Court File and Parties

CITATION: Mattina v. Mattina, 2017 ONSC 5704

COURT FILE NO.: D991/13

DATE: 2017-09-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Vincenzo Mattina, Applicant

-and-

Raffaella Mattina, Respondent

BEFORE: The Honourable Mr. Justice R. J. Mazza

COUNSEL: M. McCarthy, Counsel for the Applicant

G. Nardi-Bell, S. Garcea, Counsel for the Respondent

R. Murdoch, Counsel for the Respondent, on behalf of the children

HEARD: August 22, 2017

ENDORSEMENT

Introduction

[1] I have before me three motions on the issue of custody and access.

[2] Ms. McCarthy, on behalf of the Applicant, has brought a motion for summary judgment for custody to the Applicant, Mr. Mattina, of all three children, and a no-contact order with the Respondent mother, Ms. Mattina, for a 90-day period while the children participate in a program known as Family Bridges.

[3] In the alternative, Ms. McCarthy seeks direction from the court by way of a directed trial in which the court would decide how much evidence was necessary to resolve the issues.

[4] Ms. Nardi-Bell, on behalf of the Respondent, also seeks summary judgment, namely, custody to the Respondent and access to the Applicant at the discretion of the children.

[5] Mr. Murdoch has brought a motion requesting that the children be represented and that the court accept into evidence the affidavits prepared by S and N.

Background

[6] The parties were married in 1998 and separated in 2013. There are three children: S is 17 years of age born on October 4, 1999, N is 16 years of age born on July 2, 2001, and A is 10 years of age born on April 8, 2007. Since separation, the children have been residing with the mother, Ms. Mattina.

[7] It is undisputed that the father, Mr. Mattina, has not had meaningful contact with the children since separation four years ago. He has been able to attend the children’s extracurricular events, but mainly as an observer since the children refuse to interact with him.

[8] The parties have participated in a Section 30 Assessment conducted by Michelle Hayes. The original assessment, which is located at Volume 5, Tab B, was completed in July 2014; an updated assessment dated May 2015 is located at Volume 5, Tab D.

[9] In addition to Ms. Hayes, the family also met with Lourdes Geraldo on April 9, 2014, and on two other occasions subsequent to that date.

[10] In her July 2014 assessment, Ms. Hayes recommended a reunification weekend, which was subsequently ordered by McLaren J. on September 26, 2014. However on the recommendation of Ms. Geraldo for reasons I will discuss later in this decision, the reunification weekend did not take place.

Submissions by Ms. McCarthy

[11] Ms. McCarthy makes four factual propositions. Ms. McCarthy’s first proposition is that this is a case of a severe parent-child contact problem. She submits that Mr. Mattina has not seen his sons for over four years, other than at the boys’ extracurricular activities. However, the boys do not acknowledge Mr. Mattina’s presence other than to tell him they do not want him there.

[12] The second proposition is that it is in the best interests of the children to rebuild their relationship with their father. In support of that proposition, Ms. McCarthy submits that Ms. Mattina admitted this in her discussions with Ms. Hayes in preparation for the Section 30 Assessment and in her most recent affidavit sworn on June 21, 2017, wherein she took the position that “the Applicant should rebuild his relationship with his children.” Moreover, Ms. Mattina’s own summary judgment motion is indicative of her agreement that the children should have a relationship with their father. Ms. McCarthy points out that Ms. Mattina had the opportunity to withdraw her concession on this point, but did not.

[13] The third proposition is that there are serious long-term problems resulting from lack of contact with a parent. In support of that proposition, Ms. McCarthy quotes two cases. The first, S.D.G. v. D.K.N., 2017 BCPC 61, is a custody, access and support case involving a short relationship and a father who wanted equal parenting time. In that case, Dyer J. summarized why it is important to have fathers in children’s lives.

[14] In the second case, C.W. v. C.E., 2010 ONSC 3575, 93 R.F.L. (6th) 279, in which MacPherson J. set out a checklist of common behaviours of alienated children based on the work of Dr. Barbara Fidler and Nicholas Bala.

[15] The fourth proposition is that the sole issue before the court is what form the access order should take. Ms. McCarthy submits that the evidence to determine access is already before the court and there are two choices:

1. Aggressive intervention involving a temporary change in custody; or

2. Access at the children’s discretion, which is, essentially, no access.

[16] Ms. McCarthy also submits that the recommended program, entitled Family Bridges, is in keeping with Ms. Hayes’ recommendation of a more intrusive intervention. Ms. McCarthy submits that Family Bridges was suggested as a result of a phone call. The contents of the phone call are not known to the court, but Ms. McCarthy submits the contents of the call would be disclosed if the court decided to adjourn the summary judgment motion and hear from Ms. Hayes.

[17] Ms. McCarthy offers five reasons why the aggressive intervention approach is preferred in cases of parent-child contact problems. She summarizes the first reason as follows:

Almost every case is hybrid, where both parents contributed to the problems. In that regard, according to Dr. Fidler, the seeds of parent-contact problems are sown in problematic parenting during the marriage or in long-term problematic relationships. If every case is hybrid, all cases are forward-looking. Children have to be taught that there are different perspectives, and blame is irrelevant.

[18] In the case of Mustapic v. Capin, 2012 ONSC 3208, the expert witness, Dr. Chamberlain, testified that attempts to determine how parties got to that place is a futile exercise.

[19] Relying on the case of Bertram v. Bertram, [1994] O.J. No. 1792 (C.J.), a case regarding whether the daughter withdrew from the mother’s care because of free choice or because of influence, Ms. McCarthy submits that assigning fault is futile.

