Introduction

[1] This is a very sad case of children having suffered significant emotional harm as a result of being exposed to their parents’ post-divorce conflict. Not only have they been exposed to, and considerably involved in their parents’ dispute, they have been interviewed by countless Children’s Aid Society workers, police officers, and mental health professionals over the past nine years for the purpose of validating or nullifying their parents’ concerns and allegations about the other parent. This family was the subject of two comprehensive custody and access assessments; one in 2009 (by the Office of the Children’s Lawyer (OCL)) and one in 2016 (by Dr. Arthur Leonoff). Despite these two comprehensive assessments, the parties do not yet fully understand how their own actions and behavior have created the emotional turmoil in which their children find themselves today.

[2] The parties’ eldest child, Zachary (now 15), has had little to no contact with his mother for the past two years. He is completely alienated from her and there is very little hope that this will change in the short or long term. Both parties agree that there is little that this Court can do to undo the significant emotional and psychological damage that Zachary has suffered following his parents’ separation, and that he will continue to suffer in the future as a result of his decision to sever all ties with his mother.

[3] There is parental alienation, and there is alienation. These are two very different concepts. The first involves a parent who engages in a course of conduct that results in a child being alienated from one of his or her parents. The later involves a situation where a child, as a result of many factors and circumstances, becomes alienated from one of his parents. In the context of this trial, I was asked to determine which type of alienation Zachary had suffered, and to make a residential order that would protect his 11 year old brother, Jacob, from suffering the same fate. As will be explained in greater detail below, I come to the conclusion that many factors contributed to Zachary being alienated from his mother. This is not a case of parental alienation: both parties’ actions, coupled with Zachary’s own predispositions and personality, led to his becoming estranged from his mother.

[4] For all of the reasons explained below, I also conclude that it is in Jacob’s best interests to continue to share his time equally with both of his parents. The only way for the parties to preclude Jacob from following in his brother’s footsteps (and cutting all ties with either of his parents) is for them to gain the insight that they need to change their behavior towards their children, and more importantly, towards each other.

The Issues Before the Court and the Position of the Parties

[5] This Motion to Change was originally brought by Mr. Quenville, seeking to vary the custody and access provisions of Justice McMunagle’s final Divorce Order dated January 26, 2011. At the beginning of the trial, the parties confirmed their agreement that a final order should go granting Mr. Quenville sole custody of Zachary, who will have his primary residence with his father and access to his mother as per his wishes and preferences. The parties also agree to a final order granting Ms. Goodfellow sole custody of Jacob.

[6] Therefore, this trial focused on one main issue, namely, what residential order would be in the best interest of Jacob at this time?

[7] The father, Robert Quenville, is asking that the existing equal timesharing arrangements remain in place (week on – week off with a mid-week overnight access to the non-residential parent). This is an important departure from his initial position in this motion to change in which he was seeking sole custody of both boys with primary residence with him.

[8] The mother, Tesha Goodfellow, is asking that Jacob’s primary residence be with her, and that Mr. Quenville be granted access every second weekend from Friday to Monday. In the alternative, if this Court deems it necessary, Ms. Goodfellow asks that Mr. Quenville’s access with Jacob be supervised or suspended all together for such period of time as may be required to rehabilitate Jacob from the damage that she alleges he has suffered as a result of his father’s alienating behavior, and to provide Mr. Quenville with an opportunity to receive counselling. This is also a departure from her initial position in her Response to Motion to Change in which she was seeking that access to Mr. Quenville be every second weekend as well as one evening per week.

[9] This Court is also asked to retroactively adjust child support payable by the parties for their two children. I will deal with this issue last.

Custody and Access: The Legal Framework

[10] Section 17 of the Divorce Act, 1985, c. 3 (2nd Supp.), allows a court of competent jurisdiction to vary an existing custody order. Its relevant provisions are as follows:

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Terms and conditions

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

Conduct

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

Maximum contact

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

[11] In making a custody or access order with regards to a child, I am required by virtue of s. 16 of the Divorce Act, 1985, c. 3 (2nd Supp.) to consider the following legal principles:

Order for custody

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

Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Factors

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

Past conduct

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

Maximum contact

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

[12] Ontario courts determining custody and access matters under the Divorce Act also refer to the criteria set out in section 24(2) of the Children’s Law Reform Act to define the concept of a child’s best interests:

Best interests of child

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

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application.

Background Facts and First Court Proceeding

[13] There was significant evidence presented to the court during this trial which focused on only one issue. While all of the facts and events which led to this trial will not be reiterated here, I wish to assure the parties that they have all been carefully considered by the court.

[14] The parties married on October 6, 2001 and separated at some point during 2006, although they continued to reside under the same roof until they physically separated in 2008. They divorced in 2011. They have two children together, Zachary Quenville, born on August 29, 2002, and Jacob Quenville, born on December 12, 2005. At the time of the parties’ physical separation, the children were approximately 3 and 6. They are currently 11 and 15. Ms. Goodfellow re-partnered in 2010. Her and her partner, Mr. Miguel Gil, have one child together, namely, Mia Jazmine Goodfellow-Gil (“Mia”), who was born on December 24, 2013.

[15] When the parties physically separated in September 2008, the children remained in their mother’s primary care. It is not seriously disputed that Mr. Quenville had a hard time accepting the separation. The parties had sought couple’s therapy while still residing together but it was not successful. Mr. Quenville sought assistance from a priest, his family doctor, and eventually started seeing Dr. Garcia, a psychologist who has provided him with ongoing (on-and-off) counselling since 2007.

[16] The parties’ separation was fraught with conflict and mistrust that was significantly fueled by their continued cohabitation while separated for almost two years. By the time they separated, trust was lost, anger and resentment were high, and the fear of losing their children (in Ms. Goodfellow’s case, of losing sole custody of her children) had significantly clouded their ability to parent in a cooperative and constructive manner.

[17] In 2008, Ms. Goodfellow filed an application seeking an order granting her sole custody of the children, which Mr. Quenville contested. Pursuant to a temporary agreement reached in mediation, the children remained in their mother’s primary care and Mr. Quenville began seeing them every second weekend from Friday to Sunday as well as every Monday and Thursday after work for a few hours.

[18] On May 8, 2009, a consent order was made appointing the Office of the Children’s Lawyer (“OCL”) to investigate and make recommendations to the court on parenting arrangements. At that time, Mr. Quenville was seeking an order granting the parties joint custody of the boys, with an equal timesharing arrangement. While acknowledging that the parties had had difficulty co-parenting in the past, he was of the view that the boys needed their two parents and that the situation had somewhat improved in the recent past. He felt that with help, they would be able to co-parent.

[19] Ms. Goodfellow, on the other hand, was of the view that an order granting her sole custody and primary residence of the children would be in their best interest. She claimed that she had always been the children’s primary caregiver and that Mr. Quenville had proven impossible to co-parent with. She was concerned about Mr. Quenville’s inconsistency in caring for the children, his involving the children in the disputes between them, using them as messengers, telling them inappropriate and denigrating things about her family, asking them to keep secrets from her and listening to telephone conversations between the children and herself.

[20] In August 2008, Ms. Goodfellow had sought the assistance of the Children’s Aid Society (“CAS” or “Society”) and of the police services following an altercation between her and Mr. Quenville which took place in front of the children. This was the first of many more police and CAS’ involvement to come. At the time of this first Society intervention, the parties were still residing together. The dispute arose around Mr. Quenville’s request and desire to travel with the children to Sudbury and Ms. Goodfellow’s request and desire that such change in the schedule be recorded in writing. A physical altercation occurred between the parties which ended with a struggle for a piece of paper which the mother eventually secured by putting it in her mouth, and with the father pushing the car door shut on Ms. Goodfellow’s leg, all of which occurred in front of the young children. This incident led to the involvement of both the police and the Society, and in the interview of Zachary by a Society worker. Ms. Goodfellow’s concerns with respect to the father were not verified, however, in light of the parental conflict, the parties were both provided with information on parental alienation and the dangers of involving the children in parental conflict.

[21] In the meanwhile, the OCL continued its investigation and, on November 6, 2009, provided its written report. The experienced clinical investigator who performed the investigation (Ms. Marie-Paule Lafleur) concluded that both parents had very strong parenting skills. They were both very caring parents and both wanted to be involved in their children’s lives. She found that the children were sensitive and had difficulty adapting to their parents’ separation. At that time (the children were then 4 and 7), Ms. Lafleur was already seeing the emergence of a conflict of loyalty in Zachary evidenced by his expressed desire to spend an equal amount of time with both his parents, so as to not cause any sadness to either one of them. She recommended a joint custody regime with the children spending one week on and one week off with each parent, with a Wednesday overnight midweek visit to the nonresidential parent.

[22] These recommendations came as a shock to Ms. Goodfellow who initially did not accept them. A trial was set to proceed in October 2010. The CAS became involved once again in January 2010, after Jacob asked his mother to promise that she would not “hit him like his father did”. When Ms. Goodfellow reported this incident to the CAS, she also reported that Mr. Quenville had been “violent” towards the children when they lived together, suggesting that physical violence had taken place. She further advised the Society that both boys had sexualized behaviors and suggested that this could be related to Mr. Quenville’s regular access to pornography on his computer. She also reiterated many of the concerns she had related to the Society at the time of their first involvement. She disclosed her worries that Mr. Quenville may come to her house and force his way in as he had allegedly done in the past.

[23] This led to the children and Mr. Quenville being interviewed by Society workers. While both boys talked about rough play with their father, and that it sometimes hurt them, they did not disclose any physical discipline by either parent nor did they disclose any fear of either parent. The Society was of the view that individually, both parents had positive parenting skills and a good relationship with the children. However, the children appeared to have a heightened awareness, for their ages, of the issues between their parents. The file was closed and the parents were warned, once again, of the dangers of exposing their children to their conflict.

[24] In June 2010, Mr. Quenville called the CAS to report his concerns about the children’s deteriorating behavior, which included biting others at school, stomach pains and other upsets which in his view resulted from Ms. Goodfellow putting pressure upon them and involving them in the litigation. In addition, Zachary had discovered that his mom was writing a blog on the Internet entitled “Mr. Wrong”, which he understood to describe all of his father’s shortcomings as a husband and a father (which it did, at least in part). How Zachary, who at the time was eight years old, could have found that blog on the Internet on his own is a mystery to me. I find it more likely than not that the blog was made available to him by Mr. Quenville. In any event, finding this blog made Zachary quite upset and angry at his mother. When Ms. Goodfellow realized that her son had had access to this blog, she immediately apologized and removed it from the Internet. Unfortunately, the damage was done and Mr. Quenville’s report of the children’s deteriorating behavior caused the Society to become involved again. When interviewed by a Society worker Ms. Goodfellow reported concerns about Mr. Quenville trying to brainwash the children against her. Once again, the file was closed and the parents warned about the risks associated with parental conflict.

