A.S. v. K.L.H., 2017 ONSC 5624

CITATION: A.S. v. K.L.H., 2017 ONSC 5624

COURT FILE NO.: FS-14-19405

DATE: 2017-09-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.S. Applicant

– and –

K.L.H. Respondent

COUNSEL:

Colin C. Lyle, for the Applicant

Philip Viater, for the Respondent

HEARD: May 8-12, 15-19, June 7, 9, 2017

GILMORE J.

Overview and Relief Sought

[1] This is a case about custody and access in which the children have become the victims. In his mission to punish the respondent mother for her failure to acquiesce to his financial demands, the applicant father has influenced the children and undermined the mother to the point where the children’s behaviour towards her became disrespectful, shocking and disturbing. The children must be permitted to normalize the loving relationship they had with their mother prior to separation.

[2] The mother seeks sole custody of the children. She asks the court to appoint a professional (such as Dr. Barbara Fidler) to deal with the parental alienation and to recommend a parenting plan. She further requests that the father not have any contact with the mother or children until further court order. If the children refuse to reside with the mother they are to go into foster care or be placed with a relative of the mother. The police are to enforce the order.

[3] The father also seeks sole custody of the children. He requests that the mother have access on alternate weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. with additional time for long weekends and school holidays. The parties may communicate concerning access via text messages. Documents related to the children shall be exchanged through their backpacks. The parties shall continue to attend counseling.

[4] The father has failed to convince the court that anything other than somewhat drastic measures must be taken to allow the children to re-establish trust and respect for their mother. Action is required before the damage done to the children is no longer reversible.

[5] The vast amount of oral and documentary evidence in this trial provides irrefutable proof that the mother’s complaints are valid and that the father’s plaintive repetitions that he only wants the best for the children must be viewed with extreme caution.

Background

[6] The parties met through a mutual friend in 2000. They began to live together in 2001 and separated on August 3, 2013. They were never married. The separation has been fraught with litigation over money and child-related issues. In fact, the financial relief in the father’s application has not yet been addressed despite being outstanding for more than three years. This is because the child-related issues have been all-consuming and taken precedence to the point that this trial was ordered to take place before any financial matters could be litigated.

[7] The parties have two children: their son, L.S., born on […], 2003 (now aged 13) and their daughter, O.S., born on […], 2005 (now aged 12). L.S. is in Grade 9 at N[…] Secondary School. O.S. attends Grade 7 at W[…] Public School.

[8] The mother is an elementary school principal. The father is a contractor. The father resides at C[…] Street (“C[…]C[…]”) in Toronto. This is a home owned by his mother. The parties and the children resided there throughout the time they were together.

[9] The mother owned a home at F[…] Road (“F[…]F[…]”) in Toronto when she met the father. During the relationship the home was torn down with the intention of replacing it with a new home in which the parties and children would live. The home was only partially finished on the date of separation. The mother moved to her mother’s (M.H.) home after separation and stayed there for a year. After certain improvements were made to F[…] to make it habitable, she moved into it and continues to reside at the F[…] home. Travel time between F[…] and C[…] varies depending on weather and traffic but is usually between 35-60 minutes.

[10] On April 2, 2016, the father was charged with two counts of sexual assault and one count of assault against the mother. His bail conditions did not allow him to have contact with the mother. The criminal matters were resolved by way of a peace bond on May 9, 2017. The father had been strongly advised by previous judges to ensure his assault matters were dealt with prior to trial. That did not happen. A half-day of trial time was lost so that the father could attend court and obtain the peace bond. The peace bond does not allow communication between the parties for one year except in accordance with a family court order.

Litigation and Access History

[11] The separation of these parties occurred in a manner that set the tone for the future tortuous unfolding of this litigation. There is no dispute that the father became frustrated with the mother over financial issues. While away at the cottage for a weekend in August 2013, he abruptly took L.S. and left. O.S. wanted to stay with her mother. The father changed the locks at C[…] after allowing the mother access to her clothes and jewelry. This is not disputed.

[12] The father’s brusque termination of the relationship created obvious problems. First, the children were scheduled to attend a second week of camp on the Monday. As L.S. did not attend, O.S. did not want to attend. This created upheaval. The children had never been apart. Second, the children witnessed the argument between their parents after which the father simply left. They were upset and frightened. Further, the mother had nowhere to go. As F[…] was not habitable, she had no choice but to stay with her mother for a year before she could move into F[…]. Needless to say, the father simply walking out created tensions that still resonate in this family.

[13] Following this very emotionally charged separation, the parties tried to resolve the immediate access arrangements between themselves. This led to a handwritten agreement between the parties dated August 9, 2013. They agreed that for the week of August 12th, the children would reside with the father from Monday at 6:00 p.m. until Friday after soccer when they would reside with the mother. The parties prepared a further agreement signed on August 16, 2013. This agreement set out a shared schedule for a further two weeks. All pick-ups and drop-offs were to occur at the maternal grandmother’s home.

[14] The mother then commenced an application in the Ontario Court of Justice. The first order was made on August 30, 2013, confirming that the children would continue to attend P[…] Public School. The matter was adjourned to September 9, 2013. On that date the parties negotiated an access schedule that remained in place until a settlement was reached in March 2016. Pursuant to the September 2013 agreement, the children resided with their mother from Thursday after school until Sunday at noon and their father from Sunday at noon until Thursday. The father was to pick the children up at the maternal grandmother’s home on Thursday morning and take them to school.

[15] The father commenced an application in Superior Court on April 30, 2014, as a result of his trust claims related to the mother’s properties. On August 2014, an order was made requesting the Ontario Children’s Lawyer (“OCL”) to provide a report. That report was “collapsed” when the mother refused to consent to providing her personal counseling records to the OCL investigator.

[16] The mother then brought a motion for a s. 30 assessment. A list of three assessors was compiled. The father chose Ms. Ilana Tamari. An order appointing the assessor was made on September 15, 2015. The order also required that the mother was to pick up the children from the C[…] home and the father was to pick up the children from the F[…] home. The father had previously refused to pick up the children from F[…] due to the litigation related to that residence.

[17] On March 3, 2016, a disclosure meeting was held with Ms. Tamari, the parties and their counsel. Final Minutes of Settlement were signed in which the parties agreed to joint custody and joint decision-making. Ms. Tamari was appointed the Parenting Coordinator to mediate and, if necessary, to arbitrate any disputes. It was agreed that parenting would be shared on a 2/2/5 schedule commencing September 2016. Until that time the previous access schedule of Sunday to Thursday with the father and Thursday to Sunday with the mother was to continue. The parties were to each have two non-consecutive weeks of summer vacation with the children with notice to be given by May 1st. The mother was to choose the weeks first in even years and the father in odd years. It was agreed that O.S. would remain at P[…] Public School until the end of Grade 6 and that the issue of where L.S. would attend for Grade 8 would be dealt with by June 2016. As a result of this settlement, Ms. Tamari did not write her assessment report at that time. She wrote the report in December 2016, when requested by the mother and in anticipation of trial.

[18] On April 2, 2016, the father was charged with two counts of sexual assault and one count of assault against the mother. His bail conditions did not allow him to contact the mother or be within 100 metres of her.

[19] On May 9, 2016, an order was signed incorporating the final Minutes of Settlement into a court order. The judge who signed the final order was not aware of the father’s criminal charges or any of the intervening events following the signing of the Minutes of Settlement in March 2016.

[20] On May 17, 2016, the mother brought an urgent motion prior to the filing of her intended Motion to Change. She sought three orders:

(a) An order for sole custody with supervised access to the father or a temporary suspension of his access.

(b) An order requiring the father to comply with the Minutes of Settlement dated March 3, 2016, or alternatively striking his pleadings.

(c) An order that the father pay for half of the s. 30 assessment ($8,997.63).

[21] The father brought a cross-motion seeking an order for appointment of the OCL.

[22] Without going into the details of the many motions that were brought in the spring of 2016, what ensued was that the mother’s Motion to Change for sole custody was dismissed and she was ordered to file an Amended Answer to the father’s Application setting out her claims. The endorsement of June 9, 2016, also stipulated that the May 9, 2016, final order was to be re-issued in the form of a temporary order given that the final order had been signed by a judge who had not been made aware of the intervening events. As well, the mother was given sole decision-making authority for educational decisions related to the 2016/2017 school year for L.S.

[23] The motions judge set a case conference date to discuss issues such as further involvement of the OCL, the referral of the parties to counseling by the CAS, a possible trial date in the fall of 2016 and whether Ms. Tamari should be directed to write her report. At the case conference on August 24, 2016, the parties could not reach agreement on any outstanding issues other than the parties and children attending therapy with Yorktown.

[24] By the time of the next case conference on October 24, 2016, matters were in a state of chaos. The mother had chosen to enroll L.S. in a school near the F[…] home where she was living. L.S. refused to attend. His truancy and recalcitrance were so dire that the mother finally agreed that L.S. could go to E[…] Public School near the father’s residence despite L.S. originally saying that he did not want to go to E[…]. He started there on October 31, 2016.

[25] The behaviour of the children towards the mother (according to her, because of the father’s alienation) became so aggressive and spiteful that she feared for her safety. Both the police and the Toronto Children’s Aid Society (“CAS”) had been involved extensively with the family. On October 5, 2016, the mother took the step of temporarily suspending her time with the children until further therapy with Yorktown could take place. The court was concerned enough to order a stay of all proceedings and asked the CAS to investigate whether an apprehension of the children was needed. However, the CAS involvement in this case has remained voluntary and they closed their file just before the commencement of this trial.

[26] The mother attempted to resume access in January 2017. Despite many requests for a return to the previously agreed upon schedule, she saw the children only sporadically. Access usually included a dinner after counseling in alternate weeks and some time in the afternoon on either Saturday or Sunday. The children refused to see their mother for overnight visits or anything more than the above-described schedule. The children were in complete control of when they saw their mother.

[27] At a case conference on January 6, 2017, the court determined that a trial was required on the child-related issues. A 10-day trial commencing May 8, 2017 was set. No motions were permitted prior to trial except a disclosure motion by the father, which is detailed below. Each party was allotted 25 hours within which to present their case including opening and closing submissions and pre-trial motions.

[28] The father’s disclosure motion was heard on March 27, 2017. He requested a variety of disclosure from the mother including but not limited to notes from all doctors, therapists, psychiatrists and counselors since August 3, 2013, disclosure related to the mother’s leaves of absence from work, OHIP records, Group Benefits claims, and clinical notes from Yorktown. The motion was dismissed and the father was ordered to pay $5,000 in costs.

[29] A trial management conference was held on April 19, 2017. The parties were encouraged to file a joint document brief, which would have been enormously helpful to this court. Instead, 138 documentary exhibits were filed including Exhibit 1, which is a bundle of over 700 pages of CAS records.

[30] The father’s counsel estimated that his examination-in-chief would take four hours. In fact it took several days. His cross-examination was estimated to take six hours but took nine due to the length of the examination-in-chief. The father’s counsel had used approximately 22 hours of his 25 allotted hours and almost eight of the 10 days of trial before the mother’s case had even begun. The amount of time allocated for the father’s case was drastically underestimated, which created problems for the mother. Two extra days of trial time was required to ensure that the mother had a proper amount of time to present her case. In all, despite the efforts of the various case management judges who tried to keep this matter on track, the case took longer than estimated. This is an issue that must be addressed by way of costs.

[31] On June 7, 2017, the weekend before the trial continuation, L.S. was in his father’s care. He went to a mall with some friends. He and one of his friends were apprehended by mall security for shoplifting. The police were called. L.S. called the mother and asked her to come and pick him up. He wanted to stay with her. The police released L.S. with a warning. The mother attempted to contact the father but there was no response. Finally she reached him and allowed him to speak to L.S. after which L.S. decided he no longer wanted to stay with his mother. In a follow up email, the father told the mother that the consequence for the theft was that L.S. was no longer able to go to malls with his friends.

[32] On the last day of trial (June 9, 2017) a consent order was made permitting both parties to attend the children’s respective graduations, O.S.’s on June 22, 2017, and L.S.’s on June 26, 2017. The order set out where the parties would sit, with which child and how long they would have for pictures.