[20] Ms. McCarthy therefore submits that if this court were to order a trial, a good proportion of the evidence and submissions would consist of the parties blaming each other, which, in her opinion, is pointless.

[21] Ms. McCarthy’s second reason is that there is clear evidence that 90-day blackout periods work. In support of this argument, Ms. McCarthy refers to the case of X. v. Y., 2016 ONSC 545, and specifically Trimble J.’s reasons on costs, 2016 ONSC 4333, where he refers to the child’s extraordinary turnaround during the Family Bridges intervention.

[22] In continuing with her reference to the case of X. v. Y., Ms. McCarthy submits that the third reason is that Family Bridges has a significant aftercare component. In that case, Trimble J., after ordering implementation of that program, provided judicial monitoring over a period of time.

[23] To elaborate, Ms. McCarthy submits that Family Bridges is more like an interim remedy with ongoing judicial oversight. In the case of X. v. Y., Trimble J., by his fourth decision, permitted the mother to re-establish contact with her child, A.

[24] Turning to her fourth reason, Ms. McCarthy submits that private and public resources should not be spent on trial, but instead are better spent on judicial oversight, which, in the case before me, would mean that contact would be only pursuant to a court order.

[25] Ms. McCarthy further submits that considering the scope of Ms. Hayes’ assessment, all witnesses have been heard from. Ms. Hayes has met with all family members. Ms. McCarthy reminds the court that a Section 30 Assessment is based on experts who have shared their expertise with the court, and which includes interviews of all collateral sources.

[26] Ms. McCarthy further reminds the court that every Section 30 Assessment must, out of necessity, include hearsay.

[27] Ms. McCarthy’s fifth reason is that the parties have run out of options to re-establish contact between Mr. Mattina and the children. Although there have been three opportunities for reintegration therapy, Ms. Mattina has not been able to convince the children to attend.

[28] In Ms. McCarthy’s submission, Ms. Mattina has refused to consent to intervention or has caused delay, even though McLaren J., relying on Ms. Hayes’ assessment, ordered a weekend of therapeutic intervention in her decision of September 2014. As well, by not complying with McLaren J.’s order, Ms. McCarthy says the children have been inappropriately empowered.

[29] According to Ms. McCarthy, the only option now is Family Bridges. The court has evidence of what the Family Bridges model is, and that program is available to the Mattina family.

[30] Ms. McCarthy further submits that the courts have recognized Family Bridges, and according to Dr. Fidler, access should not be at the discretion of alienated children. In S.G.B. v. S.J.L., 2010 ONSC 3717, 102 O.R. (3d) 197, the court recognized that doing nothing in cases of contact problems would be a tragedy for all concerned.

[31] In order to minimize costs and in view of the fact that the Family Bridges proposal was the result of a phone call between Ms. McCarthy and Ms. Hayes, Ms. McCarthy submits that the court could adjourn the summary judgment motion to hear further from Ms. Hayes and Dr. Fidler. After this evidence, the court could make a determination of whether to require more evidence or grant summary judgment.

[32] Regarding the video taken by Mr. Mattina just shortly before separation, Ms. McCarthy agrees that its admissibility at trial should not be determined at this point. In any event, Ms. McCarthy submits that it is consistent with Hyrniak v. Mauldin for the court to receive the video on the motion for summary judgment. Furthermore, Ms. McCarthy submits that it is highly probative in that it indicates an intention to alienate even before separation.

Submissions by Ms. Nardi-Bell

[33] Ms. Nardi-Bell begins by summarizing Mr. Mattina’s position, namely, that Ms. Mattina has alienated the children against Mr. Mattina, Family Bridges should intervene, and participation in that program should be immediately proceeded by custody of the children to Mr. Mattina with no access to Ms. Mattina for a three-month period.

[34] Ms. Nardi-Bell submits that Family Bridges should not be ordered because this is not a case of parental alienation, but rather a case of “justified estrangement.”

[35] In review of Ms. Hayes’ assessment, Ms. Nardi-Bell submits that Ms. Hayes did not have access to the children’s clinical notes and records and, therefore, made recommendations without knowing what the children had told the counsellor.

[36] Ms. Nardi-Bell submits that the children are traumatized because they have been exposed to extreme violence, and although Mr. Mattina admitted violence to various counsellors, he has adamantly denied it in the court record.

[37] In any event, Ms. Nardi-Bell submits that Ms. Hayes’ report is based on Mr. Mattina’s admission of inappropriate discipline and behaviour. The report sets out as an example, Mr. Mattina’s decision to remove items from the matrimonial home after separation, some of which belonged to the children.

[38] In further reference to Ms. Hayes’ report, Ms. Nardi-Bell submits that Ms. Hayes has recognized Ms. Mattina as an effective parent, while at the same time concluding, at page 77, that “there is no independent evidence to support that Mr. Mattina has developed appropriate parenting skills to manage any negative behaviours from the children that may require discipline.”

[39] Ms. Nardi-Bell goes on to quote from Ms. Hayes’ report, at page 72: “There was significant evidence from collateral contacts that Mr. Mattina engaged in inappropriate discipline of his children, and this is supported by the children and Mr. Mattina’s own admissions.”

[40] Referring to the relationship between Ms. Mattina and the children, Ms. Nardi-Bell quotes from page 77 of Ms. Hayes’ first assessment: “Ms. Mattina has shown that she is able to appropriately facilitate support of service for the children on an academic, medical, and counselling front.”

[41] Although Mr. Mattina attended a men’s anti-violence program, Ms. Nardi-Bell reminds the court that the facilitator, Ms. Murphy, would have “liked Mr. Mattina to acknowledge that his own children’s refusal to see him could have been related to his actions towards Ms. Mattina and not nearly [sic] as a result of the mother alienating the children against him.”

