas visit was a bad one. She testified as if she had been there, saying the applicant was in a negative mood from the start of the visit. She had sent a present for them to give Oreo, the cat. One of the children told her that their father said, your mother doesn’t even like the cat; “she is fake.”

[265] The mother said A.K.H. told her that her father cursed and swore about her. He called her a mini version of her mother. A.K.H. told him, “if you are an f’ing bitch then so am I. And how could he think this about me?” She said the respondent pounded her bed and knocked her glasses off. This was unintentional but it hurt and she was very angry at him.

[266] This is in contrast with the father’s description of the Christmas visit. He says there were no issues at all except limiting the amount of screen time. He denies saying the mother was “fake”. He denies exploding at A.K.H. or calling her a mini [J.H.]. He denied knocking her glasses off.

[267] For the January 4 visit, the mother’s testimony was that A.K.H. really did not want to go. She did go after her mother told her it would be a short visit, and they would talk when she got back.

[268] After January 4, the mother says the children refused to go back to see their father. The first time they refused the mother said she did not push as hard as she had been doing, because she was afraid it would break A.K.H. The mother then said, seemingly out of the blue, that risk of suicide was a deterring factor. This was based on her observations of the extreme state A.K.H. was in.

[269] Since then, the mother asserts the children have been adamant they will not see their father because of his anger, the fear it creates in them, and the extreme anxiety to A.K.H. due to the visits. They had no contact of any type with him, until a telephone call, on March 16, 2017, just prior to the adjournment of the trial.

[270] By now, the respondent had the experience of two judges reinstating the applicant’s access after her unilateral termination of it: Justice Linhares de Sousa in April 2014, and Justice Kershman in April 2015 (with supervision), and again in January 2016. Additionally, the parenting coordinator’s award in November 2015 had reinstated access with Mr. Finnie continuing as the supervisor. The respondent also had the benefit of Dr. Leonoff’s January 26, 2016 report with its very clear message that she must stop terminating access on a unilateral basis.

j. The Fifth Denial of Access

[271] During the fall of 2016 the CAS had made the decision not to investigate any more complaints made by either parent. The decision was based on their file review, information from the parents, from Dr. Leonoff, and from the most recent access supervisor. The CAS told the parents that future referrals from third parties would be considered.

[272] On January 10, 2017 a referral to the CAS was made by A.K.H.’s therapist, Dr. Harrison. Dr. Harrison said A.K.H. had described emotional harm by her father, and was now refusing to see him. In this report Dr. Harrison said A.K.H. told her that her father denigrates her mother, calls her a bitch, bad mouths her and says everything is her fault. A.K.H. felt the need to defend her mother, and so got the brunt of her father’s anger. She said he has called her a little [J.H.]. It appears that A.S.H. was also brought in to see Dr. Harrison because he was reported to have told Dr. Harrison that the father said to A.K.H.: you must be sick in the head to take so long to finish your homework. A.S.H. also reported that their father makes them feel guilty by saying things like he will move to Montreal, you won’t have a father, or don’t you love me?

[273] The father maintained that this referral was contrived by the mother, specifically to circumvent the CAS decision not to receive complaints from the parents. The appointment with Dr. Harrison was not contrived. The date was advanced two days because of the respondent’s expression of urgency.

[274] The mother sat in on the session between A.K.H. and Dr. Harrison. It would have been preferable had she not. On January 20, 2017 the mother brought the child to see Ms. Sullivan, a counsellor who works with children who have witnessed their mother’s partner abuse in the home. Ms. Sullivan explained that the mother asked her to see A.K.H. because she knew her and she needed immediate support. Ms. Sullivan has only met A.K.H. 3 or 4 times. A.K.H. told Ms. Sullivan she didn’t want to go to her father’s home because he was still getting angry. Ms. Sullivan recommended taking A.K.H. to CHEO to obtain a diagnosis, especially with the concern of self-harming.

[275] In February 2017, the respondent asked Ms. Sullivan to call CAS on her behalf. She wanted her to say that A.K.H.’s problems were the result of violence in the father’s home but Ms. Sullivan could not say that. A.K.H. has only said to Ms. Sullivan that her father has yelled or become angry.

[276] I find that in taking A.K.H. to see Ms. Sullivan who was actually less familiar to her than Dr. Harrison, followed by her request to call the CAS, the respondent was looking for additional third party support for her fifth cessation of access. The respondent would also know that Ms. Sullivan might testify at trial, whereas Dr. Harrison would not.

[277] The mother emailed Dr. Leonoff to ask if he could help. He suggested she look to other health professionals, such as the family physician.

[278] On January 10, the respondent signed consent forms so the school social worker could meet with A.K.H. While there she spoke to the social worker for 45 minutes. The social worker had never met A.K.H. but immediately made a referral to the CAS based on what the mother told her. The report included the mother’s opinion that A.K.H.’s anxiety is as a result of going to see her father, that it is the access that needs to change to fix the anxiety problem.

[279] The mother also made an appointment for A.K.H. to see her pediatrician, Dr. McConville, on January 16. She wanted him to intervene with the CAS and lawyers by telling them that A.K.H. could not tolerate access. She denies saying she wanted the relationship terminated or asking him to take steps to remove the father’s rights to the child.

[280] A.K.H. told Dr. McConville she could not go back to her father’s. Dr. McConville said he couldn’t take a position on access because he had not met the father. Instead he suggested medication, but the mother reported that A.K.H. didn’t want that based on a friend’s experience. The mother also testified that both she and her daughter felt, what is the point of medication if she had to keep going back to the source of her fear and anxiety. The respondent added, “she and I were both very disappointed he would not take a stand.”

[281] Dr. McConville did say in the presence of A.K.H. that he would call the CAS, but not for the purpose requested.

[282] The applicant views these steps as part of a concerted effort by the mother to obtain third party support for cancelling his access with the children. I agree. I do not criticize her for seeking help for her daughter. But it is apparent that what she was trying to do was to direct them as to what they should say and do. This is qualitatively different than seeking their advice. And, while Dr. McConville and Ms. Sullivan both gave advice, the respondent did not follow it at that time.

[283] Dr. McConville testified about this meeting. On January 16 he observed A.K.H. as being quite distressed, more so than he had seen before. Her symptoms of anxiety had increased. She reported pulling her hair, experiencing difficulty in going to school, difficulty in completing tasks and in her focus and organization. Dr. McConville recommended medication to address A.K.H.’s level of anxiety, but the mother did not agree.

[284] During the appointment Dr. McConville said both the mother and A.K.H. told him they wanted him to intervene in the custody case on A.K.H.’s behalf. His reply was that he could not, nor did he have grounds to. A.K.H. had not reported physical harm by her father, rather verbal issues, a short temper and feeling like she is walking on egg shells when she is there.

[285] CAS worker Ms. Towns returned Dr. McConville’s call. This was Ms. Towns’ only involvement with this family. She made a note of what he told her during the conversation as the call progressed. She also had an independent recollection of the conversation, and confirmed her note was accurate to her recollection of the phone call.

[286] There were important differences between Ms. Towns’ notes and Dr. McConville’s oral testimony. Ms. Towns wrote that he told her that the mother wanted him to intervene to remove the father’s rights to the children, “to get rid of dad.” Dr. McConville’s testimony was unclear as to whether this had been said, and if said, by whom. His observation was that both mother and daughter were talking and saying the same thing.

[287] Ms. Towns’ reported that Dr. McConville told her the mother had declined the anti- anxiety medication saying the anxiety is entirely environmental and removing dad would solve the problem. But Dr. McConville testified that he thought he, not the mother, had used the word “environmental”.

[288] The mother’s testimony was that she was only addressing the current situation with Dr. McConville, not a permanent solution. She said that she and A.K.H. both wanted him to intervene to support halting the access at this point in time. Nor does the mother agree that Ms. Towns’ note is entirely accurate as to what she said. “We asked him to intervene to halt the access but not to remove all his rights.”

[289] I observed Dr. McConville as reticent to testify that he had said anything to Ms. Town’s that might be construed as a negative remark made by his patient’s mother. Nonetheless, it was clear from his testimony that the respondent held the father responsible for A.K.H.’s difficulties and was angry with Dr. McConville’s refusal to do what she wanted him to do.

[290] I find that the respondent did convey to Dr. McConville that it would be best for A.K.H. to stop seeing her father. Dr. McConville responded, “that is not a solution.” I find that when he recommended anxiety medication, the respondent declined it, saying “removing the father’s access would solve the problem.” I find that Ms. Towns’ note of what Dr. McConville reported to her was accurate as to the impression Dr. McConville got from the mother namely that she wanted the father out of the picture. The impression she gave him was not that this would be short term or time limited.

[291] The CAS was also contacted by A.S.H.’s school principal, on February 1, 2017. She reported A.S.H. came to her office the day before, was very emotional and said he always believed that his father could get angry but now believes that he could seriously harm him. He did not provide any examples in relation to this statement. Some insight into why A.S.H. said what he did was provided by Ms. Turpin’s testimony. He told her he was afraid his father would come to the school. He said he is going to hurt me, he is following me, and I can’t even go to tae kwon do because he is going to be there. A.S.H. also said his father is going to hurt Mom and A.K.H. too. A.S.H. did not tell her how he knew these things. Since he had not seen his father and his father was not doing the things he was afraid of, I infer that he had developed these concerns while in his mother’s environment.

[292] This was the first time the topic of physical harm by the applicant to the children had been raised. A.S.H. had not seen his father since January 4. The applicant submitted that the respondent had prompted A.S.H. and/or the principal, but this was denied by both of them.

[293] At this point, the trial was commencing in a matter of days. The CAS decided not to investigate Dr. Harrison’s referral, relying on a number of considerations. Service Director, Ms. Savoia, testified that an application under the CFSA had been discussed but the CAS did not want to interrupt the trial in that way. Nor did the CAS want to interview the children. The children had been interviewed so many times it was thought that a further interview might be harmful to them. And, the children were under potential parental influences such that the CAS thought it would be difficult to assess the credibility of what they might say.

[294] Although the CAS decided not to intervene it did not agree that the father should not have access. Rather the CAS was always concerned that denial of access created a risk of emotional harm to the children.

[295] The CAS wrote both parents a letter dated February 9, 2017. It set out their conclusion that the children had been negatively impacted by both parents’ behaviours. The CAS thought that instrumentally and physically the children were safe in either home, despite some disclosure of yelling by the father and of yelling and inappropriate physical discipline by the mother. The letter elaborated that there was confirmed inappropriate anger by the father toward or in presence of the children and confirmed inappropriate and relentless exposure of the children to the mother’s own concerns regarding the father. The clear message was that the children’s emotional and psychological health was being compromised by the continuing unresolved hostility between the two parents.

[296] The final reason given for standing back was that the CAS felt it had nothing to offer the family over and above what had already been done. The CAS advised the parents to mitigate their hostility or the CAS may have to consider alternate care arrangements for the children. Both parents were told what this meant: kin placement or bringing the children into care.

[297] The respondent took strong issue with Ms. Savoia’s comment that in January, February 2017 the CAS had more concerns about the mother than the father. She suggested this might have been because Ms. Savoia was under a mistaken belief.