[25] The parties did not proceed to trial. In October 2010, they signed final Minutes of Settlement which were incorporated into a consent Divorce Order dated January 26, 2011. Ms. Goodfellow testified that she felt she had no choice but to agree with the OCL recommendations as she was financially and emotionally depleted at the time. The parties’ consent divorce order is 13 pages long, and includes 84 paragraphs, 74 of which deal with all areas of parenting. The parties agreed to a joint custody regime with an equal time sharing arrangement as well as a detailed parenting schedule outlining how they would share summer vacations, holidays and special occasions. The order includes provisions dealing with communication, access to information, exchange of clothing, right of first refusal, telephone access, third-party contact, travel, as well as exposure of the children to tobacco smoke and new partners. The order provided that in the event of a disagreement with respect to an incident of parenting, the parties were to resolve the issue with the assistance of a parenting coordinator.

Events that Prompted the Current Motion to Change

[26] Despite their comprehensive Parenting Order, the OCL’s detailed investigation and report, and their sons’ deteriorating behaviors, the parental conflict did not subside. In fact, it continued to escalate. If there is one thing that both parties agree on, it is that their co-parenting following the consent divorce order did not work well. The evidence adduced at trial by both parties clearly shows that the parties could not agree on pickup and drop-off times, vacation requests, changes in the parenting schedule, exchange of information about the children, bus transportation, attendance at weddings, travel consents, day care costs, choice of extracurricular activities, and so on. Having reviewed the parties’ counsel’s letters, and the exchanges of emails between the parties on various topics, I find that they were both uncooperative at times with respect to requests made by the other parent, and unreasonable at times in the requests they made of the other parent.

[27] At some point in 2010, Ms. Goodfellow began dating Mr. Gil. They had become friends at some point after the parties’ separation but only began a romantic relationship in 2010. They moved in together in the summer of 2010. It was Mr. Gil’s evidence that he first met the parties’ children after he moved in with Ms. Goodfellow. This appears to be a very drastic way of introducing a new partner to one’s children, putting them in front of a fait accompli. In any event, according to Mr. Gil and Ms. Goodfellow’s testimony, the children were “thrilled and excited” about him moving in, but this was short-lived.

[28] Of significance is an altercation that took place between Mr. Gil and Mr. Quenville on Halloween 2010, shortly after Mr. Gil had moved in with Ms. Goodfellow. At the request of Ms. Goodfellow, Mr. Quenville was to drop off a pair of pants belonging to Zachary at her home, as she needed them for his costume. It was Ms. Goodfellow’s evidence that she had asked Mr. Gil to meet Mr. Quenville outside of the home to retrieve Zachary’s pants while she was giving supper to the boys inside, as she wanted to avoid contact with Mr. Quenville. When Mr. Quenville arrived at Ms. Goodfellow’s home, Mr. Gil was already outside waiting for him. When he asked Mr. Quenville to give him the bag, indicating that he would give it to Ms. Goodfellow, Mr. Quenville objected and insisted on seeing Ms. Goodfellow personally, adding that he also needed to give her a child support payment. This led to a pushing match between the two men, and to Mr. Quenville forcing himself into Ms. Goodfellow’s home. Mr. Gil, who had followed the other man inside, announced to Ms. Goodfellow in front of the children that “they had an intruder” and threatened to call the police and to have him charged with trespassing. At that point, Ms. Goodfellow took the pants and the cheque and told Mr. Quenville to leave, which he did. Thereafter, Mr. Quenville obstinately refused to go back to Ms. Goodfellow’s home based on his alleged fear that he would be accused of trespassing and that the police would be called. This altercation between the two men in front of the children was a turning point for this family, and most importantly for the children.

[29] The evidence at trial demonstrates that from that date, Zachary began to show a growing contempt towards his mother and Mr. Gil, by being increasingly rude, disrespectful and belligerent toward them. Of note is the mother’s account of an out-of-town hockey tournament that Zachary attended with his maternal family, and during which he spat in his brother’s face, leading to disciplinary intervention by Ms. Goodfellow and Mr. Gil, followed by Zachary insisting on being given privacy to call his father. Whatever his father told him did not help calm down the situation. Quite to the contrary, Zachary’s behavior unraveled. At the end of the weekend, he was telling his mother that he wanted to live with his father.

[30] In their testimonies, Ms. Goodfellow and Mr. Gil recounted several other events involving the same pattern: Zachary would behave offensively or inappropriately towards his mother, Mr. Gil or his siblings; Ms. Goodfellow (and sometimes Mr. Gil) would discipline him or take away privileges; Zachary would turn to his father to complain; and Mr. Quenville (not being fully aware of the entire situation) would come to the rescue, thus boosting his bond with his son while undermining the mother’s parental authority towards Zachary.

[31] One morning in December 2015, Zachary was upset because his mother and brother were not getting ready fast enough in the morning and he became rude towards his mother while in the car on their way to school. This led Ms. Goodfellow to warn him that he would have to take the bus to school instead of getting a ride in the mornings if he continued to behave this way. When later that day he became disrespectful to her once again, she told him that he would have to take the bus to get to school in the morning from thereon. Probably unaware of these events, Mr. Quenville, at the request of Zachary, drove to Ms. Goodfellow’s home the next day to pick him up and drive him to school. However, as he was pulling out of Ms. Goodfellow’s street, Mr. Quenville saw her parked down the street and he drove towards her, honking the horn to get her attention. Ms. Goodfellow, who by her own admission had parked close by to see whether Zachary’s father would come pick him up, perceived Mr. Quenville’s actions as an attempt to follow her by car, which she alleged “caused her great distress.” Mr. Quenville, on the other hand, explained that he was only trying to get her attention to find out whether or not she was taking Zachary to school, and if not, to let her know that he was. Zachary witnessed the whole thing, and of course accused his mother of stalking them. Ms. Goodfellow’s quick departure from the scene without allowing Mr. Quenville to speak to her only reinforced Zachary’s belief that he was being stalked by his mother, and Mr. Quenville’s belief that there were legitimate reasons for Zachary to be growingly angry towards his mother and Mr. Gil.

[32] That same day, being December 10, 2015, Ms. Goodfellow received a letter from Mr. Quenville’s counsel suggesting that Zachary spend the next week with his father in order to allow for a “cooling down” of the situation in the face of his growing opposition to spending time with his mother. In fact, this “cooling off” period became permanent, and Zachary never returned to his mother’s care.

Dr. Leonoff’s Assessment

[33] On consent of both parties, in March 2015, an order was made appointing Dr. Leonoff to conduct a custody and access assessment with regards to the children. On February 16, 2016, he released his lengthy assessment report. He arrived at the following conclusions with regards to Ms. Goodfellow:

Ms. Goodfellow is beleaguered at this point. She feels helpless to control what seems like an unraveling of her family with Mr. Quenville. She has strong needs for emotional closeness and security. These needs stem from childhood privations and violations, which were substantial.

Indeed, Ms. Goodfellow’s narrative makes clear that she perceived the union with Mr. Quenville as a promise broken, belittling and rejecting, much as she saw her childhood. There is no doubt that she would be very sensitive to criticism and rejection in any case but a relationship in which mistrust predominated would be doomed in her case. […] Moreover, it would almost certainly be experienced as traumatic, which likely explains her deep fear of intrusion, need to establish and reinforce inviolable boundaries (hence, the focus on no trespassing) and identification of Mr. Quenville with her abusive and rejecting parents.

[…] In this regard, she perceived herself as a victim of an accrual, bullying and insensitive husband. Clearly, this repeated a painful and harmful part of her past.

She cares deeply for her sons and is trying very hard to solve the conundrum with Zachary. My impression in respect to Zach is that she vacillates between softness and caring for him as his mother and underlying hurt and immobilizing reactivity in the face of her son’s rejection and abandonment. […] Her struggle with Zachary merges with her struggle with her ex-husband and tends to pit the two of them against her.

My overall impression was of a thoughtful, curious and intelligent woman who feels besieged and overwhelmed. She needs help to separate the various strands of her strong emotional reactions so that she can act more clearly towards solving these complex problems. It is vital for her to have a safe and supportive family environment in which to maximize her obvious high potential, unfortunately, her misalliance with Mr. Quenville both during and after the union has intensified her anguish.

[34] With regards to Mr. Quenville, Dr. Leonoff had the following things to say:

Mr. Quenville’s fears regarding the loss of connection with his sons came to the fore immediately when he spoke of reservations and concerns regarding the legal system and how he would fare in the assessment. […] His fears have been amplified in the divorce. Thus, he works very hard on keeping his alliance with Zachary and Jacob robust. This can, however, conflate with his strong need for approval and to be above reproach, which was apparent on the psychological testing and reinforced in our interviews. In this regard, I found him to be a very “Catholic” man with an abundant sense of wanting to do right as a person and as a parent. This can create a moral dynamic in which he fends off criticism in order to maintain his sense of virtue.

We did discuss his tendency to speak through the perspective of the ideal in which he strives to be “super dad” to his sons.

Despite these issues, Mr. Quenville is very much the dedicated, loving father he describes. He is a friendly, engaging man who is clearly a committed parent.

[35] Dr. Leonoff did not believe that Mr. Quenville was the “predator” that the mother and Mr. Gil depicted, but he was of the view that Mr. Quenville could find it hard to know when to draw a line and set proper boundaries for his boys. It was clear to him that Mr. Quenville did not welcome Zachary’s refusal to visit his mother but that he did not know what to do about it if his son remained resistant.

[36] At the time of this assessment, Jacob was 10 years old. Dr. Leonoff’s own impressions of Jacob as a child very much echo his parents’ testimony at trial. Jacob is a very sensitive, creative and intelligent child who is unfortunately burdened by dyslexia. He adores his little sister, Mia, with whom he shares a very special and close bond. According to Dr. Leonoff, it was very clear during his interviews with Jacob that his goal was to express himself rather than promoting either of his parents’ narratives. It was apparent that he struggled to understand the familial forces that swirled around him. He perceived the conflict between Zachary and his mother to be caused in large part by the presence of Mr. Gil, whom he linked to Zachary’s discomfort in his mother’s home.

[37] With regards to his own experience of the conflict between his parents, Jacob expressed feeling like someone “was always looking at him”, and that he “was in the middle.” He showed significant reservations about Mr. Gil, indicating his feeling that he and his mother were trying to buy him, and insisting that he did not want Mr. Gil to be even a stepfather to him. From Jacob’s perspective, Mr. Gil was forcing a father role on him and Zachary, and he told Dr. Leonoff that he wished he was not there. Dr. Leonoff concluded:

Jacob is clearly a child caught in several overlapping conflicts including an intense one between his parents and additional conflict created by family blending. […] He finds Mr. Gil’s attestations of affection to be onerous and a threat to his loyalty and link to his dad. He cannot alter his sense of family as including only his mother, dad and brother no matter how much affection he has for his sister. […] Jacob is trying to please both of his parents. Hence, he is cooperative and engaging on one hand and acts like an unhappy captive held back from the real curriculum on the other. It is no wonder that there is hardly any psychological room for Jacob to assimilate a new family reality that would include a stepdad. This would amount to heresy at the moment and cannot even be contemplated, which explains his vocal rejection of what Mr. Gil is offering.