[42] Ms. Nardi-Bell then moved on to the therapeutic weekend recommended by Ms. Hayes, which did not occur for reasons set out in Ms. Geraldo’s report located at Tab 4, Volume 1, Exhibit J, in which she indicated that “the weekend intervention, as ordered by Justice McLaren, was not likely to take place or have a successful outcome due to a number of factors: The level of resistance expressed by the children was high; they expressed defiance, upset, anxiety and fear at proceeding.”

[43] Ms. Nardi-Bell also quoted Ms. Geraldo’s observation concerning Mr. Mattina that Ms. Geraldo wondered whether Mr. Mattina`s counselling “was assisting him to focus on the behaviour that he needed to change in order to communicate with the boys that they can anticipate a different dynamic with him from their past worries about his behaviour.”

[44] Further on in the report, Ms. Geraldo made reference to Karen Timmerman, the children’s therapist. Ms. Geraldo summarized her consultation with Ms. Timmerman as follows:

…upon meeting the children individually on one occasion in a joint session with their mother, [Ms. Timmerman] did not recommend the therapeutic intervention proceeding the coming weekend. She expressed concern about the impact of historical trauma on the children. Ms. Timmerman stated that it may be too early for this intervention to take place; she viewed this is detrimental to their mental health at this juncture.

[45] In turning to Dr. Fidler’s report, Ms. Nardi-Bell submits that although Dr. Fidler may have recommended Family Bridges, she also confirmed that she could not make recommendations for this particular family because she had not interviewed all of the parties.

[46] Ms. Nardi-Bell submits that in her discussions of “justified rejection,” Dr. Fidler stated, at page 13, that the “severity of the reasons for the contact problems will inform the most appropriate intervention, which may or may not include attempts to reintegrate the child with the rejected parent.”

[47] Ms. Nardi-Bell further quotes from page 13 of Dr. Fidler’s report, “Efforts by the favoured parent to protect the child though may look like alienating parental behaviour when these are not.”

[48] Moreover, Ms. Nardi-Bell submits that both Dr. Fidler and Dr. Siegi Schuler agreed that in cases of “substantiated severe justified reaction,” trauma must be dealt with before attempting reintegration.

[49] Ms. Nardi-Bell further submits that the children need to be heard. In Ms. Hayes’ report, she reminded the court that a representative of the Catholic Children’s Aid Society (“CCAS”) suggested the children may, in fact, need a lawyer because they may need to feel that they have a voice, not that they are being forced into a relationship with their father.

[50] Moreover, Ms. Nardi-Bell submits that even Dr. Fidler agreed, at page 33 of her report, that “it is imperative for a child or adolescent to feel heard and for their feelings to be validated.”

[51] It would be inappropriate, Ms. Nardi-Bell submits, to force the children into therapy. She reminded the court that Ms. Hayes had recommended that the family work with someone able to assess trauma, and Dr. Schuler was one of Ms. Hayes’ recommended professionals.

[52] Dr. Schuler himself indicated that to force the children into therapy against their wishes would be unethical.

[53] Dr. Fidler suggested that exposing children to professionals may be abuse in itself.

[54] Ms. Nardi-Bell submits that the children do not wish to speak with any more counsellors. Moreover, they have shown a strong resistance to participation in the therapeutic weekend.

[55] In considering whether or not the Family Bridges program is appropriate, Ms. Nardi-Bell reminds the court of Dr. Fidler’s comment, at page 30 of her report, that “interruption in contact with the favoured parent… is likely to be necessary to correct the alienation” (emphasis added), not justified estrangement.

[56] In the case of X. v. Y., Ms. Nardi-Bell reminds the court that there was an 11-day trial before there was a finding of parental alienation. In contrast, Ms. Nardi-Bell submits that in the case before me, there is no evidence of alienation, but there is evidence that the father abused the children and continues to behave inappropriately.

[57] Ms. Nardi-Bell concludes that the court’s only consideration is the best interests of the children. To force the children into therapy is not in their best interests, nor is it in the children’s best interests to change custody and deny the mother access.

[58] Ms. Nardi-Bell submits that the key evidence before the court is the Section 30 Assessment, Ms. Geraldo’s report and Dr. Schuler’s letter. Ms. Nardi-Bell suggests that what may mend the relationship between Mr. Mattina and the children is if Mr. Mattina is willing to work on his issues, and recognize and apologize for his inappropriate behaviour. With respect to Ms. Mattina, she has, in fact, done everything she possibly could to preserve the relationship between the father and the children.

Reply Submissions by Ms. McCarthy

[59] In reply, Ms. McCarthy begins by submitting that Dr. Schuler’s opinion is summarized in a letter which is not a report. Moreover, although he is a Registered Social Worker, he is not a court-appointed expert.

[60] Ms. McCarthy further submits that Ms. Nardi-Bell’s submission that Mr. Mattina denied violence was inaccurate. He admitted physical discipline issues to both marriage counsellors and Ms. Hayes. Ms. McCarthy quotes from page 72 of Ms. Hayes’ report that “there was significant evidence from the collateral contacts that Mr. Mattina engaged in inappropriate discipline of his children, and this is also supported by the children and Mr. Mattina’s own admission.”

[61] Ms. McCarthy also submits that the court should consider the fact that Ms. Mattina wanted to involve the children in criminal proceedings against Mr. Mattina, despite the direction to the contrary.

[62] She submits that Ms. Hayes noted that “all of the various decisions [of the parents] have led to irrevocable breach of trust between the parents, and ultimately resulted in this present situation… It is for these reasons that there’s a recommendation for therapeutic reconciliation between the children and their father.”