[33] On June 12, 2017, an endorsement was released pending the receipt of written submissions and this judgment. Given this court’s concern about possible damage to the children’s relationship with their mother, a temporary parenting plan was ordered whereby the children were placed with their mother for the entire summer, with the father receiving supervised access for two hours each week. The reasons for such a significant temporary change in the parenting arrangements will become clear in the reasons set out in this judgment.

The Documentary Evidence

1) The “Collapsed” OCL Report

[34] OCL involvement was first ordered in August 2014. The OCL began its s. 112 report in October 2014, and the discontinued or “collapsed” report was issued on March 6, 2015.

[35] The report does not contain any conclusions or recommendations. This is because the mother did not provide her consent to the OCL obtaining all of her counseling and therapeutic records. As such, the report contains only the results of the OCL investigation. Interestingly, the father brought a motion for disclosure of the same records prior to trial and the court dismissed his motion on the basis that it was a fishing expedition.

[36] Ms. Persia Etemadi gave evidence at trial. Ms. Etemadi was doing her Masters of Social Work placement with the OCL at the time of the report. She wrote the report with her supervising clinician. Her evidence was that she thought the mother’s mental health records may have been useful. However, the mother advised that she was concerned that the father would use her therapeutic records as fuel in the litigation. She had been working on issues with her therapist and wanted that information to remain private.

[37] The report sets out that the father was seeking sole custody with access to the mother. The mother was seeking joint custody with access to the father. The father reported to Ms. Etemadi that the children were unhappy with access and wanted to live with him. It is interesting to note that the father reported to Ms. Etemadi that he was concerned about the children living with their mother because she did not live in a good area. In fact, the mother was living at F[…], which the parties had always intended to be their permanent residence.

[38] Further, the father indicated that he was not comfortable picking up the children either at F[…] or at M.H.’s home. In this court’s view, this was simply a control issue on the part of the father.

[39] Both parties reported a lack of communication. The father complained that the mother did not take the children to their extra-curricular games or practices. The mother reported that the father did not share information with her or answer her texts or emails. At one point he changed his phone number without telling her. Without the proper scheduling information, she often missed games or practices. This was interpreted by the father and the children as the mother not caring or deliberately avoiding scheduled extra-curricular activities. The mother denied this.

[40] It is important to note that the father was candid in his evidence that on many occasions he chose not to answer the mother’s texts or emails. He testified that answering her texts only led to conflict. However, he also conceded that those texts were related to making arrangements for access or other access-related matters. He was clear that he changed his phone number to avoid the mother’s texts and calls. The father told Ms. Etemadi that he does not trust anything the mother has to say and so he chooses not to communicate with her. At trial, the mother’s frustration related to the father’s continued lack of response was palpable.

[41] In an interview with the father on November 14, 2014, the father reported to Ms. Etemadi that he did not have time to respond to the mother’s texts and that he found them nasty and insulting. The father repeated similar complaints during his evidence at trial. However, the father never produced any texts or emails from the mother to confirm this. The mother denied sending nasty or insulting emails. She agreed that at times she sent multiple messages but only because the father did not respond to her. This was clear from the texts and emails she produced at trial.

[42] The mother reported to Ms. Etemadi her concerns related to the father’s inability to control his anger. She cited examples including two occasions when he publicly lost his temper at L.S.’s soccer games. One of these outbursts led to L.S. not being invited back onto the team the following year. The father downplayed these incidents in his evidence claiming he was only defending his child. He did not deny yelling. He conceded that he did have some built up anger towards the mother at the point of separation and may have acted inappropriately but that he no longer does so. This is incorrect as will be set out below. The father continues to act inappropriately.

[43] The mother reported that the father was turning the children against her by disparaging her, her mother and her brother to the children. She told Ms. Etemadi that the father did not provide her with information about the children’s activities and when she missed a game or practice as a result, the father told the children the mother did not care about her. This type of remark (suggesting that the mother did not care about the children) is repeated in various forms in some of the recorded conversations, which will be detailed below.

[44] The mother described certain incidents to illustrate her concern about the children’s behaviour towards her. These included the children swearing at her, L.S. throwing things at her when she tried to discipline him and telling her that he was happy when she got into a car accident and that it was “karma.”

[45] The father was clear that he hides nothing from the children about the separation and that they are well aware of his unhappiness with the mother. While appearing concerned about the children’s reported behaviour with their mother, he noted no issues with their behaviour when they were with him other than an increased level of swearing.

[46] Ms. Etemadi and her supervisor arranged home visits with both parties. They visited the mother and the children at F[…]. The children acted out inappropriately during the home visit with the mother. Ms. Etemadi described the children as disruptive and not listening to their mother. O.S. repeatedly tapped on her glass throughout dinner and did not listen to her mother’s many attempts to have her stop. At trial, Ms. Etemadi testified that the mother’s disciplining of the children was appropriate in the circumstances. She described the children as “intentionally acting out” and disregarding their mother’s instructions.

[47] During the home visit with the father, the children were calm but needed to be corrected at times. Their behaviour with their father was normal. Interestingly, O.S. reported to her father that she had seen the “Hunger Games” movie with the mother and that it frightened her. Her father responded “I don’t like those movies, I don’t think it’s right.” This type of undermining comment was a theme throughout the trial. It was a form of subtle insinuation on the part of the father that the mother’s choices were not the right ones.

[48] The most important information in the OCL report is Ms. Etemadi’s stated concerns that the children were not being appropriately shielded from parental conflict and that the father conceded that he did not hide things from the children. She was also concerned about the children’s disruptive behaviour in the mother’s presence while the father claimed to be unaware of the children’s deteriorating behaviour.

[49] In a case note from an interview on January 23, 2015, with the father, he told Ms. Etemadi that the children know how he feels about his claim for an interest in the F[…] home and that the situation related to that home is “unjust.” When asked if he thought his feelings might be impacting the children’s relationship with their mother, he agreed that perhaps that was true.

2) The CAS File

[50] CAS was involved with this family on a voluntary basis from April 2015 to February 23, 2017. An exhibit of some 700 pages was filed containing all of the contact logs and risk assessments. Although it was not possible to call the authors of the records as witnesses for various reasons, the parties agreed that the records should be considered evidence at trial with the court deciding what weight should be given to it as hearsay.

[51] Various notes from the CAS disclosure were referred to in evidence with respect to certain incidents involving the children. A contact log dated June 2, 2015, contains notes from caseworker Jessica Barr after a home visit with the father. A number of interesting comments come from that note. First, the father denies that he has alienated the children from the mother. He insists that she has alienated the children from him. There was no evidence of this at trial.

[52] Second, when asked what he did to promote the children’s relationship with their mother, his answer was that he did not promote the relationship. The father confirmed that he did not believe in hiding things from the children. When the worker stressed to the father the importance of not saying negative things about the mother in front of the children, he replied that was easy to say when one is not emotionally involved in the situation. He went on to say that he does tell the children their mother is selfish because she is and her actions show it.

[53] A contact log dated May 22, 2015, contains notes from Ms. Barr related to an interview she had with L.S. at school. This note contains some distressing content that can be highlighted as follows:

(a) L.S. knew the worker was coming to talk to him. He said his father had told him. The parents were told not to tell the children the worker would be attending. The father denied telling L.S. about the interview.

(b) L.S. told the worker that the reason for the interview was to discuss the mother hitting L.S. and O.S. The children never made any such allegation to the OCL or to Ms. Tamari.

(c) When asked who was in his family, he said his dad, his sister and his dog. He had to be reminded about his mother.

(d) When asked about his mother’s good qualities, he could think of none. When asked what made her a good mom, he replied she was not a good mom. When asked to think of one good thing he liked to do with his mom, he could not think of one, even from when he was little.

[54] Ms. Barr interviewed O.S. at school on the same day. Some disconcerting excerpts from that interview including the following:

(a) O.S. told the worker that she had been informed of the interview in advance by her father. The worker specifically requested that parents not inform the children she was coming.

(b) O.S. told the worker, “If she [the mother] doesn’t pay [for hockey] she doesn’t deserve to bring me. You pay money for your kids to play.” O.S. went on to say that she did not want her mother to take her to hockey because she does not pay for hockey.

(c) O.S told the worker that she did not want her mother to act differently because she did not want her to act like she cares about O.S. when O.S. knows she does not.

(d) O.S. was asked about an incident that occurred at the hockey rink on April 4, 2015. O.S. explained that her mother and father were “fighting by talking” but that not many people saw it.

[55] Ms. Barr interviewed the children on May 27, 2015. L.S. alleged his mother threw water at him and O.S. alleged that her mother slapped her. During the course of the trial the mother explained that she was with the children in the car and they became very aggressive with her, swearing and yelling. L.S. threw his water bottle at her. In frustration she threw some of the water back at him and grabbed O.S. by the shoulder. She very much regretted this incident and nothing like this has happened since. This type of aggressive behaviour from the children towards her is what ultimately led her to suspend access on her own accord in October 2016, as the children’s aggression towards her became worse over time. By the fall of 2016 the children were damaging her car and items in her home and threatening to call the police and lie that she had hit them.

[56] In a case note dated October 19, 2015, the father told the worker that the mother provokes him and that everything is about accommodating her. He added, “why shouldn’t the kids know who contributed to paying for hockey?”

[57] In a disclosure note dated June 11, 2015, the CAS assessed the risk of emotional harm to the children due to significant conflict over custody. The narrative states, “….the children are aware of some of the issues related to the significant conflict over custody and access (i.e. issues related to money). This is impacting them as it is affecting their relationships with their parents (i.e. not wanting to see mom because she won’t give dad money).”

[58] In a contact log note dated April 11, 2016 (post criminal charges) the father admitted to slapping mom’s buttocks in front of the children. He described this as a playful gesture and without sexual intent. The mother’s evidence was very different about this. She described repeated sexual advances by way of words and gestures in front of the children. The children asked their mother to “lie down” with their father. When she rebuffed his sexual advances he became angry and spiteful. He would swear at the mother in front of the children. Some of these incidents are represented on the phone recordings. This contact log also contained an interesting comment in the narrative to the effect that the father had been creating conflict by not agreeing to simple requests that he perceived may benefit the mother.

[59] In a contact log dated April 11, 2016, the father admitted to badmouthing the mother in front of the children. He promised it would stop. He said that it was the mother’s idea to co-parent but that he knew it would never work.

[60] In a risk assessment conducted on April 21, 2016, the risk level for neglect and abuse in relation to the children was assessed at “Very High” with discretionary considerations. Those considerations included the fact that the parties were no longer permitted to communicate due to the father’s bail conditions.

[61] A disclosure note dated June 2, 2016, details an interview with caseworker Rob McMullen (who took over from Ms. Barr) and O.S. at her school. O.S. complained that her mother asked her and her brother to take the subway to Royal York station so she could pick them up. O.S. stated that her mother was “changing the rules” and that pick-up is to take place at her father’s home on C[…].

[62] A disclosure note dated June 3, 2016, detailed an incident in which there was conflict over L.S.’s health card. L.S. was experiencing knee problems and the mother had made an appointment to take him to the doctor. She requested L.S.’s original health card. The father refused to provide it stating that he had provided certified copies that were sufficient. An email exchange between counsel on the same date confirms mother’s counsel’s request for the original health card for a doctor’s appointment. The father’s counsel responded that both of the children’s health cards were lost by the mother when she was living with her mother. The mother denied this. The father confirmed at trial he had the original health cards. He chose not to give them to the mother. He insisted that copies of the children’s birth certificates and health cards were provided to her and should have been sufficient.

[63] A disclosure note dated September 8, 2016, summarizes an interview that Mr. McMullan had with L.S. at the father’s home. L.S. stated he did not want to attend the school the mother had chosen for him near the F[…] home. When asked why, his response was that “the former school was better academically than the new school.” L.S. conceded his father told him this. He told Mr. McMullan that the new school was in a “sketchier” area while at the same time stating he had never been there. L.S. was aware that his mother had the legal right to choose his school for Grade 8 but he did not care and was adamant that she could not force him to go.

[64] At trial, the mother testified that after refusing to attend school, L.S. went to his father’s home on C[…] even when it was a day when he was to have been with her. It was clear from the evidence at trial that when L.S. went to his father’s home instead of school, he was not punished for his truancy. Rather, he was permitted to go out for lunch with friends and remain at the father’s home without consequence.