[298] The respondent testified she went to the CAS in January 2017 to request a meeting with a “higher up”. She knew Dr. Harrison had made a referral to the CAS but no one had contacted her. She met with Ms. Savoia, and urged her to interview the children. She told her that A.K.H. expected to be interviewed. The mother felt Ms. Savoia blamed her for the fact that A.K.H. knew the CAS had been contacted and would not let her explain that this information had come from Dr. McConville. Even though A.K.H. had heard Dr. McConville say he would call the CAS, the appointment with him was at the mother’s instigation. Nor need the mother have told A.K.H. she was going to the CAS that particular day when A.K.H. saw her leaving the house, and “guessed” where she was going. This is when A.K.H. said, she wanted to go with her mother.

[299] I conclude Ms. Savoia’s concerns went well beyond what might be related to any misunderstanding about how or why A.K.H. knew that the CAS was contacted in January 2017.

k. Conclusions re respondent’s willingness to facilitate contact between the children and the applicant

[300] The respondent has shown herself unwilling to facilitate contact between the children and their father. Every year starting in 2014, she unilaterally cancelled access for extended periods. No judge ever agreed with her that she had reasonable grounds to halt access. On two occasions, in September 2014 and January 2016, Dr. Leonoff urged her to stop cancelling access.

[301] Neither the court orders nor the psychologist’s recommendations resulted in any change in the respondent’s belief that she could cancel access if she believed it was the right thing to do. Even around the clock supervision was inadequate to persuade her that the children could be safe in their father’s home. True, the applicant had blow-ups under supervision in October 2015, and February, June and July 2016. I agree these were upsetting and worrisome to the children. But the children were not in danger. The access ought never to have been terminated by the respondent on account of those events.

[302] Regrettably, I have reached the conclusion that despite what she says, the respondent is not supportive of the children having a relationship with their father. She is over-reactive and hyper vigilant for the reasons Dr. Leonoff has provided. She not be trying to turn the children against the applicant or coaching them, but her loathing, fear and unshakable belief that he is an unacceptable parent, are such that she has time and time again interrupted access when she should not have.

Counselling Received by the applicant

[303] The applicant went to see Dr. Sodhi in March 2015 in response to a termination of access. Dr. Sodhi has twenty years of clinical counselling experience. She attained her Ph.D. in 2002 in Adult Education and Counselling Psychology. Her report dated January 13, 2016, indicates the applicant came to see her for supportive counselling for stress/situational anxiety related to ongoing custodial and parental alienation concerns, and for assistance in implementing consistent self-care strategies. She reported that the prevalent themes discussed with the applicant were with a view to providing “ insight regarding how parental alienation has affected [him] and his children, [his] inability to protect his children from their mother’s ambiguous parenting, and how [he] has been repeatedly undermined as a father.”

[304] Dr. Sodhi’s sessions with the applicant totalled over 90 hours. They evolved into assertiveness training, resiliency training and emotional regulation. She described the applicant as a model client: self-aware, knowledgeable, receptive to strategies, willing to change. She did not see him as an angry person. She has never seen him angry. Rather, she described him as balanced and mild. She described his focus as all about his children.

[305] In terms of information from sources other than the applicant Dr. Sodhi reported that the applicant updated her on Dr. Leonoff’s reports. He did not give her the reports but would hand her a part to read, or would tell her what was in it.

[306] Overall her conclusion was that the applicant has made tremendous progress. She said he still felt overwhelmed as things happen. At such times he stagnates and they work on emotional regulation, the need for which arises from his fear of loss of his children.

[307] She has also helped him with techniques to help address A.K.H.’s anxiety and OCD behaviours.

[308] Dr. Sodhi did ask the applicant about spousal abuse at the outset of her involvement. From what he told her, she thought he reacted naturally to what was going on in his life at that time. He did not disclose to her that he had hit his spouse. She seemed very surprised when this was raised. She was unaware he had told Dr. Nair that he had been physically abusive to his spouse for 15 years. The applicant did however tell her that he had been a victim of physicality during the marriage.

[309] The steps the applicant has been taking with this counsellor are limited by what he did not tell her and by his failure to provide her with copies of Dr. Leonoff’s reports. To address the requirements Dr. Leonoff had set out for the applicant, Dr. Sodhi needed to read all of his reports.

[310] The letter Dr. Sodhi wrote on January 13, 2016, identified mitigation of parental alienation as a main reason for the applicant seeking supportive counselling. Most of her letter addresses parental alienation issues. Dr. Sodhi wrote in April 2016, that she had concluded that her patient was the “target of a campaign.”

[311] My conclusion is that Dr. Sodhi has adopted the applicant’s “facts” and works well with him to assist him, in that context. Dr. Sodhi acknowledged she did not challenge him. I find she was not providing the psychotherapy that Dr. Leonoff recommended for the applicant, namely to address emotional immaturity, inadequate behavioural controls under conditions of frustration; by way of therapy that is insight oriented and self-examining, all in the context of addressing his contribution to the family problems.

[312] I also find that the applicant has not gained insight into his personal responsibility for the prolonged parenting issues and their impact on the children. Rather, I find that the applicant did not agree with Dr. Leonoff’s observations and conclusions about himself, and he did not share the reports with the counsellor who was ostensibly to help him address those issues.

Counselling Received by the Respondent

[313] The respondent gave extensive testimony with respect to the steps she took to ensure that she kept any negative feelings she had regarding their father from the children. These included delving into this with her counsellor, and self-reflection. She said she pushed her counsellor to push her on the feelings she had of fear of what he would do next to the children.

[314] Her testimony in this regard was not borne out by the two counsellors who testified on her behalf.

[315] Ms. Pinhey testified that the respondent called her in March 2015. The reason for her call was her concern about her children’s access to their father, based on his past behaviour. The only note Ms. Pinhey had of a face to face counselling session with the respondent is dated June 9, 2015. On this occasion the respondent said that Dr. Leonoff had recommended she get counselling about her feelings about the applicant. The mother did not tell Ms. Pinhey she was projecting her feelings onto the children. They did talk about messaging the children and the mother always assured Ms. Pinhey she was giving them positive messages. The June 9th note ends with the comment that the respondent will call for support or an appointment as needed. There were some subsequent phone calls, but none of the notes indicate that counselling was provided as recommended by Dr. Leonoff.

[316] Ms. Pinhey only saw Dr. Leonoff’s report of January 26, 2016, which dealt with the book report.

[317] Dr. Meier is a registered clinical psychologist. His first meeting with the respondent took place on July 29, 2016. Her presenting concerns were how slowly the custody case was moving and the effect of the applicant’s behaviour on her and her children.

[318] Dr. Meier had additional sessions with the respondent on August 5, September 9, September 19 and October 27, 2016, and then once more on April 12, 2017, for a total of six sessions. They also had four telephone conversations, on April 21, 27, 28 and May 3, 2017.

[319] Dr. Meier had read all of Dr. Leonoff’s reports.

[320] After interviewing her and administering standard tests he concluded that that she had no unfinished business from childhood and that the trouble she was having was situational. He did not think that she required personal therapy but that she needed supportive therapy given the situation she was in.

[321] He viewed the respondent as acting reasonably and with common sense, and that she always wanted the best for her children, including to have a relationship with their father. That said, he acknowledged that it was always in the back of her mind whether the children would be safe, when the next big blow up would come, and to be protective of them.

[322] Dr. Meier testified that most of his work with the respondent has been to develop her relationship with her daughter. I concluded that Dr. Meier had not directed himself to the work with the mother that Dr. Leonoff determined was necessary. The supportive counselling Dr. Meier provided has not addressed the key contribution the mother brings to the dysfunctional dynamic in this family.

[323] It is noteworthy that the respondent started to see Dr. Meier shortly before the expected trial date in September 2016, stopped seeing him soon after the trial did not proceed, and then did not see him again until April 12, 2017. No other date had been scheduled for the respondent to meet with Dr. Meier when he testified. It was unclear to me whether he knew if he would resume seeing her. He was asked whether he would see her after the trial, and his answer was “we’ll see, don’t cross the bridge until we have to.”

[324] To some extent Dr. Meier took on the role of advocate for her the respondent. She asked him to, and he did write to the CAS advocating that the temporary supervised access to A.K.H. should be lifted.

[325] Dr. Meier described that what he would do next in this case, would be to involve the children so that he could understand each child and his and her needs. Then he would reach out to the father to become part of the process, to at least learn coping skills for handling A.K.H.

[326] This testimony created the impression that perhaps he thought he might undertake work with the entire family. This would clearly be inappropriate.

[327] I find the respondent does not realize she has important work to do as described by Dr. Leonoff. She stated by way of denial to the suggestion put in cross examination that she had grilled the children and said negative things to them about their father, “I am pretty perfect. I have been practising for years.” Her tone was sarcastic, yet adamant.

[328] It was Ms. Savoia’s view that the children had been relentlessly exposed to the mother’s concerns about the father. The mother disagreed. The mother testified that when the children came home and told her about troubling, scary behaviour at their father’s, they may see a look of concern on her face, but she is guarded, and watches what she says. In these situations, she will not shut them down; she will listen to them. She said, she says all the right things to them. Her approach is to not minimize what they are telling her, but to not attack the relationship with their father. Even though she may be livid inside, she believes she can and does internalize her alarm.

[329] She allowed that when the children were younger they may have seen an outward expression of her fear of their father. The respondent did admit the children have found her on occasion crying in her room. She did acknowledge the children do know their parents do not get along, and do know that she does not have positive feelings for him. So, she agreed it must impact them. But here again she maintained that the evolution of what they are reporting is based on his own behaviour because she has only improved in this regard.

[330] Given the respondent’s very limited acceptance of the impact her extremely negative view of the applicant has on the children, it cannot be expected that she would have seriously addressed her contribution to the parental dysfunction as identified by Dr. Leonoff. I find she has not done so, with either Ms. Pinhey or Dr. Meier.

[331] Dr. Leonoff’s opinion, which I accept, is that the impact on the family of the mother’s views of the father has not abated over the years of his involvement.

Some Observations of the Applicant

[332] The father presents himself as a calm, understanding, and compassionate person, a spiritual man of depth. He describes himself as being very in tune with his children and their feelings. He mentioned more than once that he teaches his children no good ever comes from retaliation. To help A.K.H. manage her anxiety he taught her to use “me moments” which is a form of meditation to assist in self-calming. I conclude that some of the time he does match this description but not consistently. The inconsistency is sufficient that the children do not know what to except from time to time. When he deviates, it is significant enough that the description “walking on egg shells” describes how the children feel about being with him.

[333] The father’s view of his responsibility for all these years of litigation is extraordinarily limited. The only thing he could think of doing differently was this: he could have let the children act up and not parented them as a normal parent would, had no rules or boundaries, to avoid things being taken out of context and used in the litigation. He was asked what he could do to stop the allegations that he yells at his children. His answer was that the reporting to the mother should be stopped, and she should stop parading the children to third parties.

[334] The applicant had great difficulty addressing his own bad behaviour. He deflected some allegations made against him rather than address them directly. He was reluctant to make admissions against interest. He was hostile and angry during his cross examination. He over talked counsel frequently. He was argumentative.

[335] The applicant was very focussed on blaming the mother and others who disagreed with him.

[336] His antipathy towards the respondent was palpable. It was extreme enough to cause him to give absurd answers to some questions. In reference to the events at the respondent’s home on March 16 and April 6 he was asked, if A.K.H. was threatening to jump out of his second floor window, would he want to stop her. He answered yes, of course, he would take all necessary steps to stop her, unless he had created or exacerbated the situation. He was asked whether calling 911 is appropriate if all else fails. His answer was, only if he was not the cause of the problem to start with.

Some Observations of the Respondent

[337] At times during her testimony the respondent appeared furious. In particular, during cross examination, she was visibly angry. She articulated her disgust with some questions. She utilized a number of techniques in an effort to control the questioning.