[63] She further submits there was no suggestion that the change of custody be permanent; the purpose of the Family Bridges program is for interim intervention.

[64] Ms. McCarthy also makes reference to Dr. Taynen’s notes, wherein Dr. Taynen indicated that first, the father showed significant ownership of the discipline issue and was trying to change. Secondly, he felt that Mr. Mattina walked into a trap as being seen as an abuser. Dr. Taynen writes, “Though he would occasionally smack the children, and agreed not to, he was not a beater, and I am mindful of how very frustrating Ms. Mattina could be in her sometimes obstinate inability to understand issues that he often patiently, and sometimes impatiently, tried to explain.”

[65] Ms. McCarthy makes further reference to Ms. Hayes’ report, describing difficulties encountered by Ms. Mattina. According to Ms. Hayes, since separation, Ms. Mattina struggled with appropriately managing her emotions in front of the children. She exposed the children to adult-specific information and wanted them to testify in criminal proceedings despite the police’s recommendation to the contrary.

[66] She goes on to say that although Ms. Hayes found inappropriate parental discipline, she did not label Mr. Mattina as an abuser, and did not suggest he receive “capital punishment under the family law and that his access be terminated.”

[67] On the contrary, despite having all the information, including the marriage counselling notes, Ms. Hayes recommended therapeutic intervention, and did not conclude that Mr. Mattina is not the individual “who gets no access”.

[68] Ms. McCarthy also describes the children as being too empowered, as demonstrated by their decision to breach McLaren J.’s court order of therapeutic intervention.

[69] In pointing out to the court the concern for the empowerment of the children, she quotes the following from page 35 of Ms. Hayes’ report:

The main concern from the past was the inappropriate physical discipline used by Mr. Mattina towards the children, as well as the domestic violent relationship between Mr. Mattina and Ms. Mattina. The children and the mother have decided this as the main reason for the termination of the relationship between the children and their father. The difficulty with this theory is, this behaviour also occurred during the marriage, and the children maintained their relationship with both parents and remained connected with their father throughout that time. It can reasonably be assumed that if Mr. Mattina and Ms. Mattina were still married, the children would continue to have some type of relationship with their father and would not have likely had the benefit of any type of therapeutic intervention.

[70] Further on, she quotes again from Ms. Hayes’ second assessment that since the interview in the Spring of 2014, the children’s fear of the father has continued to grow, and that they “do not want a relationship and they reject the idea that their mother would support the reconciliation. Additionally the children have displayed extraordinary defiant behaviour in the past when they were required to attend counselling with the various service providers.”

[71] Lastly, Ms. McCarthy submits that Ms. Mattina had an obligation to put her best foot forward in her evidence and she does not deny the chronology as set out in Mr. Mattina’s affidavit of June 13th, 2017.

[72] Ms. Mattina has not shown a genuine issue for trial, and has failed to completely respond to the narrative presented by Mr. Mattina.

[73] Ms. McCarthy also provided the court with law on summary judgment, which is set out in accurate detail in her factum under the heading “Law and Argument,” which I have reviewed.

Analysis and Conclusion

[74] Rule 16 of the Family Law Rules, O. Reg. 114/99, govern summary judgment motions in any case “including a child protection case that does not include a divorce claim.”

[75] The test for summary judgment is whether there is a genuine issue for trial. No genuine issue for trial results where there is no realistic possibility of an outcome other than the relief sought by the moving party.

[76] A respondent to a summary judgment motion will succeed in demonstrating that a genuine issue for trial exists by adducing evidence that tends to show a different state of facts from those relied on by the applicant, or by showing that there is no evidence on a material fact: R.A. v. Jewish Family & Child Service, [2001] O.J. No. 47 (S.C.).

[77] Mere denials or claims that the evidence of the moving party would not withstand cross-examination at trial will not be sufficient: Children’s Aid Society of Toronto v. K.T., 2000 CanLII 20578 (ON CJ), [2000] O.J. 4736 (C.J.).

[78] The court has a duty to take a “good hard look” at the evidence to determine whether there are sufficient facts to determine a triable issue. The court may dismiss the motion, rule that only certain issues require a full hearing, or determine the entire application: F.B. v. S.G. (2001), 2001 CanLII 28231 (ON SC), 199 D.L.R. (4th) 554 (Ont. S.C.).

[79] The powers of the court have been expanded in Rule 16 and are specifically laid out in Rule 16(6.1) as follows:

POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[80] In the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the court established a two-step approach for deciding whether a genuine issue requiring a trial exists under a summary judgment motion and the appropriate time to exercise the expanded powers available to the court under that rule. In the case of Philion v. Philion, 2015 ONSC 4255, Kent J. summarized the test for summary judgment as follows:

First, the motions judge should take a liberal approach only on the evidence before her, without using new fact-finding powers. If the summary judgment process provides a motions judge with the evidence required to fairly and justly determine the issue, and as a timely affordable approach to the procedure, it will be held if there is no genuine issue requiring a trial, and;

Second, if there appears to be a genuine issue requiring a trial, the motion judge will at her discretion to weigh evidence, evaluate credibility and draw reasonable inferences to determine if the need for trial can be avoided by using these new tools to come to a fair and just result.

[81] During counsels’ submissions in response to my query, both agreed that there was sufficient evidence to enable this court to make an order by way of summary judgment in favour of either party; however, if I find there is not enough evidence, then Ms. McCarthy is asking this court for a directed trial and Ms. Nardi-Bell is asking this court for a full trial.

[82] In concluding whether or not I have before me sufficient evidence to persuade me to make a finding of summary judgment, upon my review of the material, I have summarized and categorized and have made findings on the evidence.