[65] A disclosure note dated July 4, 2016, outlines a telephone conversation between the father’s current counsel, the father and Mr. McMullan. The father’s counsel was demanding that the CAS should be requiring production of the mother’s mental health records. The father’s counsel was noted as being somewhat accusatory of the CAS not doing a proper job.

[66] On September 23, 2016, Mr. McMullen met with both children at the C[…] home. L.S. told him that he wanted his father to get “full custody.”

[67] Disclosure notes dated September 29 and October 4, 2016, outline concerns related to L.S.’s refusal to attend school near his mother’s home. In a call to the father on September 29, 2016, Mr. McMullan outlined that L.S.’s behaviour and reactions to his new school at his mother’s home were unacceptable including trashing her home, yelling, cursing and throwing a hacky sack at her. Mr. McMullan advised the father that if L.S. came to his home rather than going to school or to his mother’s it was up to the father to enforce the terms of the outstanding court order and that he should not be undermining the mother’s decisions. The father became angry and accused the mother of having mental health problems that everyone was ignoring.

[68] On October 4, 2016, the mother called the police when L.S. had a tantrum at her home about the school issue. Mr. McMullan advised the father that he must ensure the children receive clear messages from their father including the following enumerated items:

(a) L.S. needs to attend school regularly.

(b) L.S. and O.S. need to be civil and cooperative when at their mother’s home.

(c) L.S. and O.S. need to be at their mother’s home during the assigned times for access.

(d) Even though there were ongoing court proceedings that caused the adults much stress, a court order needs to be obeyed.

(e) Their mother is not a bad person and is not trying to make life difficult for the children. They should not try to make life difficult for their mother.

[69] On October 5, 2016, the mother advised that due to concerns about her personal safety she was temporarily suspending her access to the children pending further counseling taking place. She agreed that L.S. could go to E[…] Public School as of October 31, 2016. Mr. McMullen met with L.S. on November 7, 2017. During that meeting L.S. advised Mr. McMullen that his father had received an email stating that “mom had signed the kids over.” In an interview with Mr. McMullan on November 11, 2016, O.S. stated that she wished that she and L.S. would be “signed over to dad…because mom doesn’t make good decisions for us.”

[70] In a disclosure note dated November 2, 2016, supervisor Darcy Koreen summarized a telephone conference with Yorktown where the children and family were receiving therapy. It was noted that the father made ongoing comments to the children that undermined the mother’s decisions and role. The mother’s counseling goals were noted to be reconnecting with her children and setting appropriate boundaries. The father was reported as having no specific goals and did not see how his comments negatively impacted the children.

[71] Mr. McMullan met with O.S. at her school on January 24, 2017. He asked how she felt about not having weekend visits with her mother. O.S. responded that this was good because now she could choose when she went to her mother’s and that she did not like to stay overnight.

[72] Mr. McMullan had a phone conference with the mother on February 2, 2017. The mother expressed her frustration with the fact that she was only seeing the children occasionally for a few hours. She asked the children about going to the Caribbean for March Break but they said they did not want to go as it “wasn’t good timing” but could not explain what that meant. The mother complained that the father’s counsel was not responding to communication from her lawyer and that was also frustrating.

[73] There were several points during the trial where the mother complained about the father’s current counsel not responding to her lawyer’s correspondence. This was confirmed by the email and letter chains the mother produced. This was understandably very frustrating for the mother as she was unable to communicate with the father while he was on bail, the children often did not respond to her or blocked her on their phones, and the father’s counsel did not respond.

[74] Mr. McMullan had a phone conference with the father on February 3, 2017. The father expressed frustration about the fact that the mother was requesting weekend access but the children did not want to stay with her overnight. Mr. McMullan advised the father that he must tell the children they should go but the father was concerned that “something might go wrong again.” Mr. McMullan raised the issue of the upcoming March Break. He said he was surprised the children said they knew of no plans as clearly the mother had mentioned a proposed trip to the Caribbean. The father said the children had no passports and in any event there was a court order that did not permit either parent to take the children out of the country.

3) The Police Occurrence Reports

[75] Six separate occurrence reports were filed with the court. The first call to the police was made by the mother within a few weeks of the date of separation. The father was driving a car registered in her name. She wanted to sign the ownership over to him so that he would be responsible for insurance and maintenance. The father refused as he was unclear how this might affect any future property claims he had against the mother. After officers spoke to the father he agreed to receive the signed ownership from the mother.

[76] On February 15, 2014, the mother contacted police concerning an incident that occurred at the hockey arena where O. S. was playing (“the arena incident”). The mother’s evidence was that the parties had agreed during the course of mediation that if they attended games or practices where the other parent had the care of the children, the access parent would simply watch and not be otherwise involved. On the date in question, the father attended one of O.S.’s games and became involved with tying her skates. While there was no court order preventing him from attending, it was the mother’s evidence that he acted in contravention of their mediated agreement.

[77] The mother’s evidence was that when the father entered the change room she asked him to leave. His response was that she “couldn’t f’ing make him.” He raised his hand and his tone frightened the mother. Once the father was in the change room, O.S. asked him to tie her skates as she did not like the way her mother had done it. The father untied the skates and retied them.

[78] The mother’s evidence was that she had been working hard to learn how to do things such as tie O.S.’s skates so that she could better support O.S. at hockey. However, when the father is present, he undermines this and the mother is diminished in the children’s eyes. There are other issues as well. For example, the mother always travels with healthy snacks for the children. When the father arrives at the arena he gives the children money to buy junk food at the vending machine.

[79] When the father refused to leave the change room the mother called the police. The mother’s evidence was that O.S. could not possibly have seen the police as she was playing hockey and the father’s interview with police took place out of sight. O.S., however, insists she saw the police talking to her dad and for this reason did not want the mother to take her to hockey anymore. The mother’s evidence was that the father told O.S. his version of the entire incident, once again undermining her parenting role.

[80] The father’s account was quite different. He told the court that he had not attended the previous game and O.S. was upset because her mother did not tie her skates properly. So the father decided to attend the game in question. He went to the change room to help O.S. tie her skates and the mother confronted him. His evidence was that he had every right to be at the game and O.S. wanted him there. When the police were called he voluntarily agreed to leave. His testimony was that everyone saw the police arrive and speak to him and that O.S. was naturally upset about this.

[81] Two occurrence reports were created on April 1, 2016. The first related to the “Tim Horton’s incident” and the second related to the mother’s complaints that led to the criminal charges being laid against the father.

[82] Much time was spent at trial dealing with the Tim Horton’s incident. Not surprisingly, both parties had very different accounts of it. The police occurrence report was created when the father contacted the police to locate the children. The children had had an argument with their mother while being driven to school. The mother insisted on seeing the children’s phones to check on the websites they had been viewing. For the mother this was a safety concern related to bullying and Internet predators, and was the action of a responsible parent.

[83] The children reacted very negatively when the mother asked to look at their phones. They accused her of wanting to look at texts they had exchanged with their father and told her that since she did not pay for their phones she could not look at them. They refused to concede that a parent had the right to look at their children’s phones.

[84] On this occasion, L.S. refused to give his mother his phone. The mother pulled over when the argument escalated and L.S. knocked the mother’s phone out of her hand. The mother and the children got out of the car. The children “took off” and quickly walked away down the road. The mother testified they blocked her number from their phones and she was unable to contact them. They outpaced her and soon she could no longer see them. A short while later they were located at a Tim Horton’s restaurant some two kilometres away. In the meantime, the father called the police complaining that the children were missing while in the mother’s care. The children told police they were afraid of their mother. The mother arrived at Tim Horton’s and spoke with the children privately. The children were then content to have their mother buy them breakfast and take them to school.

[85] Later that day, the mother went to the police station and reported the sexual assault allegations. She denied that she did so for any form of revenge because the father called the police on her. Her evidence was that she had tried to report the incident the day before but was told she would have to give a videotaped statement, which would take several hours to complete. She did not have the time that day. Her intention on April 1, 2016, was to drop the children at school and then go to the police station. That is exactly what she did.

[86] On August 7, 2016 the mother called the police when the children did not arrive at the Loblaw’s parking lot near the father’s residence for her week of access in August. The police attended at the father’s residence but he initially refused to speak to them and insisted that they speak with his lawyer. As his lawyer was out of the country the call connection was poor and communication was difficult. Ultimately, the father spoke with police briefly and told them that he did not have to give the children to the mother for summer access.

[87] The mother had paid for a chalet at Blue Mountain so that she and the children could spend a week there. She waited for the children at the parking lot with a car loaded with food and supplies for the week. The father’s position was that she or her lawyer had failed to give the proper notice in writing for the week of vacation. The mother was not cross-examined about this incident.

[88] The mother was to have given written notice of her vacation plans. Apparently that was not done (or it may have been done and lost in the shuffle between the father’s previous and current lawyer – the evidence was not clear on this). However the children were aware of the plans, having helped the mother select a location for the vacation.

[89] The day before the vacation was to begin, the father received an email from the mother’s lawyer directly. His lawyer was on vacation and left a message indicating that there was no way to communicate with him while he was away. The email was sent to re-confirm the mother’s vacation plans with the children. After the arrival of the police and long distance negotiations with the father’s lawyer, the children were released to their mother at 4:30 p.m. instead of noon. The father refused to allow any additional access time to the mother for the late release of the children.

4) The s. 30 Assessment and the Evidence of Ms. Ilana Tamari

[90] Ms. Ilana Tamari has a master’s in psychology and is an accredited mediator and parenting coordinator. She has been in private practice since 2002 and specializes in high conflict family cases. She has written hundreds of s. 30 assessments. Her qualifications in this case were not contested.

[91] A consent order was made in September 2015, appointing Ms. Tamari after the OCL report was collapsed. After several months of investigation, Ms. Tamari held a disclosure meeting with the parties and their counsel on March 3, 2016. During that meeting, Ms. Tamari recommended joint custody because she testified that she did not want to disenfranchise either parent. She recalled that the mother was very hesitant about agreeing to joint custody. She was fearful that it would be difficult for her and the father to make joint decisions about the children given his anger about money issues and the difficulties she had experienced in getting the father to respond to her.

[92] In addition, Ms. Tamari recommended a 2/2/5 access schedule that was to commence in September 2016. At the request of the parties, Ms. Tamari was appointed the Parenting Coordinator. She was to mediate or arbitrate any issues or disputes between the parties if there was an impasse.

[93] The parties settled all matters on March 3, 2016, by way of Minutes of Settlement. As a result, no s. 30 assessment was written until it was requested by the mother’s counsel in November 2016.

[94] Ms. Tamari spoke to the CAS worker, Mr. McMullan. He told her that the father had admitted to him that he shared adult information with the children, behaved inappropriately, and told the children that their mother did not love them because she put her job ahead of them. He also told the children that she was spending their college education money on lawyers.

[95] Ms. Tamari played some of the audiotapes for the father in which he used inappropriate language and was disparaging of the mother in front of the children. Ms. Tamari testified that the father seemed genuinely affected by what he heard and promised it would not happen again.

[96] During re-examination an audiotape was played for Ms. Tamari in which L.S. is heard yelling at his mother saying, “Let’s see who gets fucking custody.” Ms. Tamari commented that L.S. should not have been made aware that there was a custody battle going on. She testified that she thought the father was unduly influencing the children. Her view was that this type of behaviour is incredibly harmful to children and can be just as harmful as physical abuse.

[97] A visit at the mother’s home was arranged with Ms. Tamari. She described the children’s interaction with their mother as “odd.” She reported that none of the usual hierarchy between children and a parent seemed to exist. The children were in charge. She described the children as belligerent, disrespectful and unruly.

[98] Ms. Tamari was asked if there was a difference in the children’s behaviour when the father wants to cooperate with the mother and when he does not. She responded that the children are very aligned with their father. When he is supportive of their relationship with their mother, the children are correspondingly supportive and respectful. When there is chaos and they hear disparaging remarks about their mother, the opposite occurs.

[99] At one point in her report, Ms. Tamari recited that O.S. told her that her mother was mean to her. When asked for an example, O.S. could not provide one. It was Ms. Tamari’s evidence that when children of that age (O.S. was nine at the time) cannot come up with an example, it is because there is not one.

[100] Ms. Tamari also questioned the father about his admission that he had slapped the mother on the behind numerous times. This ultimately led to the mother laying a charge of sexual assault against the father. The father was dismissive of his behaviour saying that the mother was crazy, that it was only in jest and that the mother had misinterpreted his actions.