[38] Dr. Leonoff’s conclusions following his meetings with Zachary were even more alarming. While an excellent athlete and high academic achiever, Dr. Leonoff found Zachary to be explosive and unpredictable. He was described as quite argumentative, impulsive and a child who had difficulty relating to his peers in a positive manner. Zachary’s description of his mother was that she had difficulty communicating with him, and that she usually was unable to say much about an event, thinking that it would sort itself out only to use it in the future against him because it was never resolved in the first place. He felt she was distant, and did not make herself very accessible to him. He obviously held a lot of resentment against her. He was very hurt to find his mother’s blog on the internet.

[39] Zachary’s contempt towards Mr. Gil was obvious. He acknowledged to Dr. Leonoff that his bad behavior was intended to demonstrate to Mr. Gil that he could not do what he wanted and that he was not “the big man in the house.” He felt that Mr. Gil was trying to replace his father and that he was trying to erase anything that came from his father’s side. Zachary felt that he could not have his father in his life during the weeks in which he was with his mom.

[40] Dr. Leonoff concluded:

I would conclude that Zachary is a tense young men very much caught in his parents’ maelstrom and having difficulty containing his frustration and mounting aggression. […] He is also empowered by the situation and will use the situation to pursue his own agenda, which is to support his father, deny Mr. Gil a place and to control his mother.

Although clearly intelligent and articulate, Zachary feels that his relationship with his father cannot survive unscathed in his mother’s environment. He feels that he has to choose, which is not what he really wants to do. The focus on Miguel Gil as an unwanted presence and interference underscores Zachary’s feeling that there can be no family that does not include his father directly. In this regard, Zachary is particularly sensitive to his father’s anxieties and serves as a forceful agent opposing Mr. Gil and the unit his mother has chosen with this man. Hence, Zach’s alliance with his father reinforces his father’s position and forms an indissoluble bond between the two in the face of the counter-reality led by Mr. Gil and his mother who not only left his father but who appears, from Zachary’s perspective, to alienate him.

[41] Dr. Leonoff was of the view that Mr. Gil was an important player within this family system, and that he had a significant impact on the dysfunction. For that reason, he interviewed Mr. Gil twice. While he viewed him as a good hearted, sincere and embracing man, Dr. Leonoff was of the view that Mr. Gil had assumed too quickly that he was a stepparent to the boys even before they accorded him this status. Mr. Gil had made it clear that the home he now occupied was his “domain” and that Mr. Quenville was intruding against his will. After he offered resistance on that first Halloween night, which led to the boys treating him thereafter as if he was invisible, Mr. Gil seemed to be forever trying to assert his presence and create a meaningful family identity that would include all members except Mr. Quenville. According to Dr. Leonoff, it is on this score that he experienced consistent refusal from Zachary and Jacob.

[42] In light of these very complex family dynamics, Dr. Leonoff concluded:

Ms. Goodfellow cannot sever Mr. Quenville from her life as she did with her father, but the boys understand the deep antipathy, fear and helplessness she experiences in his presence. It does not sit well with their need for a strong connection with him.

Unfortunately, when Mr. Gil was added to the mix, the family’s misalliance only worsened. He envisioned a new family entity built around Ms. Goodfellow and him. His circle of love that was intended to embrace Zachary and Jacob along with their newly arrived sister pulled the boys to him. They reacted very negatively both because it was very premature and, secondly, because it served as a threat to the boy’s identification with their father. […] If there was to be a tug-of-war then Mr. Quenville won…

In truth, it was never a contest because the boys would necessarily choose their dad and the love pressure from Mr. Gil further propelled them towards him.

Jacob has been less radical than his brother in his reaction but he is no less torn. The level of aggression in the family rose too high and Zachary mouthed his father’s sentiments, which were also his own, and exploited the split between his parents. When his mother insisted that he take the bus, he called his father who sprung into action rather than telling him to work it out with his mom.

It might have been the assessment that pushed Mr. Quenville’s insecurity to new heights. He certainly expressed his fear about the legal process and initially would not even tell me where he worked he was so unnerved. To his credit, however, he quickly adjusted and was open and willing to learn. I am quite certain that Zachary is very much attuned to his father’s feelings and fears and this would partially explain why Zach chose this moment to bolt.

Zachary appears to feel that his father cannot exist in his mother’s space even though she is simply looking for a firm boundary between the two households. On the other hand, Ms. Goodfellow’s fear, deep hostility and mistrust of Mr. Quenville add to the boys’ fears that co-existence is not possible. They perceive her inability to parent with their father as a threat and this was greatly exacerbated when Mr. Gil asserted his own aspiration for a reciprocating and loving blended family.

In the face of the impasse, Zach took it on his shoulders to push his point. As noted above, he is empowered by a huge parental split that nullifies their capacity to work together. […] He turns the tables on his mother and insists on being the parent demanding apologies and accountability. This is not good for Zach and has to be curtailed.

[Mr. Quenville] strives to create mainly positive memories and experiences to build his case for the judgment day on his deathbed where the children tell him whether he succeeded or not. As I have indicated, this limits his capacity to put aside his legacy and deal with his contribution to the overall problem.

Jacob is trying to be a normal child of divorce. His nature and desire is to keep all doors opened and to nurture his link to his sister, Mia. He does not want to follow in his brothers’ footsteps although he also can find the situation intolerable.

The fact that they are 10 and 13-year-old boys, adds to the need to claim their father, which is intensified by a perceived plot to seduce them into a Gil\Goodfellow unit that will devalue their father’s importance.

[43] In the end, it was Dr. Leonoff’s’s view that the mechanism of custody and access could not, in and of itself, solve this very complex issue. In order for the situation to improve, the adults needed to change: Ms. Goodfellow had to start seeing Mr. Quenville more accurately and stop vilifying him; Mr. Quenville had to stop trying to become a perfect father and needed to gain insight into his parenting style, and how it affected the children and Ms. Goodfellow; Mr. Gil needed to better understand his role to the boys as a step-father and allow a relationship with the boys to emerge naturally, on the children’s terms.

[44] In the end, Dr. Leonoff’s recommendations were for the parties to continue to share legal custody of the children, with each party assuming the coordinating role for certain decision-making areas. He also recommended that the parties continue to share their time equally with the children, and that they retain the services of a couple therapist/mediator whose first task would be to reduce Zachary’s unhealthy empowerment and have him return to the access schedule. His 32 paragraph long recommendations also included the appointment of a parenting coordinator, and significant therapy for all family members.

[45] Of particular importance to this Court were the following words of caution made by Dr. Leonoff:

In terms of Zachary, my estimate is that the parents have approximately one year to tighten the family frame, stop their obvious and destructive splitting, and represent a mother-father figure to him that he can use to settle down and be the child of both of them. If this continues much longer, Zachary will be changed.

[…] I do not know whether there is enough insight and capacity to work together as yet in order to close the huge gap between them. Of course, Zachary would not want the gap closed, as he will not voluntarily surrender power. Here is where both parents have to find the resolve to look at themselves and see the risks of their own vulnerabilities. To repeat, Mr. Quenville’s attachment model leaves him too willing to court his son’s favour. His focus on his son’s future judgment of him limits his capacity to deal with them objectively and as part of the family system. Ms. Goodfellow is still too much in the grip of past traumas. Neediness competes with fear, blame and deeper sentiment. This limits her capacity to deal with the here and now issues in as effective a way as possible. The parents need to rise to this occasion or the family will not achieve its obviously high potential.

[46] Unfortunately for Zachary and for Jacob, the adults in this case did not quite rise up to the occasion.

Mr. Quenville

[47] It became quickly clear during Mr. Quenville’s testimony that he still thrives at all times to be, and be seen as, the perfect father by his sons. His inability to be an equal parent post-separation (which fueled his insecurities), coupled with Ms. Goodfellow’s relentless accusations (which led to significant scrutiny by the authorities) resulted in his becoming increasingly fearful of being wrongfully accused of something. In the end, fear was paralyzing him and he became impossible to work with and unable to trust any of the professionals who stepped in to help.

[48] Mr. Quenville had previously discontinued working with Sheilagh MacDonald, a parenting coordinator hired by the parties before Dr. Leonoff’s assessment, as he felt she was biased against him. After receiving Dr. Leonoff’s assessment, Mr. Quenville went through two more parenting coordinators before he finally agreed to work with Ms. Kathryn D’Artois. During an initial intake with Ms. Marianne Cuhaci (potential parenting coordinator), Mr. Quenville insisted on being able to electronically record his meetings with her and, after having been told very clearly that he was not to record the session, Ms. Cuhaci realized that he was in fact recording the intake meeting with his cell phone. As a result, Ms. Cuhaci terminated the intake and refused to work with the family. Mr. Quenville admitted that this was not the first time he recorded meetings without the participants’ consent or knowledge.

[49] Recording meetings was a strategy suggested by his treating psychologist, Dr. Diana Garcia, to assist in managing his attention deficit disorder symptoms, which included a decreased ability to remember or interpret correctly information previously provided. Dr. Garcia, who has been Mr. Quenville’s treating psychologist for the past eight years and who testified at trial, confirmed that the recommendation was made to him to record discussions and conversations (in a workplace setting, for instance) to improve the accuracy of his recollection, to cue his memory, and to avoid forgetting useful and pertinent information. While I find that insuring proper recollection of his discussions with various professionals was one of the reasons for Mr. Quenville’s insistence on recording the sessions, I am of the view that the main reason for his doing so was to protect himself from future wrongful accusations.

[50] The parties also retained Ms. Kelly Savage to provide the specialized family therapy recommended by Dr. Leonoff. Although her retainer was quickly terminated on consent of both parties for reasons not necessarily related to Mr. Quenville’s behavior, the evidence makes it clear that Mr. Quenville had significant reservations with her as a professional, did not trust her and did not cooperate well with her. The same lack of cooperation was clearly shown by Mr. Quenville when scheduling meetings between Jacob and Dr. Cebulski, a psychologist hired by the parties to provide therapy to the children in accordance with by Dr. Leonoff’s recommendations.

[51] Obviously, Mr. Quenville does not come across well. He is afraid, mistrusts everyone, and assumes that everything he says or does will be held against him. This has caused him to be uncooperative and unreasonable at times, and to react in ways that were not always appropriate or helpful in deflating the conflict. He also has little insight into how his own actions and behaviors can have a terrible impact on Ms. Goodfellow. He does not understand that his promotion of children’s right to self-determination is empowering the children in a very unhealthy way, undermining Ms. Goodfellow’s parental authority and weakening her bond with the boys.

[52] While Mr. Quenville’s overreactions, fears and lack of trust may be due to his intrinsic personality traits and belief system, they have also been significantly amplified in my view by the ongoing conflict and litigation as well as by the constant scrutiny he has been subjected to as a result of Ms. Goodfellow’s allegations of improper conduct on his part. Mr. Quenville was accused of being an uninvolved and lessor parent, of domestic abuse including physical violence, of inappropriate sexual behaviors towards the children, of physical abuse towards the children, of stalking Ms. Goodfellow and her partner, and more. While the evidence before me makes it clear that the parties were not fit for each other as a couple, and that their relationship was not a healthy one, I am unable to conclude that any of the accusations made by Ms. Goodfellow against Mr. Quenville as detailed above had any merit whatsoever.