Admissibility of Evidence

Barbara Fidler’s Report

[83] It is undisputed that Dr. Fidler did not interview the children or the mother. Ms. Nardi-Bell is asking the court to not admit the report. Ms. McCarthy is asking the court to consider Dr. Fidler as an expert in parental alienation in support of the Applicant’s request for Family Bridges.

[84] Although I find there is no legal basis upon which I would not admit Dr. Fidler’s report, I do find it would serve a very limited purpose. Although Dr. Fidler may be recognized as an expert in parental alienation, Dr. Fidler would not be able to provide me with an opinion with respect to these particular children and these particular parents. At best, she would only be able to hypothesize.

The Video

[85] With respect to the video taken by Mr. Mattina shortly before separation, I find it would likely be inadmissible. First, I agree with the Respondent’s counsel objection that Ms. Mattina was not given the opportunity to examine the video professionally. Second, it was not provided to the Respondent’s counsel, in a timely fashion, by October 1, 2016.

[86] Even if I am wrong, much has happened since the taking of the video, leaving the court to conclude that in its consideration of the totality of the evidence, the outdatedness of the video would have very little probative value.

Incidents of Violence

[87] The issues of violence as discussed in the Section 30 Assessments were most prominent in the reports of the various professionals. However, there is a difference of recollections amongst the parties and the children.

Mr. Mattina’s Recollection

[88] In his affidavit of June 13, 2017, Mr. Mattina states at para. 21, “The children now also make false generalized allegations that I was abusive to them.” At para. 24, he states, “As part of the Imago therapy, Ms. Mattina and I disclosed that I had physically disciplined N by slapping him during the previous week.”

[89] In that same paragraph, Mr. Mattina indicates that “the CCAS investigated after learning that we were in parenting courses, the CCAS worker said we were taking appropriate steps and there was no further involvement of the CCAS until we separated.”

[90] Paras. 37 and 38 of Mr. Mattina’s affidavit of August 17, 2017, read as follows:

Having learned more about families with contact problems, I learned that I too played a part in the access difficulties with an impact on our family today.

Having said this, and without addressing each allegation individually, the majority of the incidents reported by my sons in their affidavits are false and relate to no incident I have any recollection of. For example, the incident where S states I made the boys place their fingers in their bedframes is completely false.

[91] On page 16 of Michelle Hayes’ first report of July 2014, Mr. Mattina admitted the parties entered into heated arguments with the result of pushing and shoving, but Mr. Mattina denied perpetrating violence against Ms. Mattina or “physically abusing her.” According to page 17 of Ms. Hayes’ report, Mr. Mattina did state that he had used inappropriate physical discipline in the past with the children.

[92] In a counselling session between the parties and Dr. Taynen on June 1, 2010, Dr. Taynen made the following observations:

Vince has also been physically violent with his children, which his wife openly disapproves of. It mainly involves the 10 year old son and Vince makes a point of emphasizing he has not hit the other two because they are younger. When there is difficulty he is susceptible to becoming angry quickly and slaps S in the face, leaving a red mark. There are no beatings and there is no punching. S cries and the children are frightened by their father. Such incidents happened approximately monthly.

Ms. Mattina’s Recollection

[93] Ms. Mattina refers to Mr. Mattina’s violent behaviour in paras. 31 and 32 of her affidavit of June 21, 2017, wherein she describes witnessing Mr. Mattina breaking “chairs, lamps, light bulbs, plates, glasses and doors.” With regard to an incident where Mr. Mattina punched a hole in the wall, Ms. Mattina describes how he forced S and N to hold hands and stand by the wall while he punched a hole between their heads.

[94] In para. 57 of Ms. Mattina’s affidavit of June 21, 2017, she speaks of an incident where Mr. Mattina wrapped his arms around S’ neck and shoulders as S was walking from one field to another.

The Children’s Recollection

[95] At page 31 of the Section 30 Assessment of July 2014, Ms. Hayes indicated that N reported the following:

• He spoke of his observation of his father throwing his mother against the wall and punching holes in the wall by the bathroom.

• He described himself as feeling scared of his father, even with the assessor present.

[96] At page 33 of the Section 30 Assessment of July 2014, Ms. Hayes indicated that A reported the following:

• A described his father as punching him in the leg or the arm with a closed fist.

• He reported to Ms. Hayes that his father had punched a wall by the bathroom when he was angry.

• A could also remember a time when he saw his father hit N with a toy gun and when his father pushed his grandmother.

Incidents of Violence as Described by the Children to other Professionals in the Section 30 Assessments

Catholic Children’s Aid Society of Hamilton

[97] Summarized at pages 46-49 of the July 2014 assessment, the records of the Catholic Children’s Aid Society of Hamilton sets out incidents of violence as follows:

• On February 19, 2013, “it was disclosed [during therapy] that Mr. Mattina has ongoing conflict with N and he could lose his temper and strike N…The last incident that could be recalled was on Sunday, February 17, 2013. Mr. Mattina stated that it is only N that this occurs with, as they just seem to always been [sic] in conflict and he knows ‘what buttons to push.’”

• Ms. Mattina had tried to intervene in an incident between N and Mr. Mattina and she was hurt in the process. At the time, Ms. Mattina said she was unsure of how she got hurt and by whom.

• N was the one disciplined the most often. “N explained that the last incident was a couple of weeks prior when his father slapped him across the face. He denied any marks being left as a result. He explained that his face was red for a few minutes, but then it disappeared.”

• The children reported that Mr. Mattina gets angry quickly and yells.

• The children reported that Mr. Mattina had hit Ms. Mattina in the past, but not for a while.