[101] Ms. Tamari was candid about the parties’ communication with one another. She testified that the mother was willing to communicate with the father and be flexible. However, the father was sometimes belligerent and angry and would use communication to belittle and demean the mother. The children were sometimes present when the father demeaned the mother.

[102] Ms. Tamari recommended joint decision making for school and sports enrolment. Because of where the parties lived and the traffic in the city, she felt that location had to be taken into account with respect to transporting the children. She was not in favour of the children dictating where they would play sports or go to school if it created a transportation problem.

[103] Ms. Tamari was not in favour of the children being moved to a school outside the C[…] Street district where the father resided. She was against the mother insisting on a school change to one that was more convenient to her.

[104] The children reported to Ms. Tamari that they wanted to spend more time with their mother and they wanted her to make them a priority in their life. It is clear that they love both parents but find the fighting between them to be very stressful. She found that the children were caught in a loyalty bind and sided with the parent whom they perceived to have more power (the father). This did not prevent her from recommending that if the father’s undermining of the mother continued, the mother should have full custody as she was the parent more able to support functional communication between the parents.

[105] After the Minutes of Settlement were signed, Ms. Tamari took on the role of Parenting Coordinator. Both parties signed the parenting coordination agreement and were in favour of appointing Ms. Tamari. When asked about how the parenting coordination went, Ms. Tamari was not enthusiastic. She testified that the father minimized her role as Parenting Coordinator. He did not stop disparaging the mother and he acted as if he was not required to abide by the terms of the Minutes of Settlement. In contrast, the mother was compliant and naturally frustrated with the father’s lack of compliance.

[106] Ms. Tamari was shown an email she wrote on April 25, 2016, to the mother’s counsel. In that email Ms. Tamari made several significant comments, which are listed below:

(a) The father was uncooperative and not responding to her calls, texts or emails. He insisted that O.S. go to Scarborough to play on a particular hockey team and did not take O.S. to try outs for other teams that were closer to home. He does not bring O.S.’s hockey equipment to the mother or encourage O.S. to do so.

(b) When Ms. Tamari told the father that she had the authority to apportion costs against him if he did not cooperate, he was dismissive and belligerent.

(c) If the father continues to influence the children against the mother, interim sole custody to the mother should be considered.

(d) During conversations with the father, he talked over her, was rude and highly dismissive. He admitted to slapping the mother on the buttocks but thought it was a joke.

(e) The father disagreed with Ms. Tamari about aligning the children against the mother and told her they were entitled to know “the truth.” She described him as acting above the law and difficult to reason with. She thought that the father felt he had ownership of the truth.

(f) He does not encourage or support the children having a meaningful relationship with their mother. This was of utmost concern.

[107] During the period when Ms. Tamari was the Parenting Coordinator, she described the father’s level of cooperation as a two out of ten with one being the least cooperative. She described the mother’s level of cooperation as a nine out of 10. She described the father as “ungovernable” and unable to accept the gravity of the terms of settlement. The father told Ms. Tamari that he could not co-parent with “that bitch” and that the mother was crazy. Ms. Tamari was clear that at times the father fully understood the impact of his negative behaviour on the children yet he did not stop doing it. He lacked impulse control and his communication with the mother was not respectful. It was concerning to her that the children mimicked the negative words and phrases used by their father.

[108] In another email dated May 2, 2016, Ms. Tamari reiterated that the father was unresponsive and uncooperative and that if such behaviour continued, serious consideration should be given to awarding sole custody to the mother. Ms. Tamari was clear, however, that the parenting coordination agreement did not extend her authority to changing custody. She could only enforce the Minutes of Settlement. She went on to state that she supported sole custody to the mother with supervised visits to the father. She suggested the father take an anger management course and the parties should be involved in intensive therapy with the children to deal with all of the conflict. Ms. Tamari was of the view that even though sole custody to the mother would be a significant change to the arrangement during the period of the parenting coordination agreement (March to May 2016), for her it was about which parent was more supportive of fostering a relationship with the other parent. In this case, it was the mother.

[109] Ms. Tamari was asked to explain her view on supervised access. She testified that it would be an interim measure while therapy and anger management was ongoing. It would temporarily prevent the father’s repetitive maligning of the mother.

[110] Ms. Tamari testified that there was some merit to the father’s complaints that the mother put her work first but not to the extent attributed to those complaints by the father.

[111] Ms. Tamari was shown a copy of the father’s affidavit dated May 6, 2016. This affidavit was sworn in support of the father’s motion to have the OCL appoint counsel for the children. Ms. Tamari had made comments on this affidavit where she felt it was inaccurate. For example, she felt that the re-appointment of the OCL was a waste of taxpayer’s money and that a Voice of Child report was not recommended where undue influence of the children is an issue.

[112] Ms. Tamari mentioned that at one point the father’s cheques to her bounced. He replaced them on May 5, 2016, and told her that he was willing to cooperate but between that point and the end of her time as Parenting Coordinator, his behaviour did not change.

[113] The police contacted Ms. Tamari about the sexual assault allegation made by the mother. She was obliged to tell them about the father’s admissions with respect to slapping the mother on the buttocks. After that, and combined with the father’s lack of cooperation, Ms. Tamari felt she had no choice but to recuse herself as Parenting Coordinator. She felt both ineffective and conflicted.

Credibility of the Parties

[114] The parties’ accounts of the various incidents over the last four years varied greatly. The father, in particular, downplayed his anger and behaviour that, by his own admission, was inappropriate. He sought forgiveness and promised the OCL, Ms. Tamari and the CAS that he would not expose the children to adult conflict and contain his anger towards the mother, but he was incapable of keeping those promises. The fact that he continued repeating the same behaviour supports this finding. His constant protestations that he put the children first belied his attitude towards the mother and his lack of understanding of the importance of the children’s relationship with her.

[115] With respect to the mother’s evidence, overall I found her to be an honest, articulate and credible witness. Her evidence regarding the stark contrast of the children’s behaviour towards her just prior to separation and now was shocking and frankly, heart-wrenching. Attempting to digest the change from loving children to ones who wished their mother had died in a car accident, swore at her, threw things at her and wished they could be “signed over” to their father was a difficult task.

[116] I accept her evidence that her relationship with her children has been severely damaged because of the father and his family’s alienation and denigration of her character through text, email and verbal exchanges over the last four years. Her testimony was compelling with respect to how she felt the children had been “ripped out of her life” and that the father had broken their hearts and hers out of spite for financial matters that had not been settled. I accept the mother’s view that if the father had managed his anger and hate towards the mother and put his children’s needs first, this trial would not have been necessary.

[117] Because of the significant amount of evidence given by both parties in this case, it is perhaps most effective to highlight a number of issues where the parties differed in their views and provide some background as to why this court prefers the mother’s evidence over that of the father.

Hockey

[118] O.S. loves hockey and she is a good player. The father signed O.S. up for hockey in 2014 and 2015 in a Scarborough league without the mother’s knowledge or consent. He admitted during the course of his evidence that he likely told O.S. not to tell her mother what he had done. O.S told the mother that the father did not want her to know that he had signed O.S. up for hockey because the mother did not support her in hockey. O.S. then told her mother she did not want her to bring her to hockey anymore and I accept the mother’s evidence that she was deliberately left out of the loop. I accept that the mother was not given information, was not able to make all games and practices due to work and distance, and that all of this was unfairly interpreted by both the father and O.S. as her not caring about O.S.

[119] A further problem was the exchange of hockey equipment. The father controlled the equipment. There were often issues about availability of the equipment when the mother was to take O.S. to games and practices. There was considerable evidence about this issue. I accept the mother’s evidence that on occasion when she went to retrieve O.S.’s equipment, she was told (in front of the children) that if she cared about them she would buy her own set of equipment.

[120] In short, I find the father used the equipment to manipulate the mother because she had to come to his house to retrieve it. Sometimes he was not there or showed up late. Somehow this was all blamed on the mother. The equipment situation was such a concern that a term of my June 12, 2017, temporary order was that the father was required to give the mother O.S.’s current hockey equipment and buy a new set of his own for her that he would keep.

[121] The March 2016, Minutes of Settlement required that the parties jointly agree on extracurricular activities. Despite this agreement that both parties signed with independent legal advice, the father blatantly breached it.

[122] The mother sent the father several messages via Our Family Wizard in March 2016, about options for O.S.’s hockey. The father simply did not respond. He admitted that he did not respond in an affidavit sworn May 6, 2016. The father wanted O.S. to play with the Scarborough Sharks team. The mother was against this because driving to Scarborough was simply too far given her home and work locations. She arranged for O.S. to try out for other Toronto teams, which would be closer for both parents. She had worked hard to have the joint decision making provision in the Minutes of Settlement for this very reason. She did not want the father to continue his unilateral registration of the children in extra-curricular activities.

[123] In a recorded conversation from April 2016, between the mother and O.S. that was played during the trial, the mother tried to explain to O.S. that decisions related to extra-curricular activities were now to be made by both parents. O.S.’s responses to her mother were shocking given that O.S. was only 11 at the time. She told her mother, “you don’t make the only choice,” “yeah and [the decision] is not made by you,” and “well, you’re not the boss.” I accept the mother’s evidence that these responses parroted many similar responses made by the father. During the conversation, the father can be heard whispering to O.S. in the background.

[124] In the end, the father signed O.S. up with the Scarborough team without the mother’s consent or knowledge. The father explained that this was because O.S. did not want to play on any other team nor did he encourage her to try out for any other team. The father testified that he could not drag his daughter onto the ice if she did not want to play so she made the choice. This type of empowerment of the children by the father was a theme throughout the trial. The father would simply shrug his shoulders and say that he could not force the children and that it was their choice. Over time, this type of parenting by the father has resulted in the children becoming more and more bold and empowered to the point where, by the time of trial, they were dictating when they saw their mother and on what terms and denigrating her using the same terms the father used.

[125] M.C. was called as a witness by the father. Mr. M.C. was O.S.’s hockey coach last year. He conceded that he received an email from Ms. Tamari advising him that she would be deciding where O.S. played hockey as the parents could not agree. However, he heard nothing further. He had no explanation as to how the father was able to enroll O.S. in hockey when he knew the mother did not agree to the Scarborough team and Ms. Tamari advised him of this as well.

[126] Mr. M.C. brought along a copy of the Scarborough team book for 2016. It had photos of O.S. and the other players. Each player was given three copies of the book, one for each parent and one of their own. The mother had never seen the book until it was entered as an Exhibit at trial.

[127] Finally, there was the February 2014, incident at the hockey arena that resulted in the mother calling the police. This has been described above. It was the mother’s access time but the father insisted on coming into the change room to re-tie his daughter’s skates. I accept the mother’s evidence that a discussion had been mediation that the mother had to learn things such as how to properly tie O.S.’s skates in order to become more involved with O.S.’s hockey. She was willing to do this and was getting help when the father came in and took over. I find this undermined the mother’s efforts and reinforced with O.S. that only her father should be involved with her hockey.

The Mother’s Family

[128] The mother was adopted but considers her adoptive family to be her “real” family despite having met some of her biological relatives. Prior to separation the children had a loving relationship with their maternal grandmother. However, post separation that changed dramatically. They refused to visit with her, even on her birthday, claiming that she was not their biological grandmother.

[129] In 2016 the children walked out of their maternal grandmother’s 88th birthday celebration and met their father who was waiting for them down the street. The mother ran after the children asking them to return to say goodbye to their grandmother. They refused, claiming the mother had “changed the rules.” By this they meant that they had not been told about having to attend the birthday at the end of their summer vacation. A recording was played of the children’s argument with the mother about this. The recording was shocking. The children were alarmingly disrespectful towards their grandmother and the mother. L.S. told his mother, “I don’t give a shit about Grandma.” The mother compared this with L.S.’s attitude prior to separation. She described him as gentle, soft spoken and polite. She testified that he is now agitated, nervous, and defiant and that he speaks to her in the same disrespectful way that his father does.

[130] Both parties have had periods in which they suffered rifts with their own family. The father’s rifts with his sisters were far more profound than the brief ones the mother had with her own mother and brother. The father was determined to portray the mother’s brother, C., as an alcoholic during the trial. At one point, the father randomly threatened to knock C.’s teeth out in front of O.S. and the mother. No matter what his view of C., he had no right to make such a threat. This was yet another angry outburst by the father, which demeaned the mother’s family in front of the children.