[338] The respondent’s hostility to the applicant was palpable. One question was directed to whether she would agree to provide him weekly updates on the children. She was then asked what she would want in his shoes. She replied that she could never imagine herself in his shoes with his anger and temper. On another occasion she was asked if she could credit him for trying to get A.K.H. to go on a visit with her. She replied, you are asking too much of me.

[339] She demonstrated her reluctance to treat him as a parent when she said she would to have consult counsel before answering whether she would provide him with weekly updates or with certified copies of the children’s identification documents.

[340] I observed the respondent to be very reluctant to make even minor concessions that might favour the applicant. In April 2013, A.S.H. had a tae kwon do tournament at the Brookstreet Hotel. The respondent called the police saying the father was chasing her. The father denies this. Four police officers arrived and surrounded the applicant in the parking lot. The respondent would not say whether, if the children had seen that, it would have traumatized them.

[341] Following the 2014 Christmas school vacation with the father’s family, A.K.H. wrote a glowing description of it for school. She called it, “My Super Epic Christmas Vacation.” The respondent could not remember seeing this. If she had, it would not have changed her mind about the negative things she felt had happened during the vacation.

[342] Her distrust of the applicant was demonstrated when she took A.S.H. to two different physicians in the belief he may have been bitten by a dog while with his father. The applicant told her it was a scratch not a bite. The respondent testified that he wasn’t close enough to prevent the dog from pouncing on A.S.H., so inferentially, he would not know, and someone had told her he hadn’t seen it happen.

[343] On June 20, 2013, Dr. McConville saw no sign of a bite. The next day she took A.S.H. to Dr. G. with the same question, and got the same answer.

[344] The respondent acted contrary to the temporary court order in September 2015 when she made appointments for the children to be seen by a counsellor specializing in children who had witnessed partner violence against their mother. She admits she did not tell the father. She maintained she did not have to, because he was the perpetrator of the domestic violence and his consent was not required. Her testimony was that she was given this understanding by the counsellor.

[345] The counsellor, Ms. Sullivan gave different testimony. She said she told the mother the counselling service did not require a written consent from the other parent, but the mother needed to be sure she was legally compliant. She said she advised the respondent to check her “legal” obligation and to be legally correct.

[346] I do not believe that the respondent actually thought she did not need to comply with the temporary order which required her to consult with the applicant. She had legal counsel when the order was made, and in September 2015. I find she acted purposefully in keeping this information from the applicant and in not seeking his consent.

[347] In April 2017, A.K.H. told her father that her mother had prevented her from going to see him. The mother responded to this in her testimony by saying, “A.K.H. is unable to speak the truth on that.” In another response, she said, “A.K.H. is unable to speak the truth to her father.” What was completely absent from the respondent’s consideration was whether A.K.H. might have felt prevented from contacting the father, by something her mother said or did.

[348] A psycho-educational test had been scheduled for A.K.H. in April 2017. Both parties were going to attend. The mother had confirmed her attendance with A.K.H. several days prior. While A.K.H. was on her way to the appointment with her father she texted her mother not to come. The mother described this as the pattern the applicant requires: agree with me or face the consequences of an angry man. Again, the respondent gave no consideration to the possibility that A.K.H. herself might simply have felt unable to be with both her parents at the same time. This would have been her first time seeing her mother since she had gone to her father’s on April 6. Perhaps she was reluctant to have that first meeting with her father present.

[349] My point is simply this: the mother almost automatically blames the father. She is not open to any other possibility.

[350] The mother presents herself as supportive of a loving relationship for the children with their father and with the paternal side of their family. She maintains that she has always done everything reasonably possible to facilitate the children visiting their father.

[351] Despite this testimony, her actions speak to the contrary being true. She spent much of her time talking about the negative: how deficient he was as a parent; why the children shouldn’t be with him. She has persisted in cutting off access without legal authority or objective necessity. She still regards the unfortunate disruptions in his access as the result of his anger and limitations as a parent. Dr. Leonoff unequivocally stated that in his view there had been no justification for the applicant to cut off access. He gave this advice clearly during the litigation. Every judge confronted with a breach of the access order has ordered it restored immediately.

[352] My ultimate conclusion with respect to the respondent is that she has no insight into or understanding of her contribution to this sad state of affairs. She reserves to herself the entitlement to be the final authority as to whether the children will or will not see their father.

Other CAS Involvement

[353] The Ottawa CAS has been involved with this family off and on, since April 2012.

[354] Mr. Hashi was the first social worker. During his involvement the only allegation of physicality came from the father who told him the mother had slapped A.K.H. Mr. Hashi interviewed A.K.H. on August 30, 2013. She told him that her mother sometimes says negative things about her dad, that her mom hit her a few times, or squeezed her chin, and once slapped her on the mouth and her lips bled. She said, don’t tell mom I said that, I don’t want to upset her.

[355] She also told him her father yelled and screamed at her.

[356] Mr. Hashi followed up with the mother on October 28, 2013. She denied ever slapping her daughter on the mouth. She denied using any physical discipline. In her trial testimony she recalled that 2-3 years ago the children were fighting. She tried to separate them and her nail nicked A.K.H.’s lip. A.K.H. thought she had slapped her, but it was an accident. I found it unusual that she remembered this incident at trial, but did not think to mention it to Mr. Hashi in October 2013.

[357] Mr. Hashi was also involved in February 2014 due to the mother’s decision not to send the children for access. Mr. Hashi interviewed the children about the precipitating incidents. After doing so, he told the respondent he did not agree with the suspension of access.

[358] During that conversation with A.K.H. Mr. Hashi asked her if she felt like she was in the middle of her parents and she said immediately “yes, very often.” She also told him that she sometimes lies to her parents. He asked her why and she replied, she does not like to make her parents upset.

[359] During this period of access denial, the children told Mr. Hashi they missed their father. He also met them on the day after the court had ordered the access reinstated. Both children said they were very happy and excited that visits with their father would resume soon.

[360] Mr. Hashi next interviewed the children on March 3, 2015 because the mother had again terminated access. A.K.H. told him that her father had been acting up for about a month. He was scaring the cat which scared her. She said he yells, talks about mom and talks about court. Mr. Hashi quoted A.K.H. as saying, “He uses us to go against mom”. She also said her father told her she had to “humiliate” her mother. On this occasion A.K.H. told Mr. Hashi that she is more comfortable with her mother. A.K.H. added that her father cools down easily and is funny, playful and helpful with her homework. But she wished he would stop talking about legal matters and stop get getting mad at her mother.

[361] In his meeting with Mr. Hashi, A.S.H. said his father had said he would throw Oreo the cat out if they did not listen. He said his father yelled at them at every single visit. A.S.H. added that his mother says their father does not deserve more time with them.

[362] Mr. Hashi testified that he thought A.S.H. had memorized what he would say to him.

[363] The father’s explanation about the cat was that the children had not been doing their homework. He told them if they did not do their homework he might give the cat to the humane society. I do not accept that qualified testimony. It is probable the father told the children to do their homework or he would get rid of the cat.

[364] Mr. Hashi himself had never seen the father acting inappropriately to the children. He visited the father’s house many times when the children were there and he did not see anger or any safety issues for the children. The father had expressed himself to Mr. Hashi a number of times in an angry way.

[365] CAS worker Donna Stainthorpe interviewed both children on May 5, 2016. This was during another interruption of access.

[366] A.S.H. told Ms. Stainthorpe that his father uses the F word in describing the mother. He said his father swears even if a supervisor is present. He also said that his father yells, but had not recently.

[367] None of the access supervisors included a note about the father swearing whether at all, or in reference to the mother.

[368] A.K.H. reported to Ms. Stainthorpe that there was no physical discipline at her father’s but that she did not like it when he yelled. She used the words “verbally violent” in reference to her father. A.K.H. also said to the social worker that she “feels safe with mom and safe most of the time with dad.”

The S. family witnesses

[369] The applicant’s brother, sister and father all testified on his behalf. They all commented on what a wonderful father he is. They supported the applicant’s testimony that during marriage, the respondent was disrespectful to him, she was in charge and he did what she said. They also said that she yelled all the time at him and the children. Nothing they had seen would have predicted the outcome between the father and children, where they are allegedly refusing to see him. They do not describe the applicant as an angry man. He did not yell and scream at them, or act disrespectfully towards them.

[370] The sister lives in California and described the family visit to her home in 2011. She said the mother raised her voice and was very rigid and strict with the children. She saw her pull A.K.H. off the couch by her arm several times.

[371] Dr. S. was present during the last visit before the mother cancelled access in January 2017. He said it was a good, happy, loving visit and he was shocked when the children did not show up for the next visit.

[372] He denied trying to run the respondent over with his vehicle.

[373] He described a brief argument between the applicant and his sister over the cat at Christmas time. His sister is allergic. The issue was where in the house to keep the cat. After 10 or 15 minutes, they agreed the cat would stay in the applicant’s room.

[374] Dr. S. confirmed his son’s version of the Pet Smart incident. He also agreed with the applicant that when he attended Dr. Leonoff to tell him about it, Dr. Leonoff fell asleep. I was not persuaded that Dr. Leonoff did fall asleep during this session.

[375] I did form the impression that Dr. S. tried to minimize some events he had witnessed, in his son’s favour

Other Witnesses called by the Respondent

[376] Nicole Turpin is the school principal where A.S.H. attends now and where A.K.H. previously attended school for five years. She testified that what stood out most is how much A.K.H. changed over that time, from a very bright, happy child very quiet with to obsessive traits that impacted her school work. A.S.H. changed too. He was more reactive, not as happy, was more nervous and clingy to teachers.

[377] Two interactions with the father also stood out in Ms. Turpin’s memory. The first took place about three years ago. He was very agitated, angry and aggressive to the point she asked him to leave her office. His concern was that she was taking sides between the parents, which she stated very clearly, she was not.

[378] The second time he came in she found him intense and “in her face.” She asked him to leave but he did not. She asked him if she would have to call the police, at which point he did leave.

[379] Ms. Turpin testified that she was fearful because of the intensity of his anger.

[380] She also explained that she made two reports to the CAS about these children, under her statutory duty to report. The first was on March 10, 2015. Based on a report from the recess teacher she had both children to her office. They told her they were very upset about what their father had said on the weekend about the cat. The report was made because they had said they were afraid. A.K.H. also said in a sad voice that she wanted to be away and to live in the forest.

[381] Ms. Turpin was not aware that the children had not seen their father for two weeks when they made this statement to her.

[382] Her second report was made on February 1, 2017. A.S.H. came to her office. She described him as anxious and shaking. He told her he was afraid his father would come to the school, he is going to hurt me, he is following me, and I can’t even go to the tae kwon do because he is going to there. A.S.H. also said his father is going to hurt Mom and A.K.H. too. Ms. Turpin reassured him that he was safe at school.

[383] Ms. Turpin was not aware that A.S.H. had not seen his father since January 4, 2017.

[384] The principal did not recall advising the mother about this conversation with A.S.H.

[385] It was suggested to Ms. Turpin that she had belittled the applicant in the hearing of other parents, and had told him he was not allowed in the school because he was not the custodial parent. Ms. Turpin had no recollection of doing either. She also maintained that he was listed in the Ontario School Record as the children’s father. There was an extensive dispute about this; not only to suggest the mother had not listed him, but, I perceived to suggest that Ms. Turpin had engaged in an attempted cover up, and/or falsified school records. Neither suggestion was established to a balance of probabilities.