• “Ms. Mattina advised that the previous evening [April 7, 2013], she had arrived home and N was in his room and Mr. Mattina was in the hallway holding the door closed. Mr. Mattina allegedly refused to allow N to come out and he was very upset banging on the door and crying. She explained that she was able to get Mr. Mattina away from the door and let N out. When he came out, he was so upset he could not speak. Ms. Mattina reported that Mr. Mattina started to film him…”

Imago [Couples] Therapy – Ms. Susan McBride and Dr. Cornfield

[98] From the clinical notes of the Imago couples therapy, summarized at pages 54 and 55 of the July 2014 assessment, Ms. Susan McBride and Dr. Cornfield reported the following incidents of violence:

• It was disclosed in group that inappropriate physical violence was used by Mr. Mattina towards the children. It was this disclosure that precipitated the report to CCAS.

• The therapist observed that Mr. Mattina seemed to be able to apply feedback in the group to his own relationship. He participated frequently but content was often lacking.

Clinical Notes on N - Dr. Sheri Findlay

[99] In her discussion with N, summarized at page 57 of the July 2014 assessment, Dr. Findlay set out the following:

• “N said that his father had attended his brother’s athletic games and he had attempted to talk to N, which made N think of the time his father hit him.”

• “N reported a history of violence towards him and his brothers by his father, as well as a history of domestic violence against the mother.”

Clinical Notes on S - Dr. Sheri Findlay

[100] In her discussion with S, summarized at page 58 of the July 2014 assessment, Dr. Findlay set out the following:

• “The history provided indicated that S was the product of a very violent home and his father was physically abusive towards him and his mother.”

Findings on Violence

[101] The incidents of violence as reported by the children, which they either observed or were the subject of at the hands of their father, I find to be credible. Although they do take the form of hearsay, they are included within the four corners of Ms. Hayes’ Section 30 Assessment, during which Ms. Hayes did not express any skepticism as to the veracity or credibility of the children regarding the incidents. Moreover, they were voiced to several professionals who were involved with these boys over several years.

[102] Although Mr. Mattina either denied the incidents, could not recall the incidents, or said that they were exaggerated or false, he provided sparse, alternate explanations for his behaviour. This to me suggests that he may not fully appreciate the impact of his behaviour on his sons.

[103] As well, I note that in her recommendation of an intensive therapeutic weekend, Ms. Hayes stated at page 38 of the updated assessment of May 2015, the following: “The goal of such an intervention was to address the anger, frustration and fear that the children experienced as result of the abusive behaviour exhibited by their father toward them.”

[104] It appears Ms. Hayes accepted the fact that the boys had been the subject of abusive behaviour by their father.

[105] Although Ms. McCarthy in her submissions made reference to the notes of Dr. Taynen, the marriage counsellor, and specifically the note of April 24, 2013, wherein he appeared to minimize the father’s acts of violence by describing the father as “occasionally smack[ing] the children” and concluded “he was not a beater”. This is the same Dr. Taynen that stated on June 1, 2010, that Mr. Mattina was “physically violent with the children” and that “such incidents happened approximately monthly.”

[106] Although I recognize that the comments are three years apart, I find there is no context within Dr. Taynen’s more recent comment to persuade me that the violence between the father and the children had been comparatively reduced.

[107] Accordingly, I find on the evidence that during the marriage, on several occasions, these children suffered physical abuse at the hands of their father on several occasions. Therefore, on that question, there is no triable issue.

Views and Preferences of the Children in their Discussion with Professionals

[108] Another issue to be determined is the views and preferences of the children which were ascertained in the assessment of Ms. Hayes and the reports and observations of other professionals.

S: Assessment of Ms. Hayes

[109] In her initial assessment of July 2014, Ms. Hayes noted at page 26 that after an observation visit between S and his father, S indicated that he “felt sick”. Consequently, he was required to attend an emergency room for medical treatment. Again, in her further discussion with S in the updated assessment of May 2015, Ms. Hayes made the following observation at page 13: “S said he still does not want to see his dad even after having spoken to 13 professionals.”

N: Assessment of Ms. Hayes

[110] In her initial assessment of July 2014, Ms. Hayes made the following observations at page 31: “N told the assessor that he wants his father out of his life” but “upon reconsideration, N indicated his father would have to not be angry or hit them all the time to show that he loved his children.” Again, in her further discussion with N in the updated assessment of May 2015, Ms. Hayes made the following observation at page 14: “...he does not want a relationship with his father, and he is ‘sick and tired’ of talking about it.”

A: Assessment of Ms. Hayes

[111] In her further discussion with A in the updated assessment of May 2015, Ms. Hayes made the following observation at page 15: “A asserted that he did not want to see his father anymore.”

Matthew Penman, M.S.W., Child and Adolescent Services

[112] In the Section 30 Assessment of July 2014, Matthew Penman reported, at page 40, that “the two boys [referring to S and N] experienced stress after having met with their father. The boys allegedly said that they did not want to meet with their father. Both children reported having ‘big feelings’ when their father attended their community events.”

Lourdes Geraldo, B.S.W., M.S.W., Reconciliation Therapist

[113] At page 41 of the Section 30 Assessment of July 2014, Lourdes Geraldo reported that the children told her “they had no interest in seeing their father.”

Teresa Michell, Child Protection Worker, Catholic Children’s Aid Society of Hamilton

[114] At page 43 of the Section 30 Assessment of July 2014, Ms. Michell indicated the following: “Ms. Michell had questions about the interim recommendation made for therapeutic reconciliation between Mr. Mattina and the children. She indicated that the children have stated that they do not want to see their father.”

Dr. Schuler, Ph.D, R.S.W.