[53] In fact, I found Mr. Quenville to be very genuine in his testimony. Despite his lack of insight and his own limitations, his desire to provide his children with the best care and environment possible and to promote the children’s relationship with their mother is clear. I echo Dr. Leonoff’s conclusion that Mr. Quenville is not the abusive, belligerent and alienating parent that Ms. Goodfellow and her partner depict him to be. The evidence clearly shows that Mr. Quenville did not speak ill of Ms. Goodfellow or of Mr. Gil to the children, although I find as a fact that he, at times, involved them in the conflict. During her testimony, Dr. Garcia described him as a person with an intense personality, but very kind and gentle. She was of the view that Mr. Quenville would never, ever intentionally harm a person or his children. She stated that throughout her involvement with him, he constantly made honest efforts to become a better person and never spoke ill of Ms. Goodfellow or of anybody else, including of Mr. Gil. He showed an honest concern about his sons’ well-being in light of all that was happening, and expressed his desire for the children to be happy and to have a relationship with both parents. He felt a lot of guilt as a result of Zachary’s refusal to see his mother and expressed a lot of empathy towards her for Zachary’s poor treatment of her. He even sought Dr. Garcia’s help in “forcing” Zachary to visit his mother.

[54] While he has undoubtedly been very difficult to work with, and contributed directly by his actions and inaction to the children’s mounting rebellion against their mother and her new partner, I find that Mr. Quenville never intentionally attempted to damage or sever the children’s relationship with their mother. Mr. Quenville is truly saddened by Zachary’s refusal to see his mother.

Ms. Goodfellow

[55] Ms. Goodfellow did not accept the parenting arrangements recommended by Dr. Leonoff well. As was the case in 2011 following the receipt of the OCL’s report, she was of the view that Dr. Leonoff had failed to review all of the important evidence in this case, including several affidavits filed by the parties in the context of this litigation as well as some CAS records. A more comprehensive review of all that materials, she testified, may have shed a different light on Mr. Quenville and resulted in different recommendations. She was of the view that Dr. Leonoff had dismissed her fears that Zach would run away (which he did, she pointed out) and that much of the sessions were wasted on dealing with Zach’s departure as opposed to dealing with the whole family situation.

[56] Despite her feelings about Dr. Leonoff’s assessment, she dutifully took all of the steps recommended by him. She cooperated in finding a parenting coordinator, despite Mr. Quenville’s obstructive behavior in that regard. She cooperated with Dr. Cebulski, hired to provide confidential therapy to the children, in scheduling appointments. With Mr. Gil, she continued to attend therapy sessions to help them understand and manage the challenges of their blended family. She engaged in individual therapy to address the emotional traumas created by her very difficult childhood. She cooperated well with Ms. D’Artois, the parenting coordinator retained by the parties, and followed through with undertakings.

[57] Unfortunately, despite all the therapeutic steps undertaken by Ms. Goodfellow to improve the situation, her testimony demonstrated that they have been insufficient to alter her perception of Mr. Quenville, whom she continues to see as an abuser capable of hurting the children, and whom she holds mainly (if not solely) responsible for her failed relationship with Zachary as well as for Jacob’s present emotional struggles. I find that she has gained very little insight into how her own actions as well as those of her partner may have contributed in significant ways to Zachary becoming alienated from her and to Jacob’s rejection of the new family unit she tried to push upon him.

[58] In her testimony, Ms. Goodfellow recounted all of the events that followed her separation from Mr. Quenville. Despite the insight which she ought to have gained through years of litigation, therapy and professional assessments, she reiterated her allegations of abuse by Mr. Quenville towards her and the children in exactly the same way as she had when she reported those events to the police, the CAS, the OCL and Dr. Leonoff. She continues to be convinced that her perception of those events reflect the reality as she sees it. She continues to be certain that Mr. Quenville badmouths her and Mr. Gil constantly in front of the children, grills them with questions upon their return from their mother’s home, and manipulates them into choosing to live with him instead of her. She is persuaded that the children’s disrespectful comments toward her, angry outbursts and rejection of Mr. Gil as a parental figure are a reflection of their father’s voiced opinion of them, which he shares with the children.

[59] For instance, if Zachary tells Ms. Goodfellow that she is a “f…ing bitch”, it is necessarily because that is the way Mr. Quenville speaks of her in his home. When the children scream at Mr. Gil that “he is not their father” and that “they don’t have to listen to him”, it is inevitably because that is what their father coaches them to say. If the children react badly to being called “Goodfellow’s” and refuse to be part of Ms. Goodfellow’s extended family pictures, it is undoubtedly the result of Mr. Quenville’s alienating efforts. She simply cannot see that there is a very different explanation for the children’s behavior.

[60] There is no evidence whatsoever, other than Ms. Goodfellow’s own allegations reiterated in countless CAS and police reports and repeated by her current partner as if he had been present when they occurred, that Mr. Quenville ever physically abused the mother or the children. Similarly, I find that there is no evidence before me that suggests that Mr. Quenville has ever been sexually inappropriate with the children, as suggested by Ms. Goodfellow to the CAS. These accusations by Ms. Goodfellow against Mr. Quenville, which led to the constant involvement of the authorities, have greatly contributed, in my view, to the children’s loyalty conflict and subsequent alignment with their father.

[61] Further, I find as a fact that Ms. Goodfellow too, at times, involved the children in the conflict and in the litigation. She was quick to report concerns about the father to the CAS and the police, suggesting physical and other abuse by Mr. Quenville with a view, in my opinion, of gaining an advantage in the custody dispute. She showed lack of judgment by posting unflattering information online about her failed relationship with Mr. Quenville (among others), which she ought to have known would not be “private”, contrary to what she asserted during her testimony.

[62] Despite of complete inability to see Mr. Quenville for anything other than a villain, the undisputed evidence makes it clear that in all other aspects Ms. Goodfellow is a highly competent, caring, engaged and involved mother who wants the best for the children. She understands her role as a parent, and looks beyond the challenges of the present moment to favor decisions that will be in the children’s long-term best interests. She loves both of her children and her destroyed relationship with Zachary causes her immense grief and sadness. Her fear to loose Jacob as well is real and palpable.

Mr. Gil

[63] Mr. Gil is a good man. He obviously loves Ms. Goodfellow and desperately wants to form a strong, loving and supporting family unit with her, the two boys, and their young daughter Mia. He is genuinely committed to trying to do what it takes to improve his relationship with the boys, and make things easier for Ms. Goodfellow. This is demonstrated by his commitment to ongoing therapy with Dr. Legault, and by his follow-through on recommendations made.

[64] Unfortunately, this therapeutic assistance came late in the day and significant damage had already been done to the relationship between Mr. Gil and the boys. Instead of being a calm, objective and supporting influence on Ms. Goodfellow after he moved in with her, he rallied to her cause and joined her team against Mr. Quenville. I find that Mr. Gil’s testimony lacked any credibility when it came to discussing Mr. Quenville. For instance, he would describe events that occurred between Ms. Goodfellow and Mr. Quenville as if he had lived those events himself, even when they preceded his romantic relationship with Ms. Goodfellow. His discourse was replete with statements borrowed from Ms. Goodfellow’s own repertory about Mr. Quenville and his testimony was filled with exaggerations (such as suggesting that it took almost 15 minutes for Jacob to get out of the pool as he had gained so much weight – which according to him was caused exclusively by Mr. Quenville’s disastrous food habits). He is absolutely convinced that the children’s rejection of him and unravelling behavior towards their mother is the product of their father’s alienating behavior.

[65] Since Ms. Goodfellow sees Mr. Quenville as a villain, it is not surprising that Mr. Gil sees him through the same lenses. This was a common thread in all of the witnesses called at trial by the mother. However, in his case, I found that Mr. Gil’s perception of Mr. Quenville left absolutely no room for objectivity. As a result, it is not surprising that Mr. Gil has made it clear to both boys (through his words and actions) that Mr. Quenville was an outsider, an “enemy”, and was not welcome in or around “his” family. As an example, on one occasion very recently he reassured Jacob, who was concerned about his father seeing a video of him and Mr. Gil (enjoying themselves) on Mr. Gil’s Facebook account, that he did not have to worry since his father was not “even” one of his friends on Facebook and that in any event he had arranged his settings to ensure that his father could never find him. Mr. Gil does not believe that Mr. Quenville has anything positive to offer to the children at this time.

[66] To his credit, Mr. Gil appears to have gained some important insight over the past two years about what his role should be to the children as a step-parent. The therapeutic sessions that he and Ms. Goodfellow engaged in with Dr. Legault have been very helpful, in my view, in helping them manage the reality of their blended family and the boys’ mounting aggression towards them. These changes in his behavior and interventions with Jacob, and insight gained through these sessions with Dr. Legault, have had a significant impact on Mr. Gil’s relationship with Jacob, and in my view were instrumental in Jacob’s recent willingness to allow a relationship to develop.

Events Following Dr. Leonoff’s Assessment

[67] The relationship between Ms. Goodfellow and Zachary never improved. In fact, it got worse. As stated previously, Zachary never stayed at his mother’s home after December 2015. When visits were arranged, Zachary would refuse to drive anywhere with his mother and insisted that they walk instead. Each time, Zachary would become more disengaged. When Dr. Kelly was retained to work with the family, there was an attempt at an overnight visit with his mother. On their way back from his hockey practice, Zachary went upstairs, grabbed his pack sack, pushed his mother out of the way, and told her he was not staying. He left and returned to his father’s. The police were called by the mother (I assume calling Mr. Quenville was not an option that Ms. Goodfellow felt would be successful), interviewed Zachary, and told the parents that since Zachary was over twelve years of age, they could not force him to go back to his mother’s home if he refused to go.

[68] There were many more attempts to organize visits between Zachary and his mother, most of which were not successful. Ms. Goodfellow continued for a while to attend his hockey games, but when she did, Zachary’s expression would turn nasty and he stop smiling. He would not go to her or even acknowledge her presence. At one point, she became concerned about the impact that Zachary’s behavior would have on Mia, and she refused to allow him to come to her home for visits. This must not have sit well with Zachary. Ms. D’Artois testified that her efforts to try to change Ms. Goodfellow’s stance on this point led to very challenging discussions. There were also a number of visits cancelled by Ms. Goodfellow as a result of family events. In summary, contacts became far and few between.

[69] At some point in May 2016, Jacob made a disclosure to his teacher which led the teacher to report the matter to the CAS. The situation between the parents was increasingly volatile and this must have been obvious to Jacob’s teacher. The reason for the report was that Jacob had indicated to his teacher that his father was putting his finger in his butt crack while playing with him and that he did not like it. A protection worker from the CAS met with Jacob on May 24, 2016. During that meeting, Jacob became tearful. He expressed being extremely confused and exhausted as a result of what was going on with his parents. He told the worker that both parents were putting the other down and that he felt forced to choose between them. He said to her that he loved both parents and did not understand why he had to choose. With regards to the allegation that his father put his finger in his butt crack, he confirmed that this was done while they were playing, as a game, but that he did not like it.