[386] The applicant disagreed with Ms. Turpin. He continues to a make an issue of whether he is on the list as a parent or not. He said he was in her office only once, not twice. He did not agree he was angry or aggressive towards her.

[387] The respondent’s friend, Ms. Carter also testified. They have been very close since 2004. Their children are similar ages. Ms. Carter observes the respondent as an excellent mother in all respects. She admires her very much. Ms. Carter said the mother is supportive of the visits. She described the respondent’s relationship with the children as very patient and loving. She has seen her send them to access and return from access on a number of occasions. She did not ever hear her grill them after a visit. She would stop them after a bit if they spoke negatively about their father. Or she would say this is adult talk, not for you. She has heard her tell her children not to argue with him, just agree. Ms. Carter agreed that these days the respondent views the applicant as inherently angry and abusive.

Dr. Leonoff’s Mid Trial Update

[388] Dr. Leonoff was mid testimony on March 17, 2017 when court was advised that A.K.H. had gone to the hospital with her mother on an emergency basis for what was described as an anxiety attack. After receiving written submissions from counsel, on April 4, 2017. I ordered that Dr. Leonoff was to be provided with the hospital record and that he should see A.K.H. for one or two additional sessions so that he could provide the court with an update as to her current psychological status, including in comparison to when he last saw her. Specifically this was not to illicit any new recommendations or statements from the child as to her views or preferences.

[389] Pursuant to this order I received two letters from Dr. Leonoff, dated April 17 and May 9, 2017. The applicant objected to the admission of some of the contents of the April 17 letter which described his behaviour at A.K.H.’s first appointment with Dr. Leonoff. I agree that the references to information relayed to Dr. Leonoff by his receptionist fall outside the scope of my order. I allow Dr. Leonoff’s own observations of the father during his session with A.K.H. These observations are properly part of the foundation to his opinion as to the child’s current psychological status.

[390] Dr. Leonoff noted that the applicant remained in the room for half the session, such that he was not left with sufficient time on his own with A.K.H. Dr. Leonoff described the father as being in an excited, emotional state, strident and mistrustful of Dr. Leonoff. He said he spoke at length in an “unfiltered diatribe that did not in any way spare [A.K.H.]”. In the child’s presence he reviewed the events of March 17 in detail, stating that none of what the mother had told the police was true. He underlined that the children have had no choice but “to tow the party line”. He had a sense of “triumph” as he observed that “the truth is coming out.”

[391] The father also discussed a prior incident where he said that the mother had dragged A.K.H. naked over a carpet.

[392] The respondent disagreed with Dr. Leonoff’s description of him in the interview room. He said he gave him some background, and tried to leave, but A.K.H. did not want him to. He described himself as emotional but not “excited emotional.” He did not say that he mistrusted Dr. Leonoff. He agreed he had questioned Dr. Leonoff’s statements that he already had the CHEO reports. He said in so many words “tow the party line” and “the truth is coming” out but denied he said it with a sense of triumph. Instead he said: “I exhibited clarity.” The applicant acknowledged saying he was getting the feeling that A.K.H. did not want to talk to Dr. Leonoff, because everything gets back to her mother.

[393] I accept Dr. Leonoff’s testimony. The acknowledgments made by the applicant are consistent with what Dr. Leonoff described, but minimize what he said and did. The applicant was hostile and argumentative under cross examination about this interview. His anger at Dr. Leonoff was palpable. I formed the impression that his anger affected the reliability of his testimony.

[394] Throughout the session with Dr. Leonoff, A.K.H. remained curled in a chair in the fetal position. She was mainly silent but she did say that her mother had planned to stop access in January. Dr. Leonoff described this as “obviously a major allegation.” He wrote that the tension was extremely high at this moment as A.K.H. had committed herself to a position that directly opposed her mother. After the father left the room, A.K.H. remained in the fetal position on the chair so that her head was hidden. Dr. Leonoff sat close by and spoke some reassuring words to her. The child fell asleep and when the hour was over, he had to wake her up. She smiled broadly when she woke up and her mood was light. She said, “I was supposed to tell you what mom did to me” And, “I don’t know why my dad said I don’t trust you- it’s not true- I trust you”.

[395] Dr. Leonoff found the truncated session very disturbing. He wrote:

Twelve year old [A.K.H.] is the vulnerable link or conduit through which a war is being waged. Whatever vestiges of a custody conflict remain, my clinical instincts reverberated to the child protection concerns. The situation is critical in my view. [A.K.H.] cannot cope with what is happening and, in this session, her primitive defense, to sleep, offered the only way out. There was no use for her to communicate because she is not allowed a space independent of her parents’ war of attrition and the never ending imperative to provide the goods on the other. She might tell on her mother, as she once told on her father, but this provides no exit. It just reverses the polarity and leaves her squeezed to the degree where any sane person would want to jump out a window.

She found [her] little repose therapeutic. She was communicating precisely what she needed to say, which I would interpret as the inability to experience safety wherever she lives within her parents’ orbit.

[396] Dr. Leonoff reviewed the CHEO record with respect to March 17. He gave this opinion:

[A.K.H.]’s aggression towards her mother and, also, her brother is an increasing issue when her coping resources are exhausted. This would represent a state of emotional depletion, associated with desperation and severe anxiety. It would imply that normal anxiety defenses as well as compulsive behaviour rituals (OCD) were insufficient to handle what she was experiencing.

I note that when she arrived at the hospital, she became calm and went to sleep. The hospital represented safety. Sleep is the most primal of defenses.

As I understand from what was indicated at trial and reiterated in the CHEO notes, the context was that she had just spoken to her father by telephone, which she had not done for several months. There must have been increased pressure during the trial based on the lack of contact between the children and their dad. The March 17th incident illustrates the explosion over the pressure and divisiveness to re-engage her dad. This likely confirms that [A.K.H.] was reacting to a sudden shift in maternal pressure to comply with the court ordered communication and visits.

[397] As already noted I directed that a copy of Dr. Leonoff’s letter be delivered to the CAS, so that it could address the concerns he had noted.

[398] Dr. Leonoff met again with A.K.H. on May 4, 2017. She had now been residing at her father’s home for about one month. A.K.H. described the events of April 6 to Dr. Leonoff as follows:

In terms of the incidents that led to #911 calls leading to the shift in residence, [A.K.H.] could not explain what she was feeling in either incident. Her view was that these were provoked solely by her mother whom [A.K.H.] feels overreacts and literally sits on her. When I used the term “anxiety attack,” and asked whether this type of reaction was a problem in other situations for her, [A.K.H.] clarified that this was her mother’s term and not her own. “The most I did was yell at her to stop,” [A.K.H.] stated, totally denying any active participation in either incident. Yet she acknowledged that she might have “freaked out” but if this occurred it would have been secondary to her mother’s behaviour. In [A.K.H]’s recollection, her mother instructed her brother to call #911 and told him what to say, “and everything.”

When the police accompanied her to her father’s, [A.K.H.] stated that she felt happy to see him and the cat. She agreed that there was no natural bridge to follow between her parents. She offered her comments in a matter-of-fact manner and there was little elaboration in her narrative.

[A.K.H.] stated that her sleep was generally good; better than at her mother’s despite her comment of a short sleep the night before the session. She noted that she is doing well at school and attending more regularly. [A.K.H.] communicated in response to a question that she feels emotionally comfortable and happy, and is not bothered by sadness or butterflies in her stomach.

[A.K.H.] wanted me to understand, however, that what occurred was not a meltdown but a scene created by her mother who was sitting on her. Her anger was clear at this juncture.

Although [A.K.H.] acknowledged that she opened the bathroom window when apparently confined there by her mother, she asserted that this was “a symbolic gesture” and that she was never suicidal. Further, she stated that she does not suffer from claustrophobia. Her mother would not let out of the washroom and she opened the window for air, according to [A.K.H.]. [A.K.H.] reiterated that her mother has sat on her several different occasions and when this happens she cannot breathe. Although father yells, he does not hurt her physically. [A.K.H.] then stated spontaneously that she wants to remain at her father’s home for the time being.

[399] A.K.H. told Dr. Leonoff in response to his question that she has no idea why she takes the brunt of the family conflict. She added that she feels that there is no way out. Remarkably she closed her eyes and again fell asleep. When she woke, she said she had been thinking about the sleepover camp she attended last summer and hoped she could go for a longer time this year.

[400] Dr. Leonoff’s conclusions as of May 9 were:

1. [A.K.H.]’s coping resources are taxed to the maximum trying to handle a persisting family crisis. Her allusion to camp, however, suggests that she welcomes opportunities to be away from the family turmoil …
2. My impression is that [A.K.H.] is doing better in her father’s home now as compared to that tumult of what occurred at her mother’s house after contacting her father. This might be expected, however, as much as it is the calm after the storm as well as an opportunity for reconciliation with a loved parent. Her subdued and somewhat flatter tone reflects the general strain under which she is still functioning.
3. She tends to efface her own contribution to volatile incidents after the fact as well as denying her own explosive side that seems to put her at the center of this second tier of the crisis.
4. Although in this session her mother was clearly being blamed, [A.K.H.] tends to alternate as to which parent is to blame.
5. She has re-found her father, which is very good for her but now she is at complete odds with her mother…Despite the reprieve, however, [A.K.H.]’s psychological stability remains precarious.
6. The long-delayed and overdue phone contact with her dad, unleashing her desire, triggered the fight that occurred in two parts. [A.K.H.] viewed her mother as opposing contact with her father; sitting on her lest she make a break for it…
7. [Her] denial of her own aggression, I believe is a significant fact in her ongoing distress. In this regard, denial makes it less likely that she will develop adequate controls in the short term and the aggression itself reflects how insecure and conflictive her primary attachments have become over the course of this parental struggle. As was evident in the first interview, gaining contact with her father can produce its own severe stresses. In this sense, her attachments are insecure and she relies on situational alliances rather than trust in which she can jump from one side of the deep parental spilt to the other. This works against emotional integration and synthesis, however, and weakens her coping capacity overall. Hence, the OCD fills the gap and provides some facsimile of order and integration despite its draining demand on her.

The re-opened trial: First Re-Opening

[401] As already noted, I allowed the applicant to re-open his case when the trial resumed in May, to address events that had occurred starting in the late night of March 16. It was not until the period of adjournment, that all of the details became known to him.

[402] The father testified that during the evening of March 16 the children telephoned him. They spoke for about 30 minutes. After an initial awkwardness the conversation was very pleasant and concluded with “I love you’s.”

[403] The father also testified that A.K.H. told him she knew January 4, 2017 would be the last visit. She said her mother had told her. She also said her mother had made it clear she did not want her to call her father. A.S.H. asked his father if he still was doing tae kwon do. The father said no, because I was worried about how you felt. He asked A.S.H. what he would have done if he had been there, ASH said, “I would have run to you, I missed you so much.”

[404] There was no further contact between them until April 6, when the police arrived at his door with A.K.H. The applicant had no idea what was going on. This day he first learned that the police had also been involved on March 17. His daughter told him. A.K.H. described what had happened this way. She had gone into the washroom to get away from her mother, and locked the door. Her mother picked the lock, came in and was yelling at her. An altercation ensued in which A.K.H. head butted her mother who then pushed her to the floor and sat on her. Her mother told A.S.H. to call the police. They arrived at 1 am. They took A.K.H. to the hospital because her mother was claiming she was suicidal.