[115] After interviewing S and N, Dr. Schuler in a letter addressed to Mr. Mattina dated April 7, 2016, provided his opinion beginning at the second paragraph of that letter:

Given my conversation with your children (namely S and N), it seems clear that they are not ready to undergo a therapeutic process with you, and that their current position is based on a number of concerns that they have about your ability to address past family events. Though N didn’t make the suggestion to me that he would be willing to receive a letter from you outlining ‘what you think you need to address’ to resolve the current issues, I worry that such a letter would be undertaken in the absence of therapeutic support to N (the sending and receiving of therapeutic letters can potentially raise unresolved emotions for children/youth, and, therefore, should only be undertaken within the context of therapy). Therefore, I highly recommend that you allow your sons to first enter into therapy on their volition, and that any therapeutic process be guided by the expressed wishes of your three children (under the guidance of a therapist familiar with issues related to family disputes/violence). Therefore, as noted in our recent telephone conversation, I recommend that we suspend my service until such time that your children express a desire to undergo therapy.

Therapeutic Weekend

[116] In recalling Ms. McCarthy’s submissions, she indicated that the children’s decision to not participate in the therapeutic weekend, and therefore not comply with McLaren J.’s order, empowered them. The suggestion of Ms. McCarthy’s submissions was that that kind of empowerment for these children was inappropriate.

[117] However, in a letter dated October 1, 2014, from Ms. Geraldo to counsel for the Applicant and Respondent, and subsequent to a telephone conversation she had with both counsel regarding information she shared from each parent, the children, the CCAS and the children’s new therapist, Karen Timmerman, read as follows:

This information indicated that the weekend intervention, as ordered by Justice McLaren, was not likely to take place or have a successful outcome due to a number of factors: The level of resistance expressed by the children was high. They expressed defiance, upset, anxiety and fear at the proceeding.

[118] Further on in the letter, Ms. Geraldo stated as follows:

The children’s therapist, Karen Timmerman, stated that upon meeting the children individually on one occasion and in a joint session with her mother, she did not recommend that the therapeutic intervention proceed the coming weekend. She expressed concern about the impact of historical trauma upon the children. It was Ms. Timmerman’s view that she could also assist Ms. Mattina and move beyond the historical issues. Ms. Timmerman did not view Ms. Mattina as able to be direct with the boys or be able to force them to attend a therapeutic weekend due to the impact of the family dynamic upon her.

Ms. Timmerman (M.S.W.) stated that it may be too early for this intervention to take place. She viewed this as detrimental to their mental health at this juncture. She indicated that she will continue to work with the children and the mother. Ms. Timmerman questioned whether Mr. Mattina had done sufficient work to demonstrate to the boys that he could be the person that they need him to be.

[119] McLaren J. did not have the information or the observation of either Ms. Geraldo or Ms. Timmerman at the time she made her order.

[120] In my opinion, in view of the comments of both Ms. Timmerman and Ms. Geraldo, it was not a matter of the children being inappropriately empowered, but it was a matter of a legitimate concern for the impact on the children’s mental health.

Findings on Views and Preferences

[121] I find that the views and preferences of S and N have been consistent throughout their discussions with approximately 13 different professionals. Their position is clear, namely, that they do not wish to have contact with their father and they do not want to participate in further therapy. Neither of those positions I find is disputed.

[122] There is no evidence to suggest in either the affidavit material or the reports prepared by Ms. Hayes and Ms. Geraldo in their discussions shared by the other professionals that the children’s views and preferences had been manufactured, are not genuine or have been duly influenced by their mother.

[123] For example, Ms. Hayes concluded that Ms. Mattina may not be able to “secure the children’s attendance and participation”. However, Ms. Hayes did not suggest or opine that Ms. Mattina was the cause of the children’s refusal to participate.

[124] On the contrary, at page 77 of Ms. Hayes’ report of July 2014, she concluded that “Ms. Mattina has shown that she is able to appropriately facilitate support of service for the children on an academic, medical and counselling front”.

[125] The issue before me is how much weight to give the views and preferences of S and N.

[126] In the case of N.L. v. R.R.M., 2016 ONSC 809, 76 R.F.L. (7th) 428, Perkins J. gave a thoughtful decision regarding the views and preferences of children.

[127] He spoke of the difficult task of the court, in custody and access cases, in balancing the children’s best interest in custody and access cases with what he called the “growing entitlement to personal autonomy and respect of their views and preferences.”

[128] In that case, although the father was granted sole custody of his two sons after an arbitration hearing, the sons being 18 and 16 years of age, respectively, the older son refused to go with the father and the younger son ran away from the father. Furthermore, both sons refused to attend reunification treatment.

[129] The police also brought a motion to remove police enforcement provisions which formed part of the order, and the mother brought a motion to change the order to provide her with custody of her sons. The father brought a motion to enforce the existing custody order.

[130] In that case, although the father asked the court to disregard the children’s wishes, Perkins J. concluded, at para. 140, that even if the wishes were truly not the children’s own wishes, “the expressed wishes are strong, consistent, and long lasting, and they have been acted on by the children in defiance of the authority of both parents, the arbitrator, the police, and this court’s order. The fact is that the current custody order in favour of the father has not worked.”

[131] Perkins J. gave primary consideration to the boys’ views and preferences and ultimately made an order that no person was to have custody or access rights over either of the sons under any statute or any non-statutory jurisdiction of the court. Perkins J., at para. 150, found that “Each of the sons is his own master in that respect.”

[132] In the case before me, and borrowing the words of Perkins J., I find the wishes of S and N to be “strong, consistent and long-lasting”. As well, they are 17 and 16 years of age, respectively.