The Mother’s Schedule

[131] Throughout the trial, the father was focused on demonstrating that the mother’s schedule did not permit her to spend adequate time with the children. He insisted that during their relationship she often did not return home from work until 9:00 p.m. He testified that he would come home early while the mother worked long hours. This was not illustrated in the evidence.

[132] Mr. R.C., one of the father’s witnesses, lived beside the parties between 1998 and 2004. His observation was that the mother sometimes arrived home early and other times between 6:00 and 7:00 p.m. The parties had a full time nanny for L.S. at the time.

[133] Ms. P.B., another of the father’s witness, worked at G[…] Public School with the mother for about 2.5 years. They were both Vice Principals. Ms. P.B. testified that she and the mother often left work between 5:00 and 6:00 p.m. and sometimes later.

[134] Ms. C.G., also the father’s witness, worked as a nanny for the parties from the time L.S. was aged two. Once the children were in school full time she went to part-time hours, picking up the children at lunch, giving them lunch and then receiving the children from school at 3:30 p.m. Her evidence was that the parents would arrive home around 6:00 p.m. Sometimes the mother arrived first and sometimes the father arrived first. Importantly, she testified that the parents went to the children’s sports activities together. She also testified that the children were very loving towards their mother and their maternal grandmother. She was clear that both parents were equally involved in the children’s activities and appointments.

[135] If one accepts the father’s evidence about the children’s and household routines, the mother did nothing. She went to work at 7:00 a.m. and came home at 9:00 p.m. She cooked no meals, and did not have time to take the children to their appointments or activities. I do not accept that this is the way the household operated during the relationship.

[136] There is no reason not to accept the evidence of Mr. R.C., Ms. P.B. and Ms. C.G. whose evidence contradicted that of the father. Their evidence shows a mother who was loving and involved. Not surprisingly, sometimes her work required her to stay late or arrive early but that did not affect her relationship with the children.

[137] I accept the mother’s evidence that her working hours were not extraordinary and that she was equally involved with the children during the relationship. I accept her evidence that both parents on occasion arrived home late because of work commitments. I accept that she went to all of the parent-teacher interviews, found and hired the nannies, signed up the children for their summer camps, went to their activities and signed L.S. up with his first soccer team. In short, I reject entirely the father’s evidence that the mother was minimally involved with the children during the relationship. Further, I find that the father’s evidence on this point during the trial was intended to mislead the court and undermine the mother’s involvement and commitment to the children.

[138] Finally, I accept the mother’s evidence that she is now working in a much smaller school than she was on the date of separation and that her working hours are entirely regular.

The Father’s Anger and Control Issues

[139] The father has anger issues. He admitted this both in his examination-in-chief and in cross-examination. The father swore an affidavit on September 11, 2015, in support of a previous motion. He stated that he was an emotional person who got upset too easily. In cross-examination he tried to temper this by saying that he no longer agreed with that statement and he may have unintentionally misled the court. To the contrary, I find that this sworn statement of the father’s is quite accurate and supported by the evidence. The father’s own evidence was that he knows he should not talk about certain things in front of the children. Nonetheless he stated, “When I lose control, it is hard to stop suddenly. She is trying to steal from me and manipulate my life to the point of bankruptcy.”

[140] First, there are the circumstances of the separation. The father became very angry with the mother after an argument and left the cottage abruptly with L.S. He did not deny calling the mother an “f’ing liar” in front of the children. He left the mother to deal with a distraught O.S. and cottage renters who were imminently arriving. He also kept L.S. out of camp the following week and refused to allow the mother entry to C[…]. His actions were selfish and apparently unprovoked. He tried to justify his behaviour by arguing that the mother bought a car without his knowledge, but even if that were the case, his reaction was disproportionate. As indicated above, the reverberation of the father’s actions on the date of separation set the tone for this bitter and litigious separation.

[141] The father also admitted that he occasionally became angry with O.S. and L.S.’s coaches. He tried to explain this away by claiming that he was simply standing up for his children. I prefer the mother’s version. Her evidence was that the father often made inappropriate comments on the sidelines that were embarrassing for the children. The mother’s evidence was that he often interjected and contradicted the coach’s instructions. When the mother asked him to stop he said he couldn’t give a “shit” and that he could say what he wanted and she could not stop him. For two years in a row, L.S. was not asked back to his house league soccer team and had to change teams because the father was unable to control his temper. I agree with the mother’s observations that this was humiliating for the children and impeded L.S.’s soccer development.

[142] At one point (the date of this incident was never clarified in the evidence although both parents spoke of it) the mother attended a soccer practice for L.S. with both children. The father was also present although it was not his access time. O.S. was being rude to the mother and the mother became upset because she felt the father was encouraging O.S. to be rude. The mother was leaving the practice with the children and they wanted to say goodbye to their father so she rolled down the car window. The father then hurled a number of extreme insults at the mother in front of the children.

[143] Mr. F.L. was called as a witness by the father. He has been L.S.’s soccer coach for the last four years. He was there when the abovementioned incident occurred. He could not hear everything the father said but he agreed that the father was very upset and that he heard him tell the mother that she did not care about the children and that he said other negative things about her in front of them. He agreed that at other times the father had spoken negatively of the mother in L.S.’s presence.

[144] Overall I find that Mr. F.L. minimized the father’s bad behaviour because he was aligned with him. For that reason he seemed not to be able to recall that the father also called the mother a “slut” and a “fucking whore” in front of the children during the course of the confrontation at the soccer practice.

[145] The father’s anger and resentment towards the mother about financial issues made him act unreasonably. For example, the father refused to pick-up and drop-off the children at F[…] even when the mother moved there and even though it was closer to C[…]. He explained he was too angry about the financial issues surrounding F[…] to go there. The mother had to serve a motion before the father finally agreed to access exchanges taking place there. The father agreed that it made no sense for pick up and drop off to take place at the maternal grandmother’s home after the mother moved to F[…], yet it took from November 2014 until September 2015 for the father to agree to change the exchange location.

[146] The father’s reactions to F[…] may be understandable given his claim for a trust interest in the property, yet those reactions created considerable stress and conflict for access exchanges. This was the home that the parties renovated and intended to move to, yet post separation the father refused to go there. When the mother wanted to enroll L.S. in a local school (where L.S. may well have gone if the parties had moved there during the relationship), the father complained about the neighbourhood. Interestingly, when the parties first began to litigate, the father’s position was that he wanted to live at F[…] with the children.

[147] When the mother moved into F[…] in 2014, the children resisted going there. I accept the mother’s evidence that they told her that she was a thief and a cheat and that she had stolen from their father. What was formerly and lovingly known as the “big house” where they would all live someday was now a source of derision for the children. This significant change in attitude could have come from no other source but the father.

[148] The father’s subsequent reaction to F[…] appears to have been fueled by his uncontrolled anger towards the mother in relation to the outstanding financial issues. One may infer that the father’s initial refusal to pick up the children at F[…] would have been confusing to them since throughout their childhood they were told this was to be the future family home.

[149] During the summer of 2014 the mother was returning home from the cottage with the children. She was 45 minutes late dropping them off due to traffic. The mother had texted the father several times to let him know but upon dropping off the children, the father was angry and insulting to the mother in front of the children and told her that he would be keeping the children an extra 45 minutes on his visit as “make up” time. The mother questioned this given that she had allowed the children significant extra time with the father the weekend before for a family wedding without asking for “make up” time in return.

[150] The following week, the mother arrived at the usual time to pick up the children but they were delivered 45 minutes late. She tried to text and call the father but he would not answer. This type of petty and unnecessary action on the part of the father delivers two messages to the children: (1) the mother has done something wrong and (2) they cannot compromise as parents.

[151] The mother requested L.S.’s original health card to take him to the doctor. The father refused to provide it claiming that the mother had a copy and that should have been sufficient. At this point, Ms. Tamari was the Parenting Coordinator. She became involved and requested that the father deliver the health card to the mother. The father’s evidence about this at trial was that Ms. Tamari was both unreasonable and demanding. This was the father’s explanation despite his agreement that Ms. Tamari act as the Parenting Coordinator and mediate or arbitrate issues the parties could not resolve themselves.

[152] In June 2016 the mother requested that the children take the subway to meet her so that it would be easier for her to take one of them to a game or practice. The children refused. This was because the father said that the agreement was that the children were to be picked up at home or at school and that doing otherwise was “changing the rules.” This is the exact line used by the children when they told their mother they refused to use the subway. Only after the father reluctantly gave the children permission did they agree to use the subway to meet their mother. The children were old enough to take the subway together. It defies logic as to why the father would not agree to this especially when it was requested in order to ensure that one of the children would be able to get to a game or practice on time.

[153] Post separation, the mother arranged for a sleepover with L.S. and one of his friends. Prior to separation the parties had agreed that they were not in favour of sleepovers for the children. However, after separation the mother supported sleepovers for the children. When the father found out about the planned sleepover he was furious and texted both children. Once again the issue of the mother “changing the rules” came up. The father assumed that the rules prior to separation would continue. He did not contact the mother to discuss his views about the sleepover. He resorted to sending nasty texts to the children, which put them in the middle of the conflict and upset them enormously.

[154] The father often refused to answer the mother’s calls and texts. He admitted this and admitted that at one point he changed his phone number so that she could not contact him. He claimed that his refusal to answer was because the mother sent him obsessive and insulting texts. However, he was unable to produce a single text to prove that this was the case.

[155] Further, because the father paid for the children’s phones he exercised a form of dominion over them. When the mother asked to see the children’s phones for safety reasons (i.e. as she explained, to see what websites they were viewing and to ensure no social media bullying was taking place), the children reacted rudely and refused to allow her to see them. They told her that since the father paid for the phones she had no right to look at them. The fact that the father had shared with the children the fact he paid for the phones is distressing on its own, but the children parroting this as a reason not to allow their mother to view their phones is another example of the father’s subtle and ongoing undermining of the mother’s authority.

[156] The most damaging part of the father’s actions regarding the cell phones was the message imparted to the children that it was okay to ignore their mother when she wanted to speak to them. The mother produced hundreds of texts showing her attempts to reach the children that were either rebuffed, not answered or answered with a single-word dismissive response. I accept that at times the children blocked the mother’s calls and texts, simply did not respond or responded in a disrespectful manner, all of this sanctioned implicitly by the father’s own attitude that responding to the mother was optional.

[157] In contrast, the children had regular and unimpeded telephone access to their father when they were with their mother. They called and texted him frequently without interference from the mother. However, this was not without its problems as the father would sometimes insult or undermine the mother when texting the children. Texts introduced at trial included ones where he asked the children if their mother was drinking wine (which she usually does not) and what kind of dinner she had made for them (the mother testified that the father was a better cook than she was and that he was often insulting about the mother’s cooking abilities). At times the father would send nasty messages to the mother directly via the children’s phones.

[158] The father’s anger about the outstanding financial issues in this case were a constant theme throughout the trial. It was clear that he felt mistreated and financially abused by the mother. The fact that she took the position that he did not have an interest in F[…] (the father has claimed a constructive trust interest in the property based on his contributions) and the fact that the mother has refused to pay support (she maintains their incomes are similar as the father earns unreported cash) were clearly infuriating to the father. He testified that he has been “abused financially and held hostage to the point of terrorism.”

[159] This anger fueled many of the father’s reactions to the mother post separation. In front of the children he told the mother that she loved her students and her dog more than her own children, that she was a cheat and a liar who could not be trusted, that he would bankrupt her and that she would lose the children. The father conceded he may have said these things, but in anger. It is not hard to understand how the children could have become so transformed and hateful towards their mother having witnessed and then believed many of these insults. In fact, the children would often parrot these insults. It is telling that as recently as this year, L.S. told his mother, “Let’s just see who gets custody.” How could he say such a thing unless he knew details of the litigation and was aligned with his father?

[160] The father was candid about the fact that he told the children that the mother did not pay for any of their activities. Again, the evidence of O.S.’s hockey coach and the documentary evidence the mother produced did not support the father’s assertion. It is true that at some point post separation the father was paying for a proportionately larger share of the activities but I find that this was because the mother was not informed of the amounts or the registration details. The father was not able to point to a single letter from his counsel asking the mother to contribute any amounts.