[70] Unsurprisingly, when the worker met with Mr. Quenville to discuss this with him, Mr. Quenville insisted on recording the conversation. He appeared defensive and “a little passive aggressive” towards the Society worker and insisted to know who had reported this to the Society. He believed that he was accused of sexually abusing his son by Ms. Goodfellow. He proposed to video record all interactions with his children in the future to prove that he was appropriate, to which the worker responded that this was “a little excessive.” He was warned about the mounting loyalty conflict that the worker had seen in Jacob and warned of the dangers of requiring the children to choose between their parents. In their interviews with Society workers, both parents accused the other of involving the children in the dispute and of denigrating the other parent in front of the children. It was revealed that Ms. Goodfellow had video recorded statements made by Jacob about his father forcing him to choose between his parents.

[71] While visits between Ms. Goodfellow and Zachary gradually came to a stop, Jacob continued to see each parent on a week-on week-off basis. Both Mr. Gil and Ms. Goodfellow saw a noticeable change of attitude on the part of Jacob once his older brother stopped being present during his mother’s weeks of care. Jacob thoroughly enjoys the time he spends with his little sister Mia, with whom he is very close. Ms. Goodfellow testified that Jacob would often act out upon returning from a week in his father’s care, but that after a few days, he would calm down and become emotionally stable again, enjoying his time with his mother and his little sister. Ms. Goodfellow’s contact with Jacob while he is in his father’s care continued to be challenging. He would be resistant to speaking with her and would often be rude on the phone.

[72] Following an incident that took place between Zachary and his mother on October 20, 2016, and which resulted in Zachary calling the police to complain that his mother had tried to run him over with her car (something that I find, based on the evidence, was a complete fabrication on Zachary’s part), Ms. Goodfellow made the very hard decision to stop trying to force Zachary to maintain contact with her. She asked the parenting coordinator to tell Zachary that she loved him, that she was there for him whenever he wanted to visit or speak with her again. She felt that by continuing to try and force him to have access with her, she was pushing him further away.

[73] At some point in 2016 following the receipt of Dr. Leonoff’s report, the parties hired the services of Dr. Cebulski, a psychologist recommended by Dr. Leonoff to provide the children with confidential therapy to help them cope with their family situation. Zachary sternly refused to meet with Dr. Cebulski. At the beginning, Jacob would angrily refuse to speak to him as well. This lasted for about eight sessions. I find, based on the evidence before me, that Jacob’s resistance was caused in large part by his fear that whatever he would tell Dr. Cebulski would be reported to his parents and others, and lead to more intervention by the CAS, the police, and added pressure from both of his parents.

[74] After one of his earlier sessions with Dr. Cebulski, Jacob had a complete meltdown. When he came back home with his mother, he accused her of trying to take him away from his father and called him a “F… bitch”, mimicking his older brother’s narrative. When she tried to give him a hug to comfort him, he accused his mother of having assaulted him. He was in such a state of distress that Ms. Goodfellow decided to call his former daycare provider, a good friend of hers, to ask that she come pick him up in an attempt to provide him with a safe place in which he could calm down. He ended up spending the night there. The next day, Jacob apologized to his mother for his behavior.

[75] During the 2016 Christmas holidays, Jacob spent a week with his mother. Ms. Goodfellow testified that they had a great time together, spending time with extended family, playing board games and even enjoying a date just the two of them. When he left her after the Christmas break, Jacob appeared to be happy and in great spirits. While at his father’s home, Ms. Goodfellow spoke to Jacob on the phone and he was very rude to her and hung up the phone on her. Over the weekend, she attended one of Jacob’s hockey games during which he hid from his mother and refused to acknowledge his sister Mia. During her midweek access with him, Jacob expressed being extremely mad at her and told his mother that “she should know why.” He apparently called her names and told her that she was a bad mother.

[76] An appointment was scheduled with Dr. Cebulski but Jacob refused to get out of the car and then to see him. After the appointment Jacob had a hockey game which he attended with his mother. Mr. Quenville also attended. After the game, Jacob insisted on leaving with his father instead of his mother. Instead of leaving expeditiously to avoid making things worst, Mr. Quenville stayed at the rink and was in the parking lot when Jacob was departing with his mother. Instead of getting in his mother’s car, Jacob ran to his father and insisted on leaving with him. Instead of explaining firmly to Jacob that this was his mother’s week and that he had to leave with her, Mr. Quenville made matters worse by trying to comfort him and telling him that “he would soon be back with him.”

[77] On or about January 19, 2017, Jacob ran away from his mother’s home. He had just returned from a week at his father’s house. He became belligerent and disrespectful to his mother, accusing her of having threatened to kill the family dog (an accusation that originated with Zachary several years prior, which I find was a complete distortion of the truth, but which resurfaced constantly each time a confrontation between the boys and their mother arose). He insisted on calling his father to pick him up so he could go back to his house. His mother allowed him to call his father but told him that his father could not come to pick him up, as he was to remain with his mother that week. When Jacob called his father, Mr. Quenville once again made matters worse by becoming frustrated by the situation and blaming Ms. Goodfellow for “putting him in the middle of this when she knew that he could not go pick Jacob up.” And, thus, Jacob ran away.

[78] He was located at a friend’s house shortly after having run away, after the police were called by Ms. Goodfellow, and his mother had picked him up. However, Mr. Quenville had been made aware of the situation by the friend’s father and when he attempted to call Ms. Goodfellow to obtain an update, she did not take his calls. Once back at his mother’s home, the police had a private conversation with Jacob. When asked whether he had tried to hurt himself in the past, Jacob answered that he had. Based on this disclosure, the police recommended to Ms. Goodfellow that Jacob be brought to CHEO, which she did. However, she did not notify Mr. Quenville that Jacob was being brought to CHEO. Mr. Quenville says he “had a feeling” that Ms. Goodfellow would bring Jacob to CHEO and he tried to contact her several times that night to obtain information about what was going on with Jacob, but Ms. Goodfellow did not answer. Jacob was seen by medical staff who considered that Jacob was not at risk of harm and he was sent back home a few hours later. When Mr. Quenville later attempted to obtain information from CHEO, he was denied that disclosure by CHEO. He suspected that Ms. Goodfellow might have instructed CHEO staff not to share that information with him and a formal request for Ms. Goodfellow’s consent to the disclosure of CHEO records was made through his lawyer, and was denied by her.

[79] At trial, Ms. Goodfellow justified her refusal on the basis that her consent was not necessary since the parties had joint custody. I do not believe Ms. Goodfellow’s testimony in that regard. I find that Ms. Goodfellow deliberately ignored Mr. Quenville’s calls and text messages that night because she did not want him to show up at the hospital, out of fear that he would make things worse (which was probably a good guess on her part). Similarly, I find that she unreasonably refused to provide her consent to the release of the CHEO records when it was later requested.

[80] As stated earlier, the situation was increasingly conflictual and volatile, and Jacob was continuing to pay the price.

Ms. D’Artois

[81] Ms. Kathryn D’Artois was retained by the parties in April 2016. Her ability to work with this family was delayed as a result of the absence of a new parenting plan having been entered between the parties. The role of a parenting coordinator is to oversee the implementation of a parenting plan, interpret ambiguous provisions, make small amendments to it as situations which fall outside the scope of what the parties contemplated arise, coach and educate the parents about the impact of conflict on children and liaise with other professionals who may be involved with the family. The absence of a parenting plan in this case precluded the work to begin. As a result, Ms. D’Artois recommended that the parties engage in lawyer-assisted mediation first (with her) with a view of putting into place a comprehensive parenting plan.

[82] As he did before, Mr. Quenville requested to be able to record the sessions, which Ms. D’Artois, like her predecessors, refused. While the retainer was received from both parties in early May, neither party had yet signed the parenting coordination contract and so nothing occurred until approximately 3 ½ months later, on or about July 2016. By that time, Mr. Quenville had retained new counsel and this appeared to have revived the parties’ willingness to proceed with parenting coordination. By that time, they had also retained Dr. Kelly Savage who had started to work with the family towards reunifying Zachary with his mother. However, it became quickly evident that Dr. Kelly’s interventions were making matters worse between Zachary and his mother. Thus, Ms. D’Artois’ first task as a parenting coordinator was to deal with Ms. Savage’s involvement with this family and whether or not she should continue to play a role.

[83] At the outset of a meeting with all parties as well as Dr. Kelly, in September 2016 everybody agreed that it was essential that a new family therapist be retained in order to allow the reunification process recommended by Dr. Leonoff to proceed. The parties scheduled a lawyer-assisted mediation to work on a comprehensive parenting plan, using Dr. Leonoff’s recommendations as a baseline.

[84] During that lawyer-assisted mediation with Ms. D’Artois which took place on October 5, 2016, and while the parties did not reach a final agreement on a parenting plan, they agreed to retain the services of Dr. Cebulski to provide the children with individual, confidential therapy. They also agreed to pursue individual therapeutic treatment to address their individual issues in accordance with Dr. Leonoff’s recommendations, and to adjourn the trial in this matter to the next trial list (in May 2017) to give them time to perhaps negotiate a final agreement with the assistance of Ms. D’Artois.

[85] Another lawyer-assisted mediation session took place on November 30, 2016, focused on addressing the sharing of time during the holidays, choosing a school for Jacob who would be entering grade 7 in the fall, the children’s therapy with Dr. Cebulski, as well as additional parenting issues which were creating conflict.

[86] In December 2016, Ms. D’Artois was advised that Mr. Quenville had terminated the services of his lawyer. This created significant concerns on the part of Ms. D’Artois about the potential success of her involvement since very little progress had been made on any issue for a period of eight months, while both parties were represented by experienced counsel.

[87] On January 12, 2017, shortly after the events surrounding Jacob’s emotional meltdown at the hockey rink (related above), Ms. D’Artois received a written request from Ms. Goodfellow’s counsel for an emergency arbitration hearing on the following issues: an award forcing Mr. Quenville to sign the retainer contract with Dr. Cebulski, prohibiting him from attending Jacob’s extracurricular activities during Ms. Goodfellow’s parenting time, prohibiting him from discussing or disclosing any communications about the family law proceeding or the parenting coordination process with the children, and scheduling an arbitration hearing to address Jacob’s registration in school for the 2017/2018 academic year. The next day, Mr. Quenville retained new counsel.

[88] During a phone call which took place on January 20, 2017 between the parties’ counsel and Ms. D’Artois, a timetable was established with regards to the arbitration that would be conducted by her to determine in which school Jacob would be registered for the coming school year, which was becoming a pressing issue. Jacob suffers from dyslexia and struggled in school from a young age. In 2013, he was assessed by Dr. Bolduc who performed a psycho-educational assessment. In his report dated October 13, 2013, he confirmed the diagnosis of dyslexia and concluded that Jacob had learning difficulties and/or disabilities as well as attention deficit challenges. At school, an individual educational plan was already in place for him. After consultation with the parents on or about that time, the school had recommended that Jacob be put in a special class at École élémentaire catholique St-Rémi, in Kanata.