[133] With respect to the son S, he will be 18 on October 4, 2017, after which the court will lose jurisdiction. Given this young man’s maturity, his clear wishes and the fact that he is weeks away from becoming an adult, it would be inappropriate for this court to make any order for custody with respect to S.

[134] With respect to the child N, other than the fact that there is almost a two-year age difference between him and his brother S, I find he has reached a level of maturity that would persuade this court to respect his views and preferences.

[135] And although I have considered the article of Dr. Knier in the case of S.D.G. v. D.K.N., titled “The Importance of the Fathers”, many of the factors referred to by Dr. Knier have to do with the presence of a father during child development. In the case before me, S and N are significantly older and have arguably already undergone a significant period of childhood and adolescent development.

[136] In coming to my conclusion, I was assisted by the comments of Dr. Schuler in his letter. Although it is conceded that he was not a court-appointed expert, nevertheless, he was one of the two experts selected by Ms. Hayes to provide the children with ongoing therapy. Therefore, I can assume that Ms. Hayes’ selection was based on her respect for Dr. Schuler’s expertise. Moreover, Mr. Mattina did not object to Dr. Schuler as a therapist and, in fact, agreed to pay for his services.

[137] I therefore find that the wishes of S and N, not to see their father and not to participate in further therapy, are to be respected and given full weight.

[138] This leaves the child, A. Although he is only 10 years of age, there is nothing in the evidence to suggest he does not have a healthy relationship with his older brothers and his mother. In this case, therefore I find that his young age should not diminish the significance of his views and preferences.

[139] Furthermore, I find that granting Mr. Mattina sole custody of A only, would mean isolating him from contact with his two brothers and mother for the 90-day blackout period. Therefore, in my opinion, this option would place A at risk of emotional harm, particularly within the context of the high conflict which he experienced throughout the marriage.

[140] Given the evidence of the views and preferences of the children, which I find to be persuasive, I find on this point there is no triable issue.

Family Bridges

[141] Family Bridges was briefly referred to by the father in his affidavit of June 13, 2017. At para. 90, Mr. Mattina states:

I believe that it would be more economical, in terms of both time and money, to simply move ahead with the last and final possible reintegration system, being Family Bridges. There are no other options. Alternatively, it would be much more efficient to have Ms. Hayes provide evidence first and have the court then assess what other evidence might be needed.

[142] I have already found that the views and preferences of the children not to see their father and not to participate in therapy are to be respected and given full weight. Ordering the children’s participation in Family Bridges would be inappropriate given my finding.

[143] In any event, I will comment on why I think Family Bridges would not be suitable in the circumstances of the case before me.

[144] In support of her recommendation of Family Bridges, Ms. McCarthy quoted the case of X. v. Y., for which she was counsel for the Applicant father.

[145] In my review of the facts of the case, I note that during the 14-year marriage which was described as rocky, although it was not the strongest relationship between the father and the children, there was no evidence of violence initiated by the father.

[146] As a matter of fact, after the parties agreed to separate, they continued to reside in the same residence from January 2014 to March 2014. If there was any existence of high conflict, it would not support that arrangement.

[147] At trial, Trimble J., after assessing the evidence and having the benefit of two expert opinions from Howard Hurwitz and Lourdes Geraldo, found that the mother’s behaviour regarding the oldest child, A, amounted to “parental alienation,” and for that reason, he recommended Family Bridges.

[148] In his opinion, Trimble J. found that there were significant features of alienation perpetrated by the mother. Trimble J. stated the following at para. 182: “Y the mother has been compliant, superficially, with all the expectations from the original assessment.

However, despite this, it has not served to curb her problematic behaviour and the impact on the children continues to be severe.”

[149] The circumstances that I have described in the case of X. v. Y. do not exist in the case before me. There is no evidence of undue influence by the mother on the children; the children have expressed their unfettered wishes clearly and unequivocally.

[150] Although I do not have conclusive evidence that the Family Bridges program is confined to cases of parental alienation, it is clear to me that it is a program of extraordinary measures which exists to combat parental alienation as the result of inappropriate behaviour toward the children by one parent; or it is to address circumstances in which children do not want to see one parent for no apparent justifiable reason.

[151] Again, I find neither of those circumstances exist in the case before me, which, first has clear examples of violence perpetrated by Mr. Mattina and, second, has no evidence of Ms. Mattina attempting to undermine the children’s relationship with the father. Therefore on the evidence before me, I find there is no triable issue to determine the feasibility of Family Bridges. I find further testimony from Ms. Hayes will not be necessary.

Final Order

[152] Therefore, on the totality of the evidence, I find there is no factual issue requiring a trial. In other words, there is no triable issue. I am satisfied that the Respondent has made a case for summary judgment and, therefore, in accordance with my power under Rule 16, I make the following final orders:

1. No order of custody with respect to the child S, meaning that no person has custody or access rights over S under any statute or under any non-statutory jurisdiction of the court.

2. Custody to Ms. Mattina of N and A.

3. Access and communication to Mr. Mattina at N’s discretion and access and communication to Mr. Mattina at A’s discretion in consultation with Ms. Mattina.

4. Mr. Mattina may continue to attend the children’s extracurricular events and Ms. Mattina is to continue to keep Mr. Mattina informed of the children’s medical appointments, dental appointments, any emergencies, school activities, extracurricular events and the like.

5. The Applicant’s motion for summary judgment and for a directed trial is dismissed.

6. Given my findings and order, it is not necessary for me to consider Mr. Murdoch’s motion and, therefore, it is dismissed.

7. On the issue of costs, parties are to prepare for me written submissions of no more than seven pages in length, in addition to their bill of costs. Submissions are to be filed and served by no later than December 31, 2017.

Mazza, J.

Date: September 26, 2017