[161] Unfortunately, the result of the father’s inappropriate repetitions to the children that the mother did not contribute to their activities was that the children adopted an attitude that their mother did not “deserve” to take them to their games or practices because she had not paid anything. They were blunt and hurtful to the mother about this as evidenced in the audio recordings.

[162] The father’s anger towards the mother has led him to over share with the children. He does not deny that he has told the children they should not trust their mother because he feels he has been unfairly treated by her with respect to financial issues. He does not deny that he shares his feelings with them about the litigation despite having been told by the CAS, the OCL and Ms. Tamari not to do so.

[163] The father does not deny that he told the mother that he will speak to her only until the children are older and then never again. He was shown an email sent to him by the mother in August 2015, in which she quoted him as calling her a “fucking whore” and a “despicable fucking whore” and that he would rather pay a lawyer than give her a “fucking cent.” The father said he could not recall saying those specific things but did not deny that he called the mother names. It should be noted that in cross-examination the father’s most common response was “I don’t recall” to propositions put to him about his bad behaviour and anger. Yet, remarkably, he had an excellent memory for anything that related to the mother’s behaviour.

[164] The father admitted that as far back as 2014 the CAS expressed concerns to him about his behaviour and sharing adult issues with the children. He agreed that he told them he would modify his behaviour. He could not deny that events that unfolded afterwards indicated that he had not changed. He also did not deny that he told the CAS that he did nothing to promote the children’s relationship with their mother. Notwithstanding his further assurances that he would change, in November 2015, he once again lost his temper in front of the children and the mother as per the shocking tape that was played to the court. A further tape recording was played from December 2015, in which the father angrily and repeatedly told the mother she did not care about the children. This took place in front of O.S.

[165] The father admitted that the Minutes of Settlement signed on March 3, 2016, had a specific provision that prohibited either parent from disparaging the other in front of the children. Despite having agreed to this, with independent legal advice, he belittled the mother by phone in front of the children during a tirade on March 8, 2016. He did not deny this but claimed he was provoked. It should also be kept in mind that this tirade took place within days of the father being warned by Ms. Tamari that if he continued to share adult issues with the children, she would consider recommending sole custody to the mother.

[166] One of the most telling parts of the father’s evidence was his inability to come up with an answer to the court’s question of what three things the mother did better than him as a parent. After several very long pauses he was able to say she is able to calm the children when they are hyper and she is better at involving them in household chores. The long silences were awkward and his answers more interrogatory than confirmatory. It was clear that the father was unhappy about having to admit that the mother did anything better than him as a parent. By contrast the mother was able to immediately list that the father is more artistic than she is, that he is better able to teach the children about building and design and that he is a better cook. She had no hesitation in listing those qualities.

L.S. Change of Schools – September 2016 and the Fallout

[167] In August 2016, Kiteley, J. made an order allowing the mother the authority to decide where L.S. would attend school in Grade 8. L.S. had expressed a desire to attend W[…] Public School. The mother tried to enroll him at W[…] but was unsuccessful because L.S. lived outside the school catchment area and the school was already filled with students from its catchment area.

[168] L.S. had made it clear he did not want to attend E[…] Public School. The mother decided to enroll L.S. in S[…]'s the Evangelist Catholic School, which was near F[…].

[169] The father did not support the change of schools. Not surprisingly, L.S. was of the same view and basically refused to attend. Instead of attending school he would often go to the father’s house during the day. As the court noted earlier, the father did not impose consequences for this truancy. On the contrary, he allowed L.S. to stay at his home, gave him lunch money and continued to take him to his soccer games and practices.

[170] Ms. L.G. was called as a witness by the father. She is the principal of S[…] the Evangelist. She testified that L.S. did not attend for the entire first week of school. He came with his father for a tour and Ms. L.G. perceived that the father was encouraging his attendance. However, when L.S. finally began to attend in the second week he did not participate and was not engaged. His attendance continued to be sporadic. Ms. L.G. agreed that in her experience L.S.’s behaviour was odd and that she had never seen a student exhibit such resistance to attending a school.

[171] L.S. was bitter and resentful towards his mother about the school change. He told her it was in a “sketchy” area. This is a most interesting comment because it was near F[…], the chosen family home. He also complained that S[…]’s was not as highly ranked academically as E[…]. This was a very surprising comment coming from L.S. and I accept the mother’s evidence that she never discussed school rankings with L.S. I find that the source of these comments was the father. In his campaign to undermine the mother he had rejected F[…] and everything associated with it (including the neighbourhood) and used school rankings as a way to plant the seed with L.S. that S[…]’s was inferior to E[…]. This was made clear in his evidence at trial when he said, “She [the mother] took him out of a school above provincial average and put him into one that was below average.”

[172] L.S.’s treatment of his mother during this time was shocking. In a recording from September 29, 2016, L.S. says the following to his mother: “Shut up. I don’t want to hear from you. You are a selfish asshole. You fucking liar. You can put me in E[…]. You are a selfish fuck. You are really disgusting. You don’t give a shit. Did you pray yet? Did you check the school rating before you put me there?” The mother testified that this is similar to the way the father would speak to her in front of the children. I accept this as true. How else would the children learn such disgusting language or learn that it was acceptable to speak to their mother that way?

[173] Ms. L.G. testified that the mother came to the school in late October 2016. The mother observed that L.S. was despondent and conflicted. She decided to switch him back to E[…]. Recall that this was the school the father supported and the school that L.S. said he did not want to attend initially. Remarkably, once back at E[…], L.S. attended regularly and resumed his previous academic level.

[174] I find that the school issue in the fall of 2016 is a good example of how the father’s influence and undermining of the mother’s decisions has had a devastating effect on the children. While outwardly seeming to support S[…]’s, the father had made it known all along that he supported L.S. going to E[…]. He then made derogatory remarks about the location and ranking of S[…]’s.

[175] Despite L.S. telling both parents he did not want to go E[…], he seemed happy to go when it became clear that the father supported E[…] and not S[…]’s. Ms. L.G.’s testimony was instructive. She is a very experienced principal. For her to testify that she had never seen a student react the way L.S. did cannot be ignored. Clearly he was conflicted by the different messages he was receiving from his mother and father. It was evident from the father’s testimony that he was upset and resentful that the mother had been given court-ordered authority over education decisions related to L.S. This was either explicitly or implicitly communicated to L.S., who reacted by rejecting S[…]’s and changing his behaviour to the point where he would have failed his year had the mother not agreed to allow him to attend E[…].

[176] The father’s criminal charges arising in April 2016, and the school issue with L.S. in the fall of 2016 were both catalysts for the most extreme changes in the children’s behaviour. Audiotapes of L.S.’s exchanges with his mother regarding his demands that she send him to E[…] were difficult to listen to as outlined above. He swore at his mother and was disrespectful in the extreme. At one point he told his mother (as per another recording) that he had had a good time on his birthday because she was not there.

[177] The Minutes of Settlement required that the parties commence a 2/2/5 access schedule in September 2016. Notwithstanding that agreement, the father (and his counsel) appeared to believe that the Minutes of Settlement were negotiable. In a letter dated August 30, 2016, the father’s counsel proposed to commence the 2/2/5 access schedule as of September 5, 2016, if the mother agreed to enroll L.S. in E[…] school (among other demands). This is somewhat remarkable given that the parties had already agreed to the 2/2/5 schedule commencing in September 2016.

[178] It is therefore not surprising that on September 10 and 23, 2016, the mother’s counsel was obliged to write to the father’s counsel complaining that the children were not attending for their scheduled access with her. I find that the mother’s allegation in that correspondence that the father was telling the children they were not obligated to go for access is accurate. The father was angry about financial issues, the criminal charges and the mother’s decision to send L.S. to S[…]’s. Thus began in earnest the father’s implicit support of the children’s empowerment to decide when and if they would see their mother.

[179] The situation deteriorated to the point where, on October 5, 2016, the mother announced that she was foregoing access for a period of time until the parties and children could attend intensive counseling. The mother reached this difficult decision after several situations in which the children were out of control and violent in her care. L.S. threw a hacky sack at her. O.S. threw rocks at her car and stood on the roof of the car refusing to come down. The children threw items around the mother’s house and destroyed her property. The children began to follow her around the house and bump into her asking what she was going to do about it. L.S. knocked her car keys out of her hand and bumped into her so hard she fell to the ground. They swore at her, insulted her and called the police and made false allegations about her. The mother was devastated and did not know what to do. She decided to give the children some space and get help.

[180] It should be noted that although matters reached a head in October 2016, the children’s behaviour towards the mother had been problematic long before this. The mother brought a motion for a s. 30 assessment in 2015 due to her concerns about the father’s undermining behaviour. Many examples of this behaviour in 2014 and 2015 are set out in this judgment.

[181] The father feigned shock and surprise but got what he wanted. The children began to tell the CAS and others that the mother had “signed them over” to the father. The father seemed only mildly concerned about the children’s shocking behaviour that led to the mother suspending access.

[182] Counseling with Yorktown began but was slow. The children saw their mother for dinner after their counseling session with her and occasionally for a few hours on weekends, but never for overnights. The children assumed complete control over when and if they would see their mother. The father did not intervene claiming he could not force them to see their mother if they did not want to. This situation continued until my interim order of June 12, 2017, which changed the parenting plan such that the children lived with their mother for the entire summer.

[183] When the mother began to request that access recommence in early 2017, she was stalled and stonewalled by the father and his counsel. Correspondence went unanswered and vague references were made to dealing with access at upcoming court conferences or at Yorktown. As early as January 2017, Yorktown made it clear that they would not provide any opinion on an access schedule. No commitment was made by the father to increase access. His evidence at trial was that “counseling hasn’t given me a timetable.” He conveniently deferred the issue of access to Yorktown while being fully aware that they made it clear they would not provide any opinion or timetable for increased access.

[184] I accept the mother’s evidence that progress would be made at her counseling sessions with the children at Yorktown and an agreement for overnight access would be made, but once the children returned to their father, the commitment was never honoured.

[185] The father misinterpreted the mother’s reasons for suspending access. His assumption was that she had given up access and that the terms of the Minutes of Settlement and subsequent order no longer applied (even though they had never been varied nor did the father ever apply to vary them). Thus, when the father was involved in a tobogganing accident in December 2016, he was content to allow his sister, A., to look after the children while he was in hospital. He completely ignored the mother’s offer to care for the children (and the fact that she had taken time off work to do so) or the terms of the settlement, which required that if one parent could not care for the children overnight, the other parent had the option to do so.

Christmas and Summer Access – 2013 to 2016

[186] The father’s attitude towards arranging holiday access with the mother is telling. I accept the mother’s evidence that she would make proposals for Christmas and summer access to the father and he would not respond. Christmas and summer access unnecessarily became the subject of motions and lawyers’ letters because the father simply would not respond to the mother.

[187] In 2013 the mother sent the father multiple texts suggesting that the Christmas vacation be divided equally. The father did not respond. A motion was threatened just to divide the vacation. The father could not recall what happened. His dismissive response was that the mother brought many motions and he could not recall that one in particular.

[188] The mother suggested that the summer of 2014 be divided equally between the parties by way of alternate weeks. Again, the father did not respond and a motion was brought. The father claimed he did not remember this although the motion was clearly referred to in communication between counsel.

[189] Prior to Christmas 2014 the mother once again asked for a 50/50 split of time. She contacted the father multiple times by text to arrange this. He did not respond. The mother once again threatened to bring a motion. The father’s evidence was that he did not agree that a motion was required before an agreement could be reached. He was then shown an email from the mother’s counsel (Exhibit 44) dated December 4, 2014, but still would not agree despite explicit reference to a motion in the correspondence.

[190] In the spring of 2015 the mother contacted the father about a summer schedule. He did not respond. The mother had to involve her lawyer before a summer schedule could be agreed upon.

[191] In 2015 the mother once again attempted to arrange Christmas access directly with the father. An email dated December 18, 2015, from the mother to the father was produced. It outlined the attempts the mother had been making to arrange access in large part because she wanted to ensure the children could visit with their grandmother. According to the email, the father responded that he “couldn’t give a s… about your mom.” He did not deny receiving the email nor did he deny that he had not responded to it.