[89] Mr. Quenville disagreed with that recommendation made by Jacob’s school. Having suffered from learning disabilities himself as a child, and having suffered the stigma of being in one of those special education classes, Mr. Quenville felt that Jacob would suffer the same fate, and that it was best for him to stay in a regular class and be provided with additional help outside of school. Ms. Goodfellow, on the other hand, felt that this school was the best choice to ensure Jacob’s long-term academic success. Ultimately, Jacob was put in a special class at St-Rémi.

[90] The evidence makes it clear that Jacob did not like it there. He did not get along with his teachers and he felt that being in a special class made him look “dumb.” Mr. Quenville, who did not support Jacob’s placement in that school (a feeling I find Jacob was well aware of), did not get along with the school staff either; his relationship with the school was strained and he felt that the school staff did not want to work with him. During that time, Mr. Quenville took it upon himself to get extra help for Jacob outside of school during the weeks that he was in his care.

[91] In light of that history, it should not come as a surprise that the choice of school for Jacob as he entered grade 7 was a highly contentious issue between the parents. Jacob, and his father, wanted him to go at Collège catholique Franco-Ouest, which is the school that Zachary is enrolled in and which is closer to Mr. Quenville’s residence, whereas Ms. Goodfellow wanted Jacob to attend École secondaire catholique Paul-Desmarais, which is a school that is closer to Ms. Goodfellow’s residence and which she felt would better address his special needs. The parties, to this day, strongly dispute the nature and extent of Jacob’s learning challenges, the components of his individual education plan and the educational programming that would allow him to be successful in his studies. They both felt that the school of their choice was the one that offered the best resources for Jacob to succeed.

[92] Thus, the need for Ms. D’Artois to arbitrate this issue, which took place in February 2017. At the end of the arbitration process, however, Ms. D’Artois felt that the evidence provided to her by the parents, which consisted of hearsay evidence from third parties who had not provided direct evidence in the case, did not allow her to make an un-appealable arbitration award. She requested to speak to one representative of each school to personally verify some of the information she had obtained from the parties. She also felt that hearing Jacob’s wishes and preferences on this issue was important in the context of her decision, so she asked Dr. Cebulski to canvas the issue with Jacob.

[93] By letter dated March 1, 2017, Dr. Cebulski confirmed that, in no uncertain terms, Jacob had voiced his preference to attend Franco-Ouest. Dr. Cebulski stated that his reasons for preferring that school did not appear to be particularly well-informed, nor were they substantiated with regards to educational benefits. Jacob appeared to be repeating what his brother had been saying to him, suggesting that he had received encouragement from his brother to attend the same school as him. It appeared clear to Dr. Cebulski that Jacob’s choice of school was primarily based on his wish to be with his brother and move closer to living with his father. When their conversation turned to the pros and cons of the school proposed by his mother, Jacob’s demeanor became more negative towards this idea and towards his mother. Dr. Cebulski stated “I would expect that it would be a challenge getting him to accept such a placement.”

[94] In her parenting coordinator’s report dated September 15, 2017, Ms. D’Artois states that, by April 6 (2017), it became abundantly clear that the choice of Jacob’s school was really only one element of a much larger issue: which parent should have custody of Jacob and whether he would have a primary residence. In her view, it made no sense for her to arbitrate the choice of Jacob’s school when the case was listed on the May trial list and the court would be determining all incidents of custody and Jacob’s residential schedule, with the benefit of clinical input from Dr. Leonoff. Therefore, on consent of both parties, Jacob was registered in both schools and the matter was deferred to the trial judge.

[95] When the matter was pushed over to the September 2017 trial list (it did not get reached in May), Ms. Goodfellow tried to have this issue decided in arbitration once again, but at that time, Mr. Quenville took the position that the parenting coordination contract had expired on October 6, 2016. Paragraph 93(4) of the parties’ parenting coordination contract sets out the dates at which the contract is to expire. One of those dates was October 6, 2016, which was three days after the contract was actually signed. This was obviously a typo, but Mr. Quenville relied on that typo to justify his position that the parenting coordinator contract had expired and, as a result, he could not be forced into arbitration.

[96] This was an absurd position for him to take, in light of the fact that he had agreed to participate in arbitration (and actually started the arbitration process), and participated in several lawyer-assisted mediations with Ms. D’Artois in accordance with that contract subsequent to October 6, 2016. I find that Mr. Quenville simply did not wish to proceed with the arbitration of that issue, and used a technical argument to get out of it. Faced with Mr. Quenville’s refusal to proceed with arbitration, and the fast-approaching beginning of the school year, Ms. Goodfellow was forced to capitulate and she agreed to send Jacob to Franco-Ouest. I find that Ms. Goodfellow also realized that forcing Jacob to attend Paul-Desmarais, whether by parental consent or arbitration award, would only push Jacob away from her.

[97] In her report, Ms. D’Artois had the following comments to make about each parent and about Zachary:

Mr. Quenville is a very quiet but insistent gentleman. My consistent observations based on my conversations with him and the opportunities that I had to observe his behavior are that he is completely barricaded into a way of thinking about his children’s right to make decisions about the relationship that they have with each parent in the parenting schedule. He was, throughout my involvement with the family, determined to uphold the children’s right to choose between their parents. He explained very openly the counselling that he had received about attachment theory and how his knowledge of attachment guided his parenting style. His view of attachment theory is worrisome.

I personally saw how empowered Zachary Quenville has become. […] He made it abundantly clear to me that he was not going to permit any adult to influence his decision about his relationship with his mother. […] My meeting with him was disturbing.

My observation of Ms. Goodfellow is that despite the frustration, disappointment and anger that she experiences about the loss of her relationship with Zachary and the risk of her losing Jacob, she continued in therapy, continued to negotiate compromises and followed through with all of her commitments without fail.

[98] Ms. D’Artois was also called to testify at trial, and she provided further observations about her work with this family. When asked how each party approached mediation and arbitration sessions, she stated that there were different issues with both parents: both parents were apprehensive, exhausted and scared about the outcome. Ms. Goodfellow made it clear that she could not be in the same room as Mr. Quenville as it made her unable to focus and think. Ms. D’Artois had very challenging conversations with her at times, but overall she felt that Ms. Goodfellow had a better capacity to understand and to gain insight in the situation.

[99] On the other hand Mr. Quenville, according to Ms. D’Artois, lacked insight into his own behaviour, held very strong beliefs and if he received information which conflicted with his beliefs, he would just shut it out and disregard it. She observed Mr. Quenville to be very polite, gentle and respectful, but very firm and tenacious. She was of the view that this was not deliberate on his part, that he was simply unable to see things differently, that he lacked the capacity to do so. She reiterated her concerns about Mr. Quenville being a friend to his children as opposed to a parent. She also stated that it was very difficult for her to get Mr. Quenville to agree to do anything, hard on his belief that the children should be allowed to decide for themselves, and then once he had agreed, it was a challenge to get him to follow-through.

Dr. Leonoff’s Update

[100] As the parties were heading to trial, and Dr. Leonoff’s assessment was already some 17 months old, the parties sought an update from him in the summer of 2017, immediately before trial. Given the time constraints, Dr. Leonoff did not have the opportunity to meet again with the children, but he met with each party and spoke with Dr. Cebulski and Ms. D’Artois.

[101] By that time, Zachary had not been in his mother’s care for a year and a half. Dr. Leonoff recognized that his recommendations had not permitted to move the family forward or to lower tensions and toxic dynamics. He was of the view that Mr. Quenville had not managed this post-divorce particularly well. He stated:

He worries about being blamed and can appear strategic or uncooperative. He tries to be the ideal parent and pursues the notion of “attachment” as the key to success. […] Moreover, this representation of the ideal also creates a particular type of bond between father and Zachary […] In other words Zachary fits this mold and, in Robert’s mind, confirms the success of his parenting.

The divorce was a shattering experience for Robert. Nonetheless, he never intended to alienate Zachary from his mother. He is sincere when he states repeatedly that he tries every way to convince is stubborn and grudge-holding son to turn a new page. On the other hand, Zach insures that Robert is not alone and, in this regard, he undoes the rupture of divorce. They are joined by attachments and my impression is that this has softened the blow and given Robert an overarching purpose.

[102] Dr. Leonoff echoed the feeling of other third-party professionals involved in this case that Ms. Goodfellow was a warm and cooperative person who worked very well with others and accepted help willingly. He was of the opinion that she did very well with Jacob but “stumbles badly when it comes to the strident, disparaging Zachary.” He further added:

Her own history of an unsupportive, exploitative mother and of a violating, traumatizing father has created an uphill struggle for her. […] In my view, Robert has never understood the extent to which his ex-wife feels deeply unsafe around him and how this has been extended to Zachary. Although she loves Zachary as a mother […] She tells him that he cannot be around Mia and whenever there is an attempt at linkage, it usually backfires out of fear from Tesha’s side and acting out on the part of Zachary.

[…] This reaction on Tesha’s part (her fear of him and of Zachary) perplexes him (Mr. Quenville) because he takes it personally rather than empathizing and helping to create a solid boundary where Tesha can feel secure and unthreatened. As this has not been clear to him, he has not been able to hold his first son accountable for his aggression against his mother even if she is too reactive and sensitive. In this area, despite his stellar accomplishments and good qualities, Zach is out of control.

[103] Despite all the therapy having taken place, Dr. Leonoff recognized that there was still an impasse. He was of the view that “something remains incurable.” According to him, Mr. Quenville needed a life apart from his sons, and Ms. Goodfellow needed to be able to control her fear and to see beyond it. In light of the parties’ demonstrated inability to agree on anything with regards to their children, Dr. Leonoff changed his recommendations slightly to provide Ms. Goodfellow with sole decision-making authority with regards to Jacob, and sole decision-making authority of Zachary to Mr. Quenville.

[104] He further added that even if Jacob would be better served in a special class, in his view he would suffer emotionally and any gains attributable to the specialized placement would be undone by the emotional suffering that would ensue. He recommended that Ms. Goodfellow should make decisions regarding Jacob’s schooling but only following proper consideration of Mr. Quenville’s views and in consultation with a professional with proper expertise and specific knowledge of Jacob.

[105] Dr. Leonoff also testified at trial, which allowed him to provide further explanation of his findings and recommendations. He was of the view that there were important differences between Jacob’s and Zachary’s personalities which led him to believe that Jacob would not necessarily follow the same path as his brother, even though he was exposed to the same conflict, events and circumstances. Dr. Leonoff felt that unlike his brother, Jacob’s coping mechanisms were healthier (he erupts when under excessive stress instead of bottling up). Unlike Zachary, he accepted to see Dr. Cebulski whom he continues to see and which appeared to benefit him. He also showed significant independence by having allowed himself to continue to have a relationship with his mother and with his sister Mia, and by now allowing himself to develop a relationship with Mr. Gil.