[405] The police report states that A.K.H. was “sectioned 17” based on her violence to herself, her mother and her brother. It reports that at the hospital A.K.H. advised the nurse that her mother had forced her to call her father that night. Her mother was present when A.K.H. said this and immediately started to apologize to her, but A.K.H.’s resentment toward her mother became that much more evident through body language and verbal cues.

[406] On April 6 the police only told the applicant that there had been a physical incident that day at the mother’s house and they felt it was best she be in the father’s care. It is not certain exactly what words the police used, but it was along the lines of, for now.

[407] The applicant said A.K.H. told him that on April 6 she had gone into the washroom to get away from her mother. Her mother followed her and blocked her from leaving the room. A.K.H. demanded to be let out. Her mother refused. A.K.H. said, well then should I get out this way, and went to the bathroom window, which she opened. Her mother grabbed her, pushed her to the floor and sat on her. A.K.H. said she couldn’t breathe so she kicked her mother who then grabbed her legs and slammed her knees into the floor. The mother called the police.

[408] In her testimony, the mother maintained that A.K.H. was going to jump out the second floor window so she had to restrain her. A.K.H. denies ever being suicidal.

[409] The respondent indicated that A.K.H. was only supposed to be at her father’s house for a few hours. That evening, A.K.H. announced she was going to stay with her father for the weekend. At about 7 pm the applicant received a text from the respondent asking when A.K.H. was coming home and saying her brother wanted to see her. The applicant replied that A.K.H. did not want to go back, but A.S.H. could come to his house to see her. It was eventually decided that A.S.H. would come over and would stay overnight. The father said when he saw A.S.H. it was as if the three months of no contact disappeared. His son was very affectionate and very chatty. The father said A.S.H. told his sister that their mother said she was here because she had tried to commit suicide, but A.K.H. said she had not.

[410] A.S.H. did not confirm to Mr. Fletcher that his mother had told him A.K.H. had tried to commit suicide. He told Mr. Fletcher that his mother said A.K.H. was trying to climb out the bathroom window and she stopped her and pinned her down. He asked his mom for more details and she said no, it’s an adult matter.

[411] The next morning A.S.H. called his mother to see if he could stay for the weekend too. His mother admits she told him he couldn’t because he would have to comply with the court order, and it was not his father’s weekend. At about 3 pm that day the CAS contacted the father to say he should keep A.K.H. with him and for him to pick A.S.H. up from school and keep him too. By the time he got to the school, A.S.H. had already left with his mother. Later that day the CAS revised their position; A.S.H. was to remain with his mother until an April 10 court date.

[412] The respondent commenced her testimony in the re-opened case with the events of March 15.

[413] The babysitter called her because the children had been fighting. When the respondent got home, A.S.H. was in the bedroom, the housekeeper was holding the door shut, while A.K.H. was trying to open it so she could get in, to get at her brother.

[414] The housekeeper testified that in late afternoon A.K.H. went ballistic when A.S.H. asked for his IPOD back. A.K.H. charged at him. The housekeeper was able to get both children to sit down for dinner, but they continued arguing. A.K.H. threw her water in her brother’s face. He did it back. Both jumped up and were running around the table. A.K.H. was all over her brother, fighting him. The housekeeper had to pull her off him. A.K.H. grabbed her brother’s eye glasses, threw them against the wall until the lenses fell out. A.S.H. was crying. He picked up the phone to call his mother. A.K.H. was able to disconnect the phone line. The housekeeper tried to separate them but A.K.H. kept chasing her brother, tantruming all the while. The housekeeper sent A.S.H. to his mother’s room and tried to block A.K.H. from following. She had to bar the door. A.K.H. was pushing and banging on the door and trying to get in. A.S.H. was on the other side of door crying and shouting, “don’t hurt me A.K.H.” The housekeeper said this was the worst 30 minutes she has ever had with anybody’s children.

[415] This aggressive behaviour by A.K.H. supports why A.S.H. had been wanting to call the police about her behaviour in the house for some time. Dr. Meier testified that even a therapist would find A.K.H. challenging to manage.

[416] On March 16 the children called their father. The respondent testified that A.K.H. agreed to do so quite willingly. The phone called seemed to go well. At bedtime, A.K.H. was emotional and sat on the toilet for a long time. The respondent tried to persuade her to go to bed. A.K.H. plugged her ears at one point and starting poking her fingers in and out of her ears at another point. The mother testified she could not get her to stop so she took her hands and lowered them. She did this twice. The second time, A.K.H. head butted her mother. The respondent said she then lifted A.K.H. off the toilet and pulled her out of the bathroom to the carpet.

[417] The mother continued to hold A.K.H. down in the hall to keep her from hitting both of them. She asked A.S.H. to call 911. She described her daughter as hysterical, upset, and crying. She said it was a terrible few minutes. When the police arrived, A.K.H. was unable to communicate properly to them. The police recommended CHEO and the mother agreed. A.K.H. was taken by police car. The respondent and A.S.H. followed in their own vehicle.

[418] The CHEO record noted that since arriving at hospital A.K.H. was calm, co-operative and went to sleep. In hospital she said she had felt pressured to call her father, “do you know how hard that is to me to do mom.” A.K.H. remained under observation for the night but was not admitted. The mother was advised against physically restraining her when she was engaging in OCD behaviours absent concern for acute harm. An appointment was scheduled for her to meet psychiatrist Dr. Robb on April 24.

[419] The respondent described April 6 as a difficult day for A.K.H. She had spent most of the morning trying to get A.K.H. to go to school. A.K.H. started going from washroom to washroom and finally locked herself in her mother’s bathroom. Her mother popped the lock with a bobby pin and went in to talk to her. The mother describes A.K.H. as agitated and very anxious. A.K.H. said she had to get out. The mother asked her to stay and talk. A.K.H. went to the window and cranked it open. She had said more than once she needed to escape. Her mother grabbed her. The mother says somehow she got her to the bed as a safer place to restrain her. She described A.K.H. as hysterical, angry, complaining she could not breathe, and kicking out if her mother relaxed her hold.

[420] The mother testified that on arrival the police would have seen her holding A.K.H. down on the bed, but within a second of their arrival, she got up because she knew it was safe to do so.

[421] Constable McLaughlin testified. He was one of the officers who responded to the call. He says he heard screaming outside the house, and gained entry through the garage door. He and the other two officers went upstairs into the master bedroom where they found the mother sitting on top of her daughter on the bed. He said police had to separate them. Police told the mother to get off of A.K.H., and then put them in separate rooms.

[422] I prefer Cst. McLaughlin’s testimony to that of the respondent.

[423] His testimony also differed from the respondent’s in another particular. She said that she raised both the hospital and a visit to her father’s house as options for A.K.H., noting that her preference was the hospital.

[424] Cst. McLaughlin said the mother strongly wanted to take A.K.H. to the hospital. He saw no need for that. He asked if the father was in the picture and if so, proposed going there. He testified the mother was not happy with that idea. Cst. McLaughlin maintained that A.K.H. should go to her father’s at least for the day. His thought was to relieve the situation between mother and daughter by going to her father’s temporarily.

[425] The officer confirmed that the mother was not in favour of the child going to her father’s home. He said she never changed her positon in that regard while police were present. She told the officer the father would yell at A.K.H. and belittle her.

[426] I did not accept the respondent’s testimony that she suggested the father’s home as an option or that ultimately she was fine with A.K.H. going to her father’s home. I find she was not. After A.K.H. said she would go to her father’s, Cst. McLaughlin heard the mother say, “she will take off and run away from his house.” A.K.H. was present when this was said.

[427] Cst. McLaughlin testified that the mother stated that A.K.H. was going to jump out of the second floor window in an attempt to harm herself. A.K.H. said, no, she was trying to get away from her mother.

[428] Cst. McLaughlin testified that on arrival at the father’s house A.K.H. stopped crying and seemed calmer. He recalls giving the father a brief explanation of why A.K.H. was there and saying to the father something along the lines of, this was for the evening, for the day, for a few hours, as to how long she was there for.

[429] Cst. McLaughlin confirmed that the police did not have child protection concerns that day and did not forward their report to the CAS. Their intention was to keep the peace and to ensure the child’s safety in the context of a very heated argument with her mother.

[430] I find the respondent was not intentionally hurting her child on either March 16 or April 6. Her restraint was ill advised and caused the situation to escalate. Based on what A.K.H. said, the restraint did hurt, but she was not injured.

[431] I was troubled by the respondent’s testimony that she did not think she did anything on March 16 that was worthy of reproach, and there was nothing she would have done differently on April 6. On March 17, she was advised by CHEO that it is better not to restrain A.K.H., that she is not likely to harm herself. On April 6, she should have let A.K.H. out of the bathroom and let the situation de-escalate before trying to discuss it with A.K.H.

[432] The father took A.K.H. to see Dr. McConville on April 7 because she was complaining about her knees. There was nothing wrong with them.

[433] The father also asked Dr. McConville to look at A.K.H.’s back. Dr. McConville could see a pigment change consistent with a healed injury. He testified it could be consistent with rug burns or a skin inflammation, probably happening between 6 to 12 months ago. On this day, he observed A.K.H. to be more relaxed than she had been previously.

[434] The father testified that on April 6, A.K.H. told him that in December her mother had dragged her naked across a carpet. The father testified that this had occurred on December 21, an evening he was denied access to A.K.H. On December 23 when he saw the burns A.K.H. told him she had slipped on some stairs after a shower. He said he “freaked out” when he saw them. He described them as the worst, raw rug burns he had ever seen. He did not take A.K.H. for medical help. He did not call the CAS or Dr. Harrison until January 2017, after a complaint about him had been made to the CAS. He did not photograph A.K.H.’s back. His explanation was he was afraid an impropriety would be alleged against him.

[435] The mother’s testimony was that there were no rug burns. She recounted that at some point A.K.H. told her she had fallen and hurt herself. The mother felt it was unremarkable. She probably did put polysporin and/or a band aid on it. She also hypothesized that perhaps something else happened to A.K.H.’s shoulder earlier in December when she had to physically move her out of the bathroom because she was banging her head on the wall.

[436] I do not accept the applicant’s testimony about the severity of the rug burns. I find that the applicant would have taken A.K.H. to a doctor if the wounds were as serious as he described. I find there were rug burns, of a modest nature, that occurred when the mother removed A.K.H., on her back, from the bathroom. I find this happened because the respondent was unable to handle A.K.H.’s behaviour in any other way, than physically. My observation is that A.K.H. initially told her father that she had slipped on her own, in the same way she later, initially, told her mother she had hit her forehead on a door, rather than to implicate either parent to the other.

[437] On April 10, I had made an order temporarily staying the interim order that awarded primary residence of A.K.H. to her mother, noting that I would revisit the stay when the CAS investigation into allegations of physical harm in her home was complete. The interim order with respect to A.S.H. remained in effect. Since that ruling the father has had all of his parenting time with A.S.H.

[438] When the CAS decided to investigate the allegations of physical harm by the mother against A.K.H., Mr. Fletcher was selected to conduct the interviews. He is an experienced CAS social worker with specialized training and experience in interviewing children Mr. Fletcher was also chosen because he had no prior involvement with the family and would bring “fresh eyes” to the case. Mr. Fletcher was given a narrow scope assignment, to interview each child and each parent. He interviewed them each once.

[439] The respondent was correct in pointing out that Mr. Fletcher did not read the CAS file or the CHEO record, or interview third parties or collaterals. He did not have access to all of the emails that pertained to the topic of his investigation. He did not read Dr. Leonoff’s April 17, 2017 letter. An affidavit and exhibits were forwarded to him by a CAS lawyer but he did not read them. Mr. Fletcher acknowledged that this was not how he would usually investigate in that the steps required by the Ontario Child Protection Standards (2016) were not followed because of the narrow assignment he had been given.