[192] By December 21, 2015, the father still had not responded concerning Christmas access and the mother asked Ms. Tamari for help. Ms. Tamari could not help as she was leaving on vacation. Another motion for Christmas access was threatened. The father once again responded that he did not recall that a motion was threatened because the mother brought so many motions. His response was that Christmas access was ultimately arranged so he could not understand what the problem was. He did not appear to be in the least concerned about the message that his lack of response sent to this court and to the mother.

[193] The mother’s summer vacation time in 2016 was extremely problematic, and as such, the court finds it relevant to discuss this incident again in the context of Christmas and summer vacation access. The mother was to provide notice of the two weeks she had chosen for summer vacation. Unfortunately it appears that the information was given verbally by the mother’s counsel to the father’s former counsel, who did not pass on the information. The father claimed he was given no notice of the August week and refused to deliver the children to the mother. The mother had rented a cottage and was waiting in a parking lot for hours while the lawyers went back and forth.

[194] It became clear during the father’s cross-examination that he had no other plans for the children that week and that he agreed it would be good for the children to spend a week with their mother but refused to give any leeway with respect to a possible miscommunication. While the children were ultimately dropped off, I find that the father’s insistence on controlling the situation was his main concern as opposed to the children spending quality time with their mother.

[195] In 2016 the mother was given an ultimatum and offered a total of five hours of access time over the Christmas holiday. As the father was in hospital after the tobogganing accident, the mother was left to deal with his sister A., who proved to be as uncooperative as the father if not more so. A.’s attitude was that she would cooperate if the mother “dropped” the criminal charges. The mother involved the CAS and her counsel. Ultimately she was offered two five-hour visits with various conditions attached.

The Father’s Criminal Charges

[196] The father was charged with sexually assaulting the mother on April 1, 2016. Fortunately, the matter was resolved by way of a peace bond during the course of this trial.

[197] The circumstances surrounding the laying of these charges are somewhat bizarre. Leading up to the charges, the mother occasionally invited the father to her home for a meal or to watch a movie with her and the children. This was intended to foster a sense of cooperation and good faith between the parents for the sake of the children.

[198] Unfortunately, it backfired. The father interpreted these invitations as a means to resume some form of closeness with the mother. He would slap her on the buttocks and make sexually charged remarks to her in front of the children. When she rebuffed him, the children were naturally upset.

[199] During the negotiations prior to the settlement on March 3, 2016, the mother insisted on a provision that prohibited any form of inappropriate touching. Within a short period of time (March 19, 2016) the father made more sexual advances to the mother. He called it “playful” interaction. The mother repeatedly requested that the father stop. Ms. Tamari had to intervene with a call to the father and then an email on March 28, 2016, asking him to stop. The father told the court that he found the call with Ms. Tamari both laughable and insulting. He simply refused to take the mother or Ms. Tamari’s complaints about his behaviour seriously.

[200] When he was charged, his anger towards the mother intensified beyond what it already was. He shared information with the children that the charges were the mother’s fault. The children were devastated and understandably upset about the possibility of their father going to jail. Thus began the most serious stage of the children’s dismissive and disrespectful attitude towards the mother. The father fueled this poor behaviour by continually complaining about the cost of having to hire a criminal lawyer, making inappropriate remarks about the mother being responsible for the criminal charges and refusing to cooperate with Ms. Tamari.

[201] A recorded conversation between the mother and O.S. from April 7, 2016 (shortly after the criminal charges were laid) was played in court. O.S. said the following to her mother: “I don’t have to do anything. Dad tells me what to do – not you. You don’t help me. I don’t want to live with you because you don’t help me with anything. You don’t support me in anything. I can choose what team I play for. I don’t give a shit about what Ilana [Tamari] says. You are not the only boss. There is Dad too.” O.S. then went on to accuse the mother of hitting L.S., a false allegation. I find that the mother was doing her best to support both children, but after the criminal charges were laid, the children became even more staunchly aligned with their father and rejected their mother’s authority.

The Recorded Conversations

[202] The mother recorded a number of conversations with herself and the children and some with both parents and the children present. A voir dire was held during the course of the trial and the recordings were ruled to be admissible.

[203] The father’s counsel repeatedly referred to these recordings as “illegal” in his written submissions. The legality of the recordings was thoroughly reviewed and considered by this court in the context of the ruling related to their admissibility. Any issues related to the legality of the recordings were usurped by this court’s interest in determining the best interests of O.S. and L.S. In the end, the recordings were important evidence with respect to what was actually going on in this family. They also provided insight into the mother’s allegations.

[204] The content of many of the recordings was shocking. Some excerpts are as follows:

(a) From the father (in front of the children):

• “Mom hasn’t paid a penny for the phones.”

• “The dog is more important to you (Mom) than the kids.”

• “I don’t want you in my house. What is abusive is you. I hope you burn everything in court. If you think I am going to walk away with nothing then so are you. Your mother wants to blow all your money for the future. The 20k she just spent on lawyers could have paid for yours and your sister’s university. She is a genius. I no longer give a flying shit what you want or what you think.”

• “Your Mom doesn’t care. She doesn’t care if I stay or if I leave.”

• “Don’t fucking call me or text me again K.L.H.”

(b) From O.S. to Mom:

• “I don’t care what Ilana says. You aren’t the only parent. You aren’t the boss. You aren’t doing good job.”

• “It isn’t your choice what team I play for, it’s Dad’s choice too. I don’t give a shit that Ilana said that children have a voice and not a choice, how dumb is that. Dad has a choice too. You don’t even know what an off side is.”

• “I have a choice. I don’t have to do anything or listen to you. If it is the law I will break it. I will go to jail if I have to.”

• “If Ilana makes me live with you, God will punish her. I don’t want to go anywhere with you (Mom had suggested a trip to Niagara Falls). Go yourself.”

• “You don’t make good decisions. You make bad ones. That is the truth.”

(c) From L.S. to Mom:

• When asked how he is doing by Mom, “What is good? The fact that I am not with you on my birthday.”

• “Your mom isn’t my biological grandmother. I want to go to Nona’s (Dad’s mom) not to your mom’s. I don’t give a shit about grandma. I want to leave. She isn’t your mother and she isn’t my grandmother. I don’t give a fuck about grandma. We aren’t even related.”

• When Mom responds by saying, “It is not fair that you are treating me this way,” L.S. retorts, “Fuck you. You are always fucking things up. You are pissing me off.”

• “I want to go home. Shut up, fuck you. Go fuck yourself. We’ll see who gets fucking custody. You are a fucking ass.”

• “You aren’t very nice because you didn’t change my school. Fuck, fuck, fuck. Change my fucking school.”

• “I trashed your house and I will do it again if you don’t change my school.”

• “Dad is the only one who cares.”

• “You think you are like God and you don’t give a shit about me. You raised me fucking shitty.”

• “You are a selfish fuck. What the fuck do you care.”

[205] What cannot be transcribed in the context of this judgment is the caustic, hateful, vitriolic tone used by the children and the father when addressing the mother. The impact of the recordings when played in court was nothing short of shocking to everyone present.

[206] As such, these recordings cannot be ignored in the analysis of what is best for the children. They demonstrate a clear parroting of the father’s disdain for the mother.

Analysis and Findings

[207] Based on the oral and documentary evidence provided at this trial I make the following findings.

[208] The father has failed to convince this court that he has made his children’s best interests a priority. Rather, he has undermined the mother’s authority and diminished her as a parent and as a person in the eyes of the children by engaging in the following behavior:

(a) Failing to insulate the children from his anger about financial disputes with the mother.

(b) Discussing court proceedings with them.

(c) Engaging in unacceptable behaviour with the mother in front of the children thereby sending the message that verbal abuse of the mother is permitted.

(d) Demeaning the mother in front of the children.

(e) Failing to live up to his multiple promises to modify his behavior.

(f) Empowering the children to make decisions about their sports activities, schools and access to the mother to the point that he refuses to interfere with whatever they want.

(g) Failing to honour his commitment to joint parenting by unilaterally registering the children for sports and failing to consider the mother’s views on alternatives.

(h) Treating the children’s time with the mother as unimportant, as evidenced by his lack of response to proposals for Christmas and summer access as well as his lack of response for increased access after January 2017.

(i) Disparaging the mother’s family in front of the children thereby implicitly permitting their change in attitude towards their maternal grandmother, uncle and cousins.

(j) Refusing to communicate with the mother thereby sending the message that such communication is unimportant and implicitly allowing the children to block the mother’s calls or fail to respond to her texts.

(k) Telling the children that the mother cares more about her students or dog than them and exaggerating her work commitments.

(l) Failing to share information with the mother about the children’s activities and then when she does not attend, using this as another example to the children that she does not care about them.

(m) Failing to adhere to the agreed upon access schedule that was to commence in September 2016 (the father blamed this on the children “not wanting to go,” and thus began the children’s reign over access because the father failed to convey any positive message about time with the mother).

(n) Persisting in his subtle and not so subtle message to the children that their mother does not deserve their love or respect because he despises her

[209] The result of the father’s behaviour has been a slow and steady undermining of the mother’s authority to the point where the children mock her and demean her, similar to how the father treats her.

[210] When in her full-time care over the summer (as per my interim order), the transformation of the children was almost immediate and, frankly, not unexpected. As per the mother’s affidavit sworn August 21, 2017, it took only two days for things to become “normal” again between her and the children. The mother was challenged on this in cross-examination. It was suggested to her that if it only took two days for the children to be normalized then the alienation must have been minimal or non-existent. Her response made sense. She testified that the alienation had not evaporated – the children still said and did things that made this clear – but that overall they had a wonderful summer.

[211] She spoke of the children reconnecting to her, relaxing and asking her to participate in things with them. She talked about returning to doing the types of things that she used to do with them such as biking and running. They celebrated their maternal grandmother’s birthday with their uncle and cousins at their home without incident. This is to be contrasted with the children’s shocking rejection of their maternal grandmother while in the care of the father.

[212] I accept the mother’s evidence that L.S. opened up to his mother, let down his guard and did not scream at her or call her names. He was easygoing and approachable. I accept her evidence that “I really feel like I finally have my son back.” This is a stark contrast to the disrespectful and offensive manner in which L.S. spoke to his mother in the voice recordings.

[213] O.S. also changed when in her mother’s full-time care. She was respectful to her mother. She did not swear or yell at her as she did during recorded conversations. Their former close relationship resumed. There were no incidents or anything that required police or CAS involvement.

[214] The only time that issues arose was immediately after the children would call their father. For a short time after those calls, the children would return to being rude to their mother or to belittling her family. However, that behaviour would disappear quickly and the children would resume a normal relationship with their mother.

[215] I find that throughout the summer the mother facilitated phone contact between the children and their father. The mother initially offered to have her mother supervise access but the father refused the offer stating that he thought M.H. would be biased against him. He insisted that he would only use a third party independent supervisor. The mother then tried to arrange this (as evidenced through her OFW emails) but the father would not pay the cost. Towards the end of July 2017, the father suddenly agreed to use M.H. as the supervisor and demanded immediate access with her as the supervisor.

[216] By that time M.H. was no longer willing to supervise given the time commitment and the requirement to come to court. Her health would not tolerate it. The father blamed all of this on the mother and his lawyer went so far as to accuse the mother of being in contempt of my interim order. I find that the father’s lack of access throughout the summer was an unfortunate circumstance but entirely of his own making. Any accusation that the mother was in contempt of my order is an ill-founded one.

[217] Further, I find that the father’s lack of communication with the mother during the summer was a good example of why the mother is the parent best able to facilitate a relationship with the non-custodial parent and the children. It is clear from the emails filed as exhibits to her August 21, 2017, affidavit that she made continued attempts to communicate with the father by OFW. It is also clear that between approximately June 30, 2017 and August 14, 2017, the father simply did not respond to any emails from the mother. I do not accept his explanation that the mother sent repetitive emails that he did not need to respond to. The only reason the mother sent repetitive emails is that the father never responded to her. This is a concerning repetition of the same type of behavior that the father exhibited post separation (i.e. changing his phone number without telling the mother, refusing to respond to simple requests about summer and Christmas access, and failing to respond to straightforward texts from the mother about the children).

[218] In all, the parties’ affidavits relating to what happened during the summer of 2017 and the mother’s evidence given on August 30, 2017 (the mother’s counsel chose not to cross-examine the father) only solidify this court’s view that it is not in the children’s best interest to return them to their father’s care until the recommended therapy has taken place. In summary, the father has not changed. He continues with the same undermining behavior, although perhaps it is less blatant given that the children were not living with him.