[106] In Dr. Leonoff’s view, Jacob’s emotional outbursts since his 2016 assessment were consistent with his continued conflict of loyalty. When the CAS became involved because he disclosed to his teacher that he did not like it when his father put his finger into his butt crack (during play), he realized that he had taken a stand against his father, got scared, and to balance things out, he lashed out at his mother insisting on wanting to live with his father, and ran away.

[107] Dr. Leonoff did not support a change in the residential schedule that would have Jacob spend more time with his mother. He was of the view that this would likely have an opposite result from the one desired: it would likely reinforce Jacob’s need to align with his father out of fear of losing his relationship with him. He was of the view that it was the adults in this family constellation who needed to change, not the residential schedule. If the adults did not step up to the plate, he said, the dysfunction would not end and Jacob would be destroyed.

Decision on Parenting

Material Change in Circumstances

[108] Since this is a motion to change the custody and access provisions of a final order made under the Divorce Act, before making any change to the existing order I must first find that a material change of circumstances has occurred. Section 17(5) of the Divorce Act states:

[109] I do not think it possible to seriously argue that no material change in circumstances has occurred since the making of the final divorce order in 2011, as Mr. Quenville’s counsel argued. Not only did Mr. Quenville felt there were sufficient material changes in circumstances to justify his bringing this motion to change in the first place, there were in fact several material changes in circumstances since that date. They include the arrival in the mother’s life of a new partner and sister, the children’s increasingly negative attitude towards their mother and her partner, Zachary’s decision to live with his father full-time and to cut all contact with his mother, and Jacob’s growing emotional turmoil and resulting outbursts, to name only a few.

[110] In light of all of those changes, I will be making the final orders sought by the parties at the onset of the trial, granting each of them sole custody of one child, and allowing Zachary to live primarily with his father and to have access to his mother in accordance with his wishes and preferences. Also on consent of the parties, several provisions will be added to this final order, as further detailed below.

[111] Given the above material changes in circumstances, I must now determine what residential order is in the best interests of Jacob at this time.

Custody

[112] Before turning to the issue of Jacob’s residential arrangements, I wish to make the following comment with regards to the issue of the parties’ custodial rights towards him. While this issue is not before me since it proceeded on consent, I wish to make it clear that in my view an order granting sole custody of Jacob to his is the best arrangement for him at this time. I feel that such an order is necessary to ensure that the mother does not become disenfranchised from the boys. Giving her sole custody of Jacob is not only going to reduce the ongoing parental conflict by limiting the parties’ need to consult with one another on major decisions pertaining to him, it will allow Ms. Goodfellow to retain power and provide her with a strong representation and her own force in this dysfunctional family dynamic.

Residential Order

[113] I am also of the view that a change in the residential arrangements for Jacob is not going to fix this family’s complex challenges, or reduce the risks associated with Jacob’s conflict of loyalty and the possibility that he may one day choose to cut off one of his parents to shield himself from the ongoing conflict. On the contrary, I fear that imposing on Jacob a residential schedule that would create an imbalance in favor of his mother would only going to push him away in the other direction in an attempt to balance things out, and salvage his relationship with his father and brother. What Jacob needs is for his parents to gain the insight necessary for them to change; change the way they see and treat each other, change the way they communicate and co-parent together, change the way they react to their children’s behavior (and misbehavior), change the way they define themselves as a family post-divorce.

[114] In addition, I am concerned about Ms. Goodfellow’s willingness and ability, at this time, to promote the relationship between Mr. Quenville and Jacob. Ms. Goodfellow and Mr. Gil have made it clear to the children (expressly and/or implicitly) that there was no place for Mr. Quenville in the children’s lives while they were in their mother’s care. The opposite is not a concern to me. I find that Mr. Quenville, despite being growingly difficult to work with and notwithstanding his unhealthy ideals to be the perfect father, has and continues to be prepared to promote Jacob’s relationship with his mother. Ms. Goodfellow, on the other hand, supported a complete severance of all contact between Jacob and his father for a period of six months, to allow him the opportunity “to heal”. When asked whether she thought that cutting contact between Jacob and his father would cause him emotional harm, Ms. Goodfellow responded that she did not think this disruption in Jacob’s relationship with his father would be harmful to him. In her view, the salvation of her relationship to Jacob can only be assured by severing his father’s negative influence on him. In my view, granting Ms. Goodfellow primary residence of Jacob (assuming Jacob would readily accept it) would put Jacob’s meaningful and beneficial relationship with his father and brother at significant risk, if it did not promptly cause him to retaliate against his mother as Zachary did.

[115] I find that there is significant value in Jacob maintaining a meaningful relationship with both of his parents, and that this goal can only be accomplished by giving him an equal opportunity to spend time with each of them. Jacob adores his little sister Mia and he is also very close to his brother with whom he has been raised all his life. It is in his best interest that he be given the chance to continue to develop a relationship with both sides of his family.

[116] This said, I am of the view that there should no longer be a mid-week access visit with the non-residential parent on Wednesdays, and that Jacob should simply share his time on a straight week-on week-off schedule. There are many reasons for this. First, Jacob is now old enough to spend a full week away from each parent. Second, Jacob continues to be caught in a loyalty conflict between his two family units and having a mid-week access visit with the non-residential parent is only intensifying the pressure that he is under when he returns to the residential parent’s home (and siblings). This is supported by Ms. Goodfellow’s testimony during which she confirmed that Jacob is often resistant to seeing her or speaking with her while in his father’s care, and that it often takes a few days for Jacob to settle in her home when he returns from a week at his father’s home. Thirdly, I find that it would be best for Jacob to enjoy a full week of unfettered access with each of his parents, which will provide him with a more stable routine, less transitions between his parents’ homes and reduced possibilities of being caught in conflict.

[117] While Ms. Goodfellow’s concern that history might repeat itself is real and legitimate, the evidence suggests that Jacob is unlikely to follow in his brother’s footsteps, despite his voiced desire to do the same, particularly if the parties gain the insight necessary to effect real change. Despite a handful of more serious meltdowns over the past year or so, Jacob has continued to go to his mother’s home every other week even if his brother no longer did. He has a significant attachment to his little sister and this bond in my view has largely contributed to his continuing to share his time equally with both parents, in spite of his older brother’s decision to bolt. Both Ms. Goodfellow and Mr. Gil have testified that, despite having gone through some really rough waters, the situation with Jacob has improved significantly since Zachary is no longer going to his mother’s home. Not being under his older brother’s constant watchful eye while in his mother’s care has allowed Jacob to enjoy his time with his mother and sister, and to gradually allow for a relationship to develop with Mr. Gil. This is a significant improvement and a clear sign that, if the adults continue to change, Jacob’s behavior will continue to change as well, and his emotional well-being will improve.

[118] But a real change is crucial.

[119] Mr. Quenville does not need help with his parenting; he needs help separating from his children, and he needs to begin that process now. By believing that he needs to stick by Zachary and Jacob at all costs, that this is that the ideal to achieve, Mr. Quenville is promoting his own bond with his children, thereby undermining Ms. Goodfellow’s authority as a parent, and putting enormous pressure on the children which feeds their loyalty conflict. Mr. Quenville needs a life apart from his children. The children need to lose the unequivocal support of their father, who needs to act like a parent instead of a best friend. Mr. Quenville needs to understand that Zachary is self-destroying despite all of his academic and athletic achievements. He also needs to learn how to trust others again, more especially the professionals involved with his family, and he needs to gain some real insight into how his behavior is negatively impacting on Ms. Goodfellow.

[120] Ms. Goodfellow needs to continue with her individual therapy to heal the traumas of her childhood, and to become able to emotionally distinguish Mr. Quenville from the toxic parents of her past. She needs to spend less time being fearful of Mr. Quenville and searching for evidence that will support her belief that he is a villain, a lesser parent and an alienating father. She must allow Jacob to love Mr. Quenville, even when he is in her care, and she must learn to support and promote Jacob’s relationship with his father.

[121] Mr. Gil needs to continue to learn about the role he should play in Jacob’s life, and more importantly he needs to find the strength to show Jacob that it is okay for him to love his father openly, even when he is at his mother’s home. He must also learn to promote Jacob’s relationship with his father, which will go a long way in allowing a strong relationship to form naturally with Jacob.

[122] As a result of all the above, I will vary the parenting provisions of Justice McMunagle’s final divorce order dated January 26, 2011, by making the following parenting order with regards to Zachary and Jacob. Many of the parenting provisions that follow were incorporated in my Final Order at the request and on the consent of the parties. I have identified those provisions with an asterisk (“*”). When there was a disagreement between the parties about the specific language that a particular provision should contain, I decided based on what I felt was in the children’s best interest. It is to be noted that the parties asked me, on consent, to add a police enforcement clause in the Final Order, but I refuse to do so. I am of the view that the authorities have been sufficiently involved in these children’s lives and that the last thing they need is for the police to continue to show up every time they have a meltdown. Further, Zachary is 15 and Jacob is 11, and it is highly unlikely that the police will agree to get involved to force either one of them to go where he does not want to go. The parties must stop trying to have the police and the CAS validate their concerns, which is only doing the children more harm by forcing them to “pick a winning parent.”

Parenting Order

Decision-making

The Applicant, Robert Quenville, shall have sole custody of Zachary Quenville, born August 29, 2002 (“Zachary”). *
Ms. Goodfellow, Tesha Goodfellow, shall have sole custody of Jacob Quenville, born December 12, 2005 (“Jacob”).
The sole custodial parent shall not make a decision about the child under his or her charge without first consulting with the other parent. When there is a disagreement, the sole custodial parent shall have the final say. *
Ms. Goodfellow shall make decisions regarding schooling for Jacob following proper consideration of Mr. Quenville’s views and in consultation with a mental health professional either involved with Jacob or selected due to his/her psycho-educational expertise with specific knowledge of Jacob. Jacob should not be obliged to attend a school or accept an academic placement that he opposes, unless specifically recommended by the mental health professional consulted.
Ms. Goodfellow shall be the first contact for Jacob at Jacob’s school and for all registrations. *
Quenville shall be the first contact for Zachary at Zachary’s school and for all registrations. *

Regular Residential Schedule

Zachary shall have his primary residence with Mr. Quenville. *
When Zachary is ready to have a relationship with his mother, access shall be arranged and expanded on a gradual basis, in order to facilitate the reconciliation. *
Jacob shall share his time equally between his parents, on a week about basis from Friday after school to Friday the next, before school.
With respect to Jacob, only the residential parent at the time shall be permitted to attend extracurricular activities, all sporting events or scheduled health care appointments. *
Upon invitation from Zachary, Ms. Goodfellow shall be permitted to attend his extracurricular activities, sporting events or scheduled health care appointments. *
Either parent may attend school related special events such as graduations, school plays, performances, and award ceremonies for either child. *
The parent with whom Jacob is not residing shall have no standing to give instructions or permissions to Jacob, or otherwise oversee his behavior. This shall be clearly communicated to Jacob by both parties if\when necessary.