[440] When Mr. Fletcher’s interviews were concluded the CAS wrote a closing letter. It included the following:

The information gathered through this investigation has resulted in a verification that [A.K.H.] was in fact harmed while in the care of [J.H.]. In addition to the incident in question, during the course of the Society’s investigation, it was learned that there had been an increase in similar such incidents, including an episode where [A.K.H.] was injured as a result of being dragged across the carpet by her Mother. The investigation further revealed that [A.K.H.] has been the subject to significant stress and that [J.H.] has repeatedly suggested to her daughter that she was suicidal. It should be noted that the investigation found no evidence to suggest that A.K.H. is experiencing any suicidal ideation. The investigation also confirmed that [A.S.H.] has been exposed to the harm that his Mother has been inflicting on his sister, both physical and emotional.

[441] My purpose in insuring that Dr. Leonoff’s April 17 letter was sent to the CAS was so that it would be aware that Dr. Leonoff’s concerns were then protection concerns and that he concluded that A.K.H. did not feel safe in either parent’s home. I do not know whether anyone in the CAS had taken the letter into account before the conclusion was reached to support a plan whereby A.K.H. would remain in the primary care of the father, and would further support a plan where the siblings remained together. I do not accept that the interviews conducted by Mr. Fletcher would on their own provide a sufficient basis for that recommendation as a final or permanent placement for the children. As a temporary response to the circumstances as they stood in April and May, the conclusion may have been reasonable, but I would have expected consideration of Dr. Leonoff’s April letter to have been factored in to any conclusion reached by the CAS at that time.

[442] Mr. Fletcher was satisfied that the December assault had occurred. A.K.H. was clear that the burns on her shoulder blades were made by her mom dragging her across the carpet.

[443] A.K.H. told Mr. Fletcher she felt more comfortable being at her father’s house. She said she had felt constant conflict at the mother’s. She felt her mother used her anxiety against her. She said physical altercations in the last year had also caused her more stress and anxiety. A.K.H. spoke about her mother saying she is suicidal. A.KH. was adamant that she was not. She was annoyed that her mother keeps saying this and wishes she would stop.

[444] The mother regards the use of the word “suicidal” in the CAS letter of May 10, 2017 as accusatory and misleading. Her testimony was that as a responsible parent she had discussed suicide in general away with A.K.H. During the last year, when A.K.H. had said she felt hopeless or felt like running away, she would ask her, and she would say, I’m not. I concluded that the respondent had been asking A.K.H. if she was feeling suicidal and this did upset A.K.H.

[445] The respondent’s testimony about her use of the word “suicidal” in relation to A.K.H. was somewhat confusing. In her affidavit filed as her evidence in chief in the third re-opening, she clarified that she had never “insisted that [A.K.H.] was suicidal.” (emphasis added). She went on to write, “I have indicated that I did not know if [it] was a possibility.” In fact the respondent did say to the police A.K.H. could be suicidal in relation to the bathroom incident. She admitted this, and that A.K.H. had been upset that she had mentioned suicide. In her affidavit, through the use of the negative, she downplayed her references to A.K.H. potentially being suicidal. I find her criticisms of the CAS in this regard to be misplaced.

[446] A.K.H. also told Mr. Fletcher that her mother had told her a few weeks before January 4 that they would not be seeing their father after that. She said her mother told them their father was violent during the marriage. She would say, I am not talking bad about your father, there are things you need to know. She told Mr. Fletcher that their mother asked them over and over again how the visits went. They would say he yelled, and she would exaggerate this. A.K.H. said “Mom can be over the top.”

[447] A.K.H.’s experience of her mother, as expressed to Mr. Fletcher is very well supported by other evidence in the trial.

[448] The mother’s testimony was that she did not preplan to terminate access after January 4, 2017. Rather, she said there were ongoing discussions between her and the children because she had been pushing them to see their father. To encourage the Christmas visit she told them, maybe the Christmas visit will be wonderful, and if not we will talk about it in January. I can see how this could give A.K.H. the impression that she would not be going after January, especially with the track record of access interruptions in January/February, 2014, 2015 and 2016.

[449] Interestingly A.K.H. also told Mr. Fletcher that her father said that the mother had been violent toward the children when they were younger. A.K.H. told him she knows she is getting information from both sides, she is confused and does not know who to believe. She had decided she felt safer at her father’s house.

[450] When the interview with A.K.H. was over, Mr. Fletcher returned downstairs to where the father was. The father told him something about Dr. Harrison that he had forgotten to mention in his own interview. Mr. Fletcher went back up and asked A.K.H. about it. She told him when she would go to see Dr. Harrison her mother would tell her to say that she wanted her mother to come in with her, so that she was never able to tell the doctor about all of these bad things.

[451] There is a suggestion of paternal influence in the way this information was garnered. Nor do I find that the mother was present throughout all of A.K.H.’s interviews with Dr. Harrison. At the least, her father took her to some. There were several skype interviews during the trial where A.K.H. was alone with Dr. Harrison. It would have been helpful, though, had Mr. Fletcher asked Dr. Harrison about this.

[452] The mother denied the alleged rug burn in her interview with Mr. Fletcher. With respect to March 16, 2017, she said she had not thrown the child down to the floor, rather she had placed her down. She said she put A.K.H.’s hands down gently not aggressively. A.K.H. could breathe because she was talking throughout. The mother was adamant that she only did what she did to keep her daughter safe, not to hurt her.

[453] I do not accept the assertion that the respondent was gentle or carefully placed her daughter on the ground either on March 16 or April 6. Based on other testimony from the respondent in describing both incidents, she was panicked and was acting urgently and decisively to prevent A.K.H. from seriously harming herself.

[454] The interview with A.S.H. took place at his school. The mother did not know it happen that day. A.S.H. spoke positively about his mother to Mr. Fletcher. The reason he gave for not seeing his father was because A.K.H. stopped seeing him. He said he wanted to go back. His mother said he could go back, but it would be a little more dangerous for him because his sister was not there. He spoke about dad’s anger and yelling as being a cause of why they did not want to go, but he could not provide concrete examples of this.

[455] A.S.H. reported to Mr. Fletcher that his father asked them why they had stopped seeing him. A.S.H. said if they told him the real answer he would get mad. His mother said if they are not feeling right over there then they don’t have to go. He would not change anything about his mom. He wishes his dad would stop yelling. He feels caught in the middle when his dad asks him questions he can’t answer.

[456] I infer from what A.S.H. said to Mr. Fletcher, that his mother did not facilitate his access to his father after January 4, 2017. His experience of her communication with him on this topic was that she was not encouraging him to go, but was leaving it up to him, with a cautionary note.

[457] Mr. Fletcher felt that A.S.H. appeared scripted in parts of his interview and that some of his language was not age appropriate. A.S.H. said these were his own thoughts. Mr. Fletcher wrote:

The discrepancies in some of his statements appear to suggest that this may not be the case. He spoke a lot of dad yelling, and feeling scared, but then he will struggle to verbalize incidents where he would feel scared. He spoke historically of dad being a yeller, and that his mom had told him this, but the only memory that he had was when he was three years old. He advised that his mom has not spoken to him about the incident, but in later parts of the interview he indicated that mom had spoken to him. [A.S.H] appeared very firm on what he had to say about his mother, and when he talked about negative aspects of his father, he did not have actual incidents to draw from to back up his assertions.

[458] A.S.H. had told Mr. Fletcher that every time there is a CAS investigation there was some type of disaster as the CAS would tell his father what he had said and then his dad would ask him why he said that. I conclude from the statements that he is still worried about what would and could happen at his father’s both in terms of yelling and feeling caught in the middle.

[459] On April 18 the mother texted A.K.H. It is a long message but it is revealing. It includes these words:

• “I don’t eat right (I hit 99 lbs the other day keep that private pls, I sleep terribly, because I love and need my daughter…I am not guilting you at all [A.K.H]…

• Fyi re this weekend …. and please keep this private because I don’t want [A.S.H.] getting a hard time. I was really saddened to hear that he was yelled at for telling your father the honest reason that he did not see him for three months especially when the biggest reason for his stance was to support you, honey. And that anger from your father really hurt [A.S.H.]. If that happens again, can you find the courage to defend [him] please? Just do your best please. Please look into your heart and since he is your brother and just like I asked him to look out for you the best he could, please look out for him…”

[460] The email goes on:

• “he [A.S.H.] is under pressure now for speaking his honest mind and that is not right. I am taking him out of town this weekend, likely Mont Tremblant or Montreal. I would love it if you would join us. … If you choose not to come I accept that. [A.S.H.] is suffering because he feels the strain of not aligning with your father and that is not right, he deserves a break. …

• Again please for his sake, keep this weekend plan private, as he is finding it hard to stand his ground. I know you don’t betray my trust on this. I know that I have a brave daughter with the highest integrity who told me that she did not like [A.S.H.] caving to pressure. Can you please not lose that wonderful part of you and support him.”

[461] I find the respondent was guilting A.K.H. both with respect to her mother and her brother. The respondent was sending A.K.H. a strong reminder that her father will be angry, that her brother will need her protection against him and that A.K.H. should herself stand up to her father.

[462] The respondent submitted that the CAS investigation was a travesty and that its verification of physical harm by her to A.K.H. should be rejected. In addition to not following the Ontario Child Protection Standards, she points out that Mr. Fletcher said one of the key things he looks for in a child interview is the amount of detail provided. Yet, he also said A.K.H. would not get into all the details with him about what happened before and after being dragged across the carpet. A.K.H. had already seen Dr. Leonoff and then the school principal, on the day of her meeting with Mr. Fletcher. Mr. Fletcher also found A.K.H. to be quite tired during his interview with her.

[463] Contrary to Mr. Fletcher’s reliance on what A.K.H. told him, on February 6, 2017, Kim Gorman had written in her file, “This matter is in family court for trial and the children’s information has become impossible to verify due to the influence over the years.” This was also one of the reasons Ms. Savoia gave in explanation of why the CAS did not investigate in January 2017. I note that A.K.H. gave her father two different explanations for her back injury, one that she slipped down some steps, the other that her mother had dragged her across carpet.

[464] She points out that contrary to Mr. Fletcher’s reliance on A.K.H. on February 6, 2017, Kim Gorman had written in her file, “This matter is in family court for trial and the children’s information has become impossible to verify due to the influence over the years.” This was also one of the reasons Ms. Savoia gave in explanation of why the CAS did not investigate in January 2017. I note that A.K.H. gave her father two different explanations for her back injury, one that she slipped down some steps, the other that her mother had dragged her across carpet.

[465] I agree that what Mr. Fletcher did, did not constitute a full or complete investigation. I agree that standing alone his interviews would not warrant a recommendation from the CAS for a final custody placement of these children. But, based on the information he obtained from the interviews, together with other facts I have found, I do find that A.K.H. did sustain physical harm at her mother’s house. Verification of physical harm can be made without including an intention by the parent to hurt the child, and/or where the parent is trying to parent properly. I find that was the situation here. The respondent thought she had to remove A.K.H. from the bathroom and restrain her, and in so doing so did hurt A.K.H. I also find that the respondent over-reacted on all three occasions to A.K.H.’s detriment. I do not accept the applicant’s description of the rug burns as raw wounds but I do find there were rug burns of a lesser nature, not requiring medical treatment. I also find the respondent did question A.K.H. about whether she was suicidal sufficiently that this became emotionally upsetting to A.K.H. I conclude that A.K.H’s behaviour at her mother’s home has been increasingly aggressive during the months leading to and while the trial was in progress and that their relationship was under significant strain.