[219] Despite the father’s tardiness in providing the required retainer to proceed with therapy, the clinician, Ms. Popielarczyk, was able to provide Interim Therapeutic Recommendations by way of a summary dated August 29, 2017. These recommendations are both comprehensive and helpful to the court. The recommendations were based on two meetings with each parent, interviews with the children and a review of the intake forms, questionnaires, court endorsements, legal correspondence and Ms. Tamari’s s. 30 assessment as well as a call with Ms. Tamari.

[220] Intensive therapy has been recommended for the father with a focus on “parent-child contact problems (including alienation), cognitive distortions, perceptual errors, selective attention….and developing a corrective co-parenting narrative regarding the end of the relationship with the mother….” While therapy is also proposed for the mother, it is of a much more generic nature with a focus on co-parenting.

[221] The ultimate goal of therapy is to achieve cooperative co-parenting including a written agreement that both parties would abide by court ordered access. In this court’s view, this type of therapy is long overdue for this family. Ms. Popielarczyk has, in a very short amount of time, been able to identify the salient issues related to this family’s dysfunction and recommend a plan that involves all parties including the children and even extended family.

[222] It is essential that participation in the recommended therapy continue in order to ensure that the children can benefit from what each of their parents has to offer.

[223] At the conclusion of the hearing on August 30, 2017, this court made a further interim order. That order essentially continued the June 12, 2017, order until the release of this judgment with a few changes. Those changes included specifying how O.S. was to be transported to school and that access to the father was suspended pending completion of Phase 1 of the counseling that Ms. Popielarczyk has recommended.

The Law

[224] Section 20(1) of the Children’s Law Reform Act (“CLRA”) provides: “Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.”

Under subsection 24(2) of the CLRA, in determining what is in the best interests of a child, the court, shall consider all the child’s needs and circumstances, including:

(2)(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 care and upbringing of the child;

(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) any plans proposed 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.

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

[225] The following are some of the factors which are relevant to determining the best interests of a child in this case:

• the physical well-being of the children;

• the emotional well-being and security of the children;

• the plans for the education and care of the children;

• the sensitivity of the parents to their role as parents and, in particular, their understanding and appreciation of the needs of the children – this includes the need of the children to continue their relationship with the other parent;

• the willingness of the parent to promote the relationship of the children with the other parent;

• the psychological needs of the children.

[226] The courts have traditionally given weight to the parenting arrangements in place at the time of the court’s determination of the issue, be it at the interim stage or the final stage. Generally, courts are reluctant to change existing childcare arrangements that are working to a child’s benefit. See N. (M.) v. B. (M.) (2000), 2000 CanLII 22543 (ON SC), 9 R.F.L. (5th) 359 (Ont. Sup. Ct. J.).

[227] I do not find that the previous status quo was working to the children’s benefit. That is, allowing their father’s view of the mother to colour how and when they saw her and how they treated her is not an arrangement that benefits them.

[228] While I do not find that the father was actively alienating the children from their mother or even consciously doing so at times, the result of his behaviour was that the children engaged in campaign of denigration of the mother that had no justification.

[229] Parental Alienation Syndrome (“PAS”) was identified as a term in 1985 by the late American psychiatrist Richard Gardner.[^1] He identified eight behavioural symptoms seen in children when PAS is present:[^2]

(a) A campaign of denigration of the rejected parent.

(b) Weak, frivolous or absurd rationalizations for the rejection.

(c) Lack of ambivalence towards both parents; one is idealized without recognition of any negatives, while the other is devalued without acknowledgment of any positives.

(d) The “independent thinker” phenomenon (child claims thoughts and beliefs are their own, not those of the alienating parent).

(e) Reflexive support of the alienating parent in all of the parental conflict.

(f) Absence of guilt over cruelty to, or exploitation of, the reject parent.

(g) Presence of borrowed scenarios (use of the alienating parent’s words and ideas).

(h) Spread of rejection to extended family and friends of the alienating parent.

[230] While not all of these symptoms are present in this case, a few glaring examples make it clear that the father’s continual undermining of the mother has resulted in a form of alienation. Some examples are as follows:

(a) The children’s rejection of their maternal grandmother, uncles and cousins, to the point of refusing to socialize with them and leaving their grandmother’s birthday party without notice.

(b) O.S.’s inability to identify anything positive about her relationship with her mother when asked by the CAS.

(c) Both children identifying their family as being themselves, the father and their dog when asked to draw a portrait of their family.

(d) L.S. telling his mother that the school she chose for him was not “ranked” as highly as E[…], a clear parroting of the father’s view.

(e) The children’s shocking treatment of their mother – swearing, destroying her property, etc. without any apparent remorse.

(f) The children’s clear involvement with the litigation (i.e. L.S. saying things like, “let’s see who gets custody…”).

(g) The children siding with their father in all things and parroting his words as can be clearly heard in the audio recordings.

(h) The children being allowed to determine when and if they saw their mother while the father feigned an inability to “force” the children to do anything.

(i) The almost immediate transformation of the mother/child relationship to a “normal” one once the father’s influence was minimized.

[231] The father submits he should continue as primary caregiver for the children. I do not agree. While he clearly loves the children, he refuses to properly acknowledge the children’s need to have a relationship with their mother. He cannot rely on a status quo, as the arrangement in place since September 2016, was never one agreed to by the mother. As I have previously found, the father allowing the children to have control over access created a false status quo that was not working to their benefit.

[232] Of the two parents, I find that the mother is the parent who would best promote the children’s relationship with the other parent. Leaving the children with the father as the sole custodial parent would only exacerbate their negativity towards the mother.

[233] Further, this litigation is not over. The financial issues, including the father’s much-contested claims for a trust interest in the F[…] property, are far from being resolved. I have already found that the father has inappropriately involved the children in the litigation process. I find this to be alienating conduct as it implicitly forces the children to support the father’s position against the mother. As the litigation will continue after this judgment is issued, and since the father failed to heed warnings from the CAS, the OCL and Ms. Tamari not to involve the children in the litigation, there is a real concern that this type of alienating conduct would continue if the children were returned to their father.

[234] The mother asks for sole custody with no access. Not surprisingly, she is concerned that any access at all will only invite the father’s continued undermining of her.

[235] I agree that sole custody is warranted in this case. As itemized above, the father has failed to consider his children’s best interests. His complaints about the mother were unsubstantiated and undocumented. The CAS, the OCL and Ms. Tamari not only verified the mother’s complaints about the father, but the father himself admitted to much of the impugned behaviour.

[236] The recordings of the children’s vitriolic behaviour towards the mother were both shocking and disturbing. Further, the transformation of the children’s relationship with their mother from a loving one to one in which the mother was barely tolerated and aggressively verbally abused was not conjured out of thin air. Rather, I find it was learned behaviour emanating directly from the father’s own anger and resentment.

[237] This court’s fear is that the status quo would result, over time, in a complete and utter disassociation of the mother and children as the children continued in their “parental” role of deciding the terms on which they would agree to see their mother. With the father’s negative influence ever present, the concern is that it would simply be easier for the children to forgo their relationship with their mother rather than risking their father’s anger or disapproval.

Miscellaneous Issue

[238] At the conclusion of the August 30, 2017, hearing, the father’s counsel raised a new issue. He claimed that the mother’s affidavit sworn June 9, 2015, in another proceeding, directly contradicted affidavits she has sworn in this proceeding on September 3 and 15, 2015. He alleged that in her June 9, 2015, affidavit she conceded that the father had worked on and built the F[…] property over eight years. The father’s counsel claims that she denied this in the family court affidavits (in the context of defending the father’s constructive trust claim against F[…]). Counsel’s position was that the mother’s credibility in this matter was seriously affected by this contradiction and that her counsel was implicated as well given that he represented her in both proceedings.

[239] I have reviewed the impugned affidavit material and can find nothing to support this allegation. The mother never denied that the father worked on F[…]. It is the nature of the work and whether or not he was compensated that is in issue.

[240] I do not find that the affidavits affect the mother’s credibility and I further find that any allegation against the mother’s counsel is unfounded.

Final Orders

[241] Given all of the above, I make the following orders:

(a) The Respondent shall have sole custody of the children, L.S., born […], 2003, and O.S., born […], 2005, and they shall reside primarily with her.

(b) The parties shall continue with the intensive therapy/counseling with Families Moving Forward and share the cost equally.

(c) The Applicant’s access as per my June 12, 2017, order shall be suspended pending completion of the recommended therapy in Phase 1 of the Interim Therapeutic Recommendations of Ms. L. Popielarczyk, M.S.W. dated August 29, 2017. Once the Applicant has completed Phase 1, supervised access of two hours a week shall commence. During the course of therapy, the Applicant shall research and provide to Ms. Popielarczyk and the Respondent a list of names of proposed access supervisors.

(d) Once Phase 3 of the Interim Therapeutic Recommendations has been completed, access shall continue at two hours per week unsupervised.

(e) After the Applicant has had two months of weekly unsupervised access, the parties shall meet with Ms. Popielarczyk and/or their counsel to determine an expanded access plan.

(f) The Respondent shall be entitled to make all decisions regarding the children’s schools (except that L.S. shall continue to attend N[…] Secondary in Grade 9 and O.S. shall continue to attend W[…] Public School in Grade 7) and sports activities, and shall pay for all such activities until such time as the parties agree otherwise or the financial issues regarding support and s. 7 expenses are resolved.

(g) The Respondent or her designate shall transport to and from school O.S. during her Grade 7 year. L.S. may use public transit to attend school. The Respondent shall be responsible for all costs relating to the children’s transportation to school subject to any future orders made with respect to child support or s. 7 expenses.

(h) The Applicant may attend any of the children’s sport activities but only after he has completed Phase I of the Interim Therapeutic Recommendations. In the event that the Applicant is required to have supervised access as per the terms of this judgment, the Applicant must attend activities in the presence of his supervisor. The Applicant may attend only as an observer. He is not to participate as a coach or in any other capacity with respect to the children’s activities.

(i) If not already done, the coaches for the children’s activities shall be informed by the Respondent that, for now, the Applicant is not involved in the decision making with respect to the children’s activities but that he may attend any game or practice subject to the terms of this order.

(j) The Applicant shall have telephone access to the children twice a week for ten minutes. These calls are to be initiated by the children and facilitated by the Respondent. The Applicant is to adhere to the 10 minute time limit without exception.

(k) If not already done, the Applicant shall deliver to the Respondent’s counsel the children’s original health cards, birth certificates and passports and they shall remain in the control of the Respondent until further agreement or court order.

(l) The Respondent shall provide to the Applicant via Our Family Wizard a complete schedule of all games, practices, try-outs and tournaments in relation to the children’s activities.

(m) The parties shall communicate regarding child-related issues by Our Family Wizard. Texting is not to be used except in an emergency.

(n) The mother shall continue to pay for and own the children’s phones.

(o) The Respondent’s counsel shall send a copy of this judgment to Ms. Popielarczyk.

(p) Any contact between the Applicant and the children pursuant to this judgment, including any pick-up or drop-off arrangement, shall be an exception to the terms of the Applicant’s peace bond.

(q) All terms of the temporary orders dated June 12, 2017, and August 30, 2017, remain in full force and effect except as indicated in this judgment.

Costs

[242] The parties shall provide written submissions on costs on a seven day turnaround starting with the Respondent, with her submissions due seven days from the date of release of this judgment. Costs submissions shall be no more than five pages in length exclusive of any Offer to Settle or Bill of Costs. Costs submissions shall be emailed directly to my assistant at therese.navrotski@ontario.ca. If no costs submissions are received within 35 days of the release of this judgment, costs will be deemed to have been settled.

Gilmore J.

Released: September 21, 2017

CITATION: A.S. v K.L.H., 2017 ONSC 5624

COURT FILE NO.: FS-14-19405

DATE: 2017-09-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.S. Applicant

– and –

K.L.H. Respondent

REASONS FOR JUDGMENT

Gilmore J.

Released: September 21, 2017

[^1]: Richard Gardner, “Recent Trends in Divorce and Custody Litigation” (1985) 29 Academy Forum 3. [^2]: Richard Gardner, “Parental Alienation Syndrome (PAS): Sixteen Years Later” (2001) 45 Academy Forum 10.