Holiday Schedule

The following holiday schedule supersedes the regular residential schedule, and commences immediately. *

Summer Vacation

The parties will have Jacob for summer vacation on a two-week rotation schedule (two weeks on, two weeks off) commencing on the Friday of the week during which school ends (the parent with whom Jacob is to be on that Friday will have him for the first two weeks of the summer). In other words, if Jacob was in Ms. Goodfellow’s care during the last week of school, Mr. Quenville’s first two weeks of summer holiday will start on the Friday of that week. The two week rotation schedule shall end once each party has had two periods of two weeks of summer vacation (for a total of four weeks each).
A week of summer vacation is defined as Friday at 5:00 pm to Friday at 5:00 pm the following week.
Thereafter for the remainder of the summer, the regular schedule shall apply.
The parties shall facilitate the children’s participation in special occasions and family events such as wedding, family reunions, funerals or overseas trips. A one-day event, not including an overnight, shall not require any make-up time and shall be consented to by the residential parent unless there is a legitimate scheduling conflict of comparable importance. A parent wanting the children to participate in a special occasion on the other parent’s scheduled time shall give 10 days’ notice and, if the children’s attendance at the event requires one or more overnight, shall offer equivalent make-up time (which need not be the exact number of hours, but be the equivalent in days\overnight).

Christmas Break

The Christmas break shall be divided into two halves, referred herein as the first half (from after school on the last day of school until 5 p.m. on the day that is the half-point between the last day of school in December and the first day of school in January) and the second half (from 5 p.m. on the day that is the half-point between the last day of school in December and the first day of school in January until the beginning of school on the first day back in school in January), which shall be divided as follows:

a. In even numbered years, Jacob shall spend the first half of the break with Ms. Goodfellow and the second half with Mr. Quenville.

b. In odd numbered years, Jacob shall spend the first half of the break with Mr. Quenville and the second half with Ms. Goodfellow.

c. In the event that Christmas Day occurs on the day that Jacob would be exchanged, Jacob will be exchanged on the following day.

Mr. Quenville shall encourage Zachary to visit his mother over the Christmas holidays during her scheduled parenting time with Jacob. *

March Break

The regular residential schedule will govern March Break. *

Easter

Jacob shall spend Easter weekend from Thursday after school to Tuesday morning with Mr. Quenville in odd numbered years, and in even numbered years, he shall spend the weekend from Thursday after school to Tuesday morning with Ms. Goodfellow. *

Thanksgiving

Jacob shall spend Thanksgiving weekend from Friday after school until Tuesday morning with Ms. Goodfellow in even numbered years, and in odd numbered years, he shall spend the weekend from Friday after school until Tuesday morning with Mr. Quenville. *

All other holidays and long weekends

The regular residential schedule shall prevail for all other holidays and long weekends. *

Special Occasions

If special occasions, extracurricular activities, holidays, excursions or other opportunities become available to Jacob or Zachary, neither of the parents shall unreasonably insist that the foregoing visiting arrangement be adhered to without exception, or that the visiting arrangements shall be strictly limited to the foregoing. On the contrary, both parents shall at all times maintain a reasonable and flexible position regarding the visiting arrangements with the children at all times.
Notwithstanding the above, neither parent will share information about opportunities or special events with the children until he or she has agreement from the other parent regarding the children’s attendance. *
If the children learn about an opportunity or special event from another source or third party, the parent who requires the schedule change will firmly tell the children that the decision has to be made by both parents to change the schedule before it will be permitted. *
Each party shall provide the other with a minimum of 30 days’ notice of an upcoming change of address, including the address of and shall provide the parent with the new telephone number as soon as same is available. *
Where an exchange cannot take place at school, each party will be responsible for dropping the children off at the other party’s home at the start of any access visit. If hockey equipment or other belongings are required by a child from the home of the other parent, the residential parent at the relevant time shall bring the child to the other’s house to pick up those belongings, upon notice to the other party. Only the child shall enter the home to retrieve his items.

Right of First Refusal

If a party or his or her spouse is not available to take Jacob to an extra-curricular activity, the other party shall have the right of first refusal to take him to the activity. If the other party is not available, then the residential parent at the relevant time shall be responsible for making other arrangements, such as asking a friend, family member or teammate, missing the practice, etc.

Travel

Both parents shall be entitled to travel outside of Canada with the children to a country that is a signatory to the Hague Convention on International Child Abduction, without the explicit written consent of the other parent provided such travel takes place during his or her parenting time unless a change in the schedule is agreed to in writing. Countries which are not a signatory shall require consent, and such consent may not be unreasonably withheld. *
Notwithstanding the above paragraph, the travelling parent shall provide a complete itinerary to the non-travelling parent at least 10 days in advance of the travel including contact information on how to reach the children during travel. *
In the event that a parent is travelling without the children, they shall provide the other parent with the dates of travel and an address and telephone number where they can be reached in case of an emergency. *
In the event of overseas travel to a country which requires vaccinations, the parent travelling shall obtain such vaccinations for the children. *

Medical and Dental Care

The custodial parent for each respective child shall make decisions regarding the child’s medical and dental care, in consultation with the professionals and the other parent. *
Each party shall maintain for the benefit of the two children any extended medical and/or dental insurance available to him or her through his or her employment for so long as the children remain dependent and for so long as the benefits remain available to him or her. Each party shall provide proof to the other within one week of the date of the Final Order, and will provide information regarding any change of coverage within one week of such change. *
If permitted by their respective extended benefits insurers, each parent will authorize his/her insurer to allow the other parent to submit claims for the children directly to the insurer and to be reimbursed directly by the insurer. If such authorizations are not permitted by the insurer, each party shall cooperate with the other in making a claim pursuant to the extended health insurance and shall promptly provide the other with any reimbursement received (including copies of the claims/receipts) for costs paid by the other parent. *

Extra-Curricular Activities

The custodial parent for each respective child shall make decisions regarding the child’s extra-curricular activities.

Access to Information

Both parents shall have access to all records and information regarding the children, regardless of custody, including but not limited to education, medical and dental records.
Each parent will assist the other to obtain such information and shall sign any releases necessary to obtaining same. *
Ms. Goodfellow shall keep care and control over Jacob’s:

d. Health cards,

e. Birth certificates,

f. Social insurance number cards,

g. Passports,

and she shall provide copies to Mr. Quenville, and she shall make the originals available to Mr. Quenville when required, who shall return them to her promptly after use. *

Mr. Quenville shall keep care and control over Zachary’s:

h. Health cards,

i. Birth certificates,

j. Social insurance number cards,

k. Passports,

and he shall provide copies to Ms. Goodfellow, and he shall make them available to Ms. Goodfellow when required, who shall return them to him promptly after use. *

Counselling

Both parties shall take the children to individual counselling with Dr. Cebulski and shall participate in counselling with Dr. Cebulski in accordance with his recommendations when and if required. *
Both parties shall encourage Zachary to attend counselling with Dr. Cebulski, but he shall not be forced to attend against his will.
Mr. Quenville shall attend counselling with Dr. Garcia, with Dr. Leonoff acting as a consultant, to help him separate from Zachary enough to start forging his own life apart from the children, and to separate enough to bring Zachary under appropriate self-control in respect to his mother. *
Should Dr. Garcia be unwilling or unable to provide such counselling, or in the event that she is of the view that she does not have the necessary qualifications and/or expertise to provide such counselling, another therapist recommended by Dr. Leonoff shall be retained by Mr. Quenville. A copy of Dr. Leonoff’s report and update as well as a copy of these reasons are to be provided to Dr. Garcia (or other therapist retained by Mr. Quenville for this purpose) by Mr. Quenville.
Mr. Quenville and Ms. Goodfellow shall each continue their individual counselling. *
A copy of Dr. Leonoff’s report and update as well as a copy of these reasons are to be provided to the parties’ respective counselors within 15 days.
Mr. Quenville shall provide Dr. Leonoff with a copy of my reasons within 15 days.
The costs of counselling involving the children not covered by benefits, are deemed a special expense and shall be shared proportionately by the parties.

Communication

The non-residential parent may call Jacob while he is in the other parent’s care on Mondays and Thursdays, for up to fifteen minutes and between the hours of 7 and 8 pm. The residential parent will ensure that Jacob is available to speak to the non-residential parent during those times and, if it is anticipated that he will not be available, the residential parent will notify the other parent and offer an alternate time on that day. At all times, the children shall be free to communicate with the non-residential parent by any means available to him (phone, email, text messages etc.), at any time and for as long as he wants.
Mr. Quenville shall continue to encourage Zachary to have a relationship with his mother, and to facilitate contact whenever contact is requested by Zachary.
When Zachary receives a card, gift or letter from his mother or anyone in his maternal extended family, Mr. Quenville shall encourage Zachary to acknowledge receipt with a thank you to the giver.
Communication with the children shall be private. The residential parent shall not interfere with and obstruct the other parent’s communication with the children. *
If communication is electronic, neither parent shall not be copied or set up an automatic forwarding of all communication between the child and the other parent. *
Neither parent will speak ill of the other parent or anyone in his or her family or household.
Communication between the parties shall be by email or text unless there is an emergency.
The parties shall learn and use the Bill Eddy BIFF method of email communication. *
The children shall not be used as messengers, including for providing support cheques or legal documents. *
The parties shall take all necessary steps to insure that the children do not gain access to these Reasons, Dr. Leonoff’s reports, Ms. D’Artois’ arbitration report or any other documents and\or report provided to the parties by professionals involved with the family and\or the children, unless it is expressly authorized by the professional in question.

[123] While I have no power to impose any order upon Mr. Gil, it is my strong suggestion that he and Ms. Goodfellow continue to attend counselling sessions with Dr. Legault with a view of helping them deal with the challenges of their blended families and to broaden their understanding of behaviors manifested by Jacob as a result of his loyalty conflict. It is also strongly recommended that a copy of Dr. Leonoff’s report and update as well as my reasons be provided to Dr. Legault, as they will inform his therapeutic efforts.

[124] Finally, while the above Parenting Order replaces par. 2 to and including par. 40 of the January 26, 2011 Divorce Order, it specifically does not invalidate or replace par. 67 and 68 of that Order (Parenting Coordination) which remains in full force and effect. More specifically, the parties shall resume working with Ms. D’Artois in parenting coordination should any disagreement arise with regards to the implementation and interpretation of the above Parenting Order. Should Ms. D’Artois be unwilling or unable to continue to provide parenting coordination services to this family, another parenting coordinator shall be retained.

Child Support Order

[125] Ms. Goodfellow is seeking an order adjusting the parties’ (table) child support obligations retroactively to the date of the final divorce order (2011). It is to be noted that in their pleadings, neither party clearly set out their claim for retroactive child support. Mr. Quenville asked for child support to be paid by Ms. Goodfellow for the two children from a date “TBD.” Ms. Goodfellow asked for Mr. Quenville to pay “retroactive child support and his share of s. 7 expenses… to the Respondent in an amount to be determined.” The date from which such retroactive award was to be calculated was