[466] I also find that the inconsistency in the respondent’s own testimony in relation to rug burns supports my conclusion. She outright denied any rug burns, she remembered a minor injury A.K.H. reported to her, which she thought she probably treated in a pro forma way, and she also suggested something might have happened, or been confused with, a time earlier in December when she had to remove A.K.H. from the bathroom so that she would not hurt herself.

[467] Mr. Fletcher’s interview of the children was also helpful for the fact that both children spoke to him about how their parents spoke to them about issues pertaining to the court case. Regardless of both parents’ disavowals, the children clearly feel both parents involve them in the legal dispute.

[468] There was also an issue about whether this CAS investigation was the result of manipulation by the applicant, and if so, how that should factor into the decision making.

[469] The CAS was alerted to the events of April 6 by the applicant’s counsel’s email sent at 4:51 pm that day. The police had left the father’s house at about 3:00 pm. The applicant was the source of the information sent in the email. The next morning, April 7, at 6:59 am, the lawyer sent another email to the CAS which stated, “We need to know if the Society is going to impose a request that the children stay with their father while the matters are investigated or whether we have to bring a CFSA 40(4) Application ourselves.”

[470] The reference s. 40 (4) is neither a request for the CAS to investigate, nor to address an urgent temporary situation. In context, it is a statement that the applicant will start a protection proceeding if the CAS did not take steps to ensure the children remain with him during the investigation. This was a very extreme suggestion. It was reasonable for the applicant to want to know what, if anything the CAS was going to do. The prospect of section 40 (4) application certainly went well beyond that type of inquiry.

[471] The Ottawa Police had not forwarded its report pertaining to April 6 to the CAS, because it did not have protection concerns. The CAS requested a copy of this report after receiving the communications from the applicant’s counsel. The court was unaware of this fact until after making an order staying the order that provided temporary residential custody of A.K.H. to the respondent. The court was not aware of these facts until the reopening of the trial. I agree that both facts ought to have been told to the court when it was asked to make orders favourable to the applicant.

[472] There are factual errors in the CAS letter dated April 10, which led to the temporary stay:

• It says that both children wanted to be in their father’s care and that the police facilitated this. This is incorrect. A.S.H. was not present when the police attended the home. The police did not bring him to the father.
• It says that the respondent went to the school to remove A.S.H. such that he is now with her. She did pick A.S.H. up at school but no one had told her not to, except the applicant. He referred to what the CAS had said to him, but the CAS had not contacted the mother. Further, the inference in the letter is that the mother went to get A.S.H. at school, contrary to his wishes as expressed and facilitated by the police. Not so.
• The CAS urges the parents to give serious consideration to the wishes of the children to allow them to reside together at their father’s home. This is also inaccurate for the reasons stated above. In addition, A.S.H. had asked to be able to spend the weekend with his father, not to be allowed to live with him.

[473] Despite these significant inaccuracies with respect to A.S.H., which could have misled the court, the April 10 order did not change his residence, only required the respondent to comply with the access order already in existence. No change to A.S.H.’s residence was made on April 20 either.

[474] For these reasons, I do not agree that the CAS’s misunderstanding or the facts not known to the court would have changed the outcome on either April 10 or April 20. The key facts were that A.K.H. had been delivered to the applicant’s house, was now stating she wished to stay there, and the CAS was investigating statements made by her suggesting the possibility of physical harm by her mother. I do agree with the respondent that the applicant should have advised the court of the omissions noted, and that the CAS did have an inaccurate understanding of the situation based on the information provided by the applicant. This reflects poorly on his credibility before the court whether or not the court was actually misled.

[475] I also note that the applicant’s counsel did provide me with a copy of the police report on April 12. From that the court knew that the police purpose in taking A.K.H. to her father was to achieve a temporary respite from the mother /daughter conflict.

[476] On April 20, I heard the mother’s motion requesting to lift the stay of the temporary order which granted her primary residence of A.K.H. I did not do so. On April 21, I released an endorsement setting out my reasons and ordering that:

The respondent shall be entitled to access to A.K.H. one evening each week, not Wednesday, from 4 pm to 7 pm. She shall also have a second weekly visit with A.K.H. on the respondent’s choice of either Saturday or Sunday, from noon until 4 pm. A supervisor is required to attend throughout these access periods. The choice of supervisor is the mother’s as long as the supervisor is not related to her and has qualifications similar to those previously retained by this family. The obligation of the supervisor is to remain in eyesight and to intervene and report to the CAS only, and only in the event of a physical altercation between A.K.H. and her mother or her brother. Absent this, there shall be no report and the supervisor shall not become a trial witness.

[477] The mother observed that her daughter seemed sad, torn and conflicted, when she saw her pursuant to this order. She said A.K.H. flip flops, saying positives about her father, and then 2 hours later, contradicts herself. The mother testified that her relationship with A.K.H. has been injured. She says they will need more time together to get back to their close relationship.

[478] A.K.H.’s school confirmed that her attendance had improved in April, May and that she had been seen at school on a more consistent basis. Dr. McConville saw A.K.H. on May 5, on her own. She said she was feeling better and was going to school. Her mood was more stable and less obsessive. A.K.H. also described her sleep as better and was feeling proud because her hair washing was so much faster. Dr. McConville was pleased.

[479] The respondent tried to coordinate soccer camps with the mother but she did not answer his email. The reason she gave was that his email was accusatory and was premised upon her registering A.S.H., which she was not doing. Therefore, she said no response was called for.

[480] The respondent complained that the applicant did not abide the court order while A.K.H. was residing with him, because he was outside when she arrived to pick up A.K.H. on more than one occasion. I noticed on this occasion, and when the respondent told A.S.H. he could not spend the April 7 weekend with his father because they had to comply with the court order, that the respondent did not seem to recognize any irony in her testimony at all.

[481] The applicant says he was outside with A.S.H. on one occasion when she arrived early. He said he hurried into the house as soon as he saw her. I accept his testimony.

[482] The applicant described a “moral ethics” discussion he had with A.S.H. during a visit in April, about the cessation of access. A.S.H. said he did not want to talk about it. The applicant asked him whether this was acceptable. Would he do that to a friend? What would he do if a friend did it to him? A.S.H. cried. The applicant seemed to think A.S.H. was crying over the realization of the error of his ways. I disagree. The father’s comments would be very upsetting to his son, and would make him feel responsible for something he was not responsible for. On the one hand, the applicant submits that the respondent influences the children into not seeing him. But on this occasion he was holding A.S.H. responsible. This was another way of making the child feel caught between his parents.

[483] On April 24, A.K.H. had a meeting with Dr. Robb, a psychiatrist at CHEO. Both parents went. The respondent made a number of allegations against the applicant as to his conduct at the meeting. She says he came near her in the waiting room which made her uncomfortable. She testified she feels sick when he is in her space. The respondent also said the applicant reached out to her, with A.K.H.’s hand, which made her very uncomfortable. She felt violated, but kept a poker face for A.K.H.’s sake.

[484] The applicant said all three of them were sitting on the couch. A.K.H. kept gravitating closer to him. He says he felt badly for the mother so he told A.K.H. to hold her mother’s hand. When she didn’t, he took her hand and held it out to her mother. He added that it took the mother 4 seconds to take the child’s hand and A.K.H. later told him she felt rejected by that delay. This gibe made it hard for me to accept that he had been sincerely concerned about `the respondent’s feelings.

[485] On May 20 A.K.H. was visiting her mother. She phoned her father and asked him to come and get her. He drove over and took the time to persuade A.K.H. to continue the visit. He also offered the mother extra time to make up for the lost hour or so.

[486] There had been a disagreement between the respondent and A.K.H. about some items from her room that A.K.H. wanted to take to her father’s house. The applicant said A.K.H. told him that her mother called her a thief, grabbed her shoulder bag and pulled her. It hurt. She ran out into the backyard and accidentally ran into the badminton net scratching her forehead.

[487] I accept the respondent’s testimony that she did not use the word “thief”. Instead she said A.K.H. had been sneaking things out of her house without permission. She told A.K.H. she should not do this, that sneaking things is like stealing. The mother says she reached out hoping to hug A.K.H. but she pulled away and went into the backyard.

The second re-opening

[488] The second re-opening occurred while the trial was in session in May. The mother was allowed to reopen her case to briefly describe the access visit on May 26. She had arrived on time at 7 pm and waited for 30 minutes, before the father texted her to please come to the door. He said A.K.H. was refusing to go. He proposed a family discussion. The mother described this request as an ultimatum, as bullying and criminal harassment. She said the applicant wrongfully placed a condition on her access. She felt the door to his house would be the most unsafe place for her even with her supervisor present. She also said it shows the applicant will not comply with the court order.

[489] The respondent was extremely angry during her testimony in relation to May 26. I found her language excessive and unwarranted in relation to the father’s proposal. During the time that A.K.H. stayed with him, the applicant did show himself to be willing to make efforts to facilitate contact between A.K.H. and her mother.

[490] The applicant he said he was “disheartened” to hear this testimony. He had thought through this process they could co- parent. Now, even though he does not want to believe it, he doesn’t know if it is possible. He also said he could manage a plan where both children resided primarily with him.

[491] I felt it prudent to direct that if there was to be a request for a pleading amendment it would have to be made before his cross examination began. After a recess, the applicant confirmed that he was not seeking an amendment. The evidentiary portion of the trial concluded on this basis.

[492] In advising the court that he would not amend, and in closing submissions the applicant asserted that regardless of what he was claiming the court could essentially make whatever order it concluded was in the children’s best interests. The case law does not support this proposition. The Ontario Court of Appeal made it clear in Rodaro v. Royal Bank of Canada, 2002 CanLII 41834 (ON CA), [2002] O.J. No. 1365 at para 60 that “it is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings.” For a judge to “step outside of the pleadings and the case as developed by the parties, … denie[s] [them] the right to know the case they had to meet and the right to a fair opportunity to meet that case.” This was confirmed in the family law context in Benko v. Torok, 2013 ONCJ 331, and Burnett v. Ffrench, 2011 ONCJ 527, [2011] O.J. No. 4781.

[493] One of the essential reasons for the rule in Rodaro is the requirement for notice to the parties of the case they have to meet. A judge might on her own initiative wish to consider a custody disposition that had not been claimed, but she must provide the parties with notice and a fair opportunity to respond: Frick v Frick, 2016 ONCA 799. No one should be taken by surprise “by the injection of a novel theory of liability into the case via the reasons for judgement” (Rodaro, para 61) or without having had the opportunity to “fully canvass” the issue at trial: Frick, para 39.

[494] The next visit was May 28. A.S.H. was at his father’s that weekend. After, he told his mother that A.K.H. had taken off for an hour on her bike and that his dad told him not to tell his mother. A.S.H. said his father went looking for A.K.H. The respondent described this as A.K.H. “running away”.

[495] The father denied that A.K.H. was running away. She wanted to go for a bike ride. He told her not go, but she went anyway. She disobeyed him. He was upset at her and realized she did not have her phone with her. He took his bike and located her at the second park he went to. He said they sat and chatted, and then rode home together. Later, A.S.H. asked him if she had tried to run away. His father told him no, she went to the park against my wishes but she did not run away.

[496] I accept the father’s description of this event. I disapprove what he then said to his son: this is parenting and should not come up in normal discussions, but if you are asked you may have to answer. I doubt that he added, as said he did, if you are asked, tell her. I accept that A.S.H. feels he was not supposed to tell his mother. Again, the applicant has drawn his son into the middle of his conflict with the respondent.

Discussion of Dr. Leonoff’s Work

[497] Both parents were critical of Dr. Leonoff’s work and recommendations made over the years. The applicant alleged bias, that he had entered the fray, and had been unduly influenced by the respondent. He criticized Dr. Leonoff for not investigating the truth of allegations made by the respondent. He criticized him for not offering a solution to the situation.

[498] Overall, the applicant submitted that Dr. Leonoff got it wrong: he is not angry, any recent outburst are attributable to the supervision of access and to the respondent’s frequent denials of access. Moreover, he submitted that Dr. Leonoff did put sufficient weight on the respondent’s contribution to the problems.

[499] I do not agree that Dr. Leonoff was biased or showed a reasonable apprehension of bias. The applicant suggested Dr. Leonoff’s failure to provide his file when asked to in September 2016 showed bias. Dr. Leonoff did produce his file promptly when ordered to do so. In testimony he was somewhat defensive about the request, but nothing approaching the test for bias or reasonable apprehension of bias.

[500] I do not agree he entered the fray as a participant in the action, or as an interested party. He had a unique mandate in this case. Kershman J.’s order dated May 7, 2015 provided that the children continue to have contact with Dr. Leonoff as a form of extended assessment so that he could guide treatment needs and act if he believed that risk factors were not being addressed. The parents were ordered to co-operate with this extended process. Their parenting coordinator requested feedback from him in January, 2016. He wrote two letters to her, dated January 26 and February 5, 2016. Further, as the court’s witness he was called upon by Kershman J. in May 2016 and by myself during the trial. On another occasion, counsel requested his intervention. None of this falls within the meaning of “entering the fray.” He provided professional services over an extended time, in a balanced way, always focused on the best interests of the children.

[501] He did try to address the concerns both parents raised with him, with a view to helping them understand and hopefully to change based on understanding. This is not the same thing as taking a side. He was using the communication skills thought by him to have the best chance of success with each parent.

[502] Dr. Leonoff is not a court. He is not an investigator. His mandate did not require him to investigate allegations and make findings of fact.

[503] As for providing a solution, Dr. Leonoff has tried to find a solution. That one does not readily present, is not a fair or valid criticism of his work. He has told the parents many times what they each need to do; they have not followed his advice. In my view, it goes without saying where the responsibility for that lies.

[504] I do find that Dr. Leonoff did not fully appreciate the extent of the respondent’s entrenchment when he completed his first report. She revealed more of herself as time went on. His mind was open and he took new information into account as he received it. At first he was hopeful both parents could and would change, but events have caused him to lose that hope.

[505] Dr. Leonoff did criticize the respondent for denying access. He did articulate the problem with denial of access contrary to court order: it ruptures the parent child relationship, making it more difficult for children to deal with the parent they do not see, and do not have a chance to communicate with or work things through. He testified that her non-compliance with court orders increased the conflict. Dr. Leonoff has always been clear that the breaks in relationship with the father were harmful to the children and that their long term best interests is for both parents to be in their life.

[506] Dr. Leonoff described the respondent as determined to protect her children due to her own experiences during childhood and marriage. When her fear is engaged as it so often is with the applicant and the children, she is highly protective to the point that adds to the pressure the children are feeling. Dr. Leonoff described her oversight of the children as “oppressive.”

[507] He found it ironic that even though her intention is protective, the steps she has taken have not protected the children and have harmful aspects for them. The events continue to happen, her response is to cancel access, the conflict escalates, when access resumes it is even harder for the children, because the situation is more fraught.

[508] Dr. Leonoff did not agree with the applicant that the respondent was intentionally trying to turn the children against him. But he clearly articulated his views as to how A.K.H.’s relationship with her father is filtered through the mother’s oversight. She is influenced and identifies with her mother. She is constantly in an environment where her mother does not trust her father, does not have confidence in him and is afraid of him.

[509] Similarly, with respect to A.S.H. even in his initial assessment he observed that A.S.H. spoke as a recording, providing him with a detailed report, as if this were his obligation to do so.

[510] I find Dr. Leonoff was balanced between the parents, and did not show a bias or preference for the respondent.

[511] The applicant submitted Dr. Leonoff was not culturally sensitive to the East Indian community. Two specific points were raised: that it is a loud culture; that the MMPI is designed for white North America. Dr. Leonoff testified that he did not adjust for culture because he did not think it was a major factor here. Despite the cross examination on this point, I was not persuaded that Dr. Leonoff went wrong on account of culture. In my view the feelings of anxiety and worry the children expressed in relation to their father’s behaviour from time to time are not a cultural matter.

[512] The respondent criticizes Dr. Leonoff for underestimating her ability to keep her personal loathing and mistrust for the applicant from impacting on the children. I disagree. She criticized him extensively for apparently taking the applicant’s part and downplaying the destructive impact of his emotional outbursts on the children. I do not think he has downplayed this at all.

[513] Dr. Leonoff credited the applicant with attending for anger management. He thought Dr. Nair and Dr. Hotz were both very helpful to him. But, by the time the father saw Dr. Sodhi, he was highly invested in his innocence and victimization. Dr. Leonoff thought that Dr. Sodhi reinforced that. Her letter supports his conclusion.

[514] Dr. Leonoff described how difficult the father’s outbursts are for the children. When the father explodes, the children have to report to their mother. When they do, she has a very strong protective reaction. This cycle depletes the children. Their ability to cope is depleted. Over time the children lose the energy to “be” in the cycle. The only way they can get out of the cycle is to take the side of one or other parent because there is no middle ground for them.

[515] Dr. Leonoff did not downplay the applicant’s part of this at all. He simply did not agree with the respondent that the applicant was 100% responsible.

[516] I have no doubt that the children very clearly know what the respondent thinks about their father. Dr. Leonoff said, “it’s baked into them now” and more than making an effort to hide it from them is required.

[517] I found Dr. Leonoff’s observations and opinions consistent with what I heard and observed during the trial testimony. His description of the maternal environment that has existed throughout his involvement is that the mother assumes the worst of the father, she interprets through her mind set towards him; which is that violence can break out at any moment, and she has a serious over reaction. This opinion is well founded by testimony at trial.

[518] Dr. Leonoff concluded that the mother had not learned or developed insight during the time of his involvement. Her truth was and is that only the father is responsible. I agree with Dr. Leonoff that she has set herself up as a gatekeeper between the children and the father, and has created a sizeable barrier for the children’s relationship with him.

[519] What is now going on in both homes is toxic for the children. It became untenable for A.K.H. on and after March 16.

The Third Re-Opening

[520] The third re-opening was at the respondent’s request. A.S.H. had a soccer game at 7 p.m. on Wednesday, June 7, 2017. A.K.H. wanted to go too, so she could practice for a track and field event the next day. The applicant sent both children off to get ready 20 minutes before departure time. A.S.H. got ready and was clamouring to leave, on time. The applicant went upstairs to check on A.K.H. She said she had to use the toilet before they left. Her father suggested she use the one at the library adjacent to the soccer field. A.K.H. went into the bathroom anyway, and started to close the door. The applicant stepped forward and put his hand out to grab the door handle. As a result of this motion, the bathroom door bounced back off his foot, hitting A.K.H. in the forehead with considerable force. She sustained a cut to her left temple and a “goose egg” swelling which turned into a bruise.

[521] The force was such that the applicant was concerned enough to lay A.K.H. down on the hallway floor and administer a series of questions to her to determine whether she might have a concussion. He was satisfied she did not. He told her he would be right back, and took A.S.H. to his soccer game. They arrived about 15 minutes late. When he returned home he applied ice to her forehead. He asked if she wanted to go to the doctor and she declined.

[522] While the applicant was gone, A.K.H. took a selfie of her face. The photo confirms the above description of her injury. She also packed a back pack and was leaving the house when her father returned.

[523] The applicant acknowledges his foot came into contact with the door, but maintains he was not kicking it. The respondent believes the applicant kicked the door, that A.K.H. was knocked down by the force, that the applicant father then dragged her out of the bathroom and yelled at her.

[524] A.K.H. did not get to sleep that night until 2 a.m. She missed her track event the next day. There was no school on June 9. A.K.H. visited her mother on June 9, June 11 and 18. A.K.H. attended school on June 12, 14, 16 and 20. She also had an appointment at CHEO on June 15. Her mother did notice A.K.H.’s forehead. A.K.H. told her she had walked into a door.

[525] On June 11, the respondent emailed the applicant. She referred to a cut above A.K.H.’s eyebrow, which A.K.H. told her she got from walking/running into a door. But today, the respondent said, A.K.H. had a black eye. She asked how that happened.

[526] The applicant responded on June 14, that he didn’t know what it was. He said he had noticed it on Saturday night, which was June 10. He had thought it was a smudge, but in any event, it was improving.

[527] In testimony the applicant explained that he did not correct the respondent as to what had actually happened on June 7 because she had not asked.

[528] On June 19, A.K.H.’s school principal was approached by two students who reported things A.K.H. had told them at a recent sleepover. The principal called the CAS.

[529] The CAS note of this call is that the principal said “[A.K.H.] told the others at the sleepover that both of her parents have been physically and verbally abusive to her. [A.K.H.] states that her father deliberately slammed a door on her that hit her on the head and caused a cut above her eye and some bruising. This would have happened about three weeks ago…no teachers recalled [seeing] any specific injuries of this type to [A.K.H.].”

[530] The next day the principal called A.K.H. to her office. A.K.H. described the bathroom incident to the principal, in a way that indicated A.K.H. regarded it as a deliberate action by her father.

[531] The CAS attended the school that same day to interview A.K.H. and the applicant. A.K.H. told the CAS worker that when she tried to close the door her father kicked it open while wearing his shoes. The door struck her in the face. She said she then collapsed on the floor and her father dragged her out into the hallway and yelled at her. While he took her brother to soccer, she took the selfie and packed her bag. She was intending to go to the police, but her father arrived home as she was leaving. A.K.H. said he did not provide her with first aid.

[532] A.K.H. told the CAS worker that she did not feel safe with her father and she did not want be with her mother either. She stated that she wished to go into foster care. After further discussions she agreed to spend the evening and night at the home of R.A. and her husband, S.C..

[533] The CAS concluded this injury was accidental. The note stating this mentions that A.K.H. had, subsequent to her first interview, remembered that her father had iced her forehead. (Note of Y. Richards dated June 23, 2017). A subsequent note by Ms. Richards dated June 28 records that A.K.H. had acknowledged the incident to be accidental.

[534] I find that A.K.H. had wanted to go to the soccer field to practice for the track event the next day. I find her father had sent her upstairs to get ready, with plenty of time for her to do so. When she was not ready, he did then go up to check on her. She did try to close the washroom door and he did try to prevent her. The applicant knew that if A.K.H. got the bathroom door closed, she would be in there for another 20 minutes. They would be late. He was in a hurry and wanted to prevent that door from closing. I find in these circumstances his foot action was more vigorous than he described and that he applied significant force to the door. I find he did not intend to hurt her, but that the force applied to the door was significant because A.K.H. was injured. I find that the applicant accidentally injured A.K.H. through an ill-advised action arising in response to her OCD symptoms, in this instance, the potential 20 minute routine in the bathroom.

[535] I have no direct evidence that the applicant was in a rage. From A.K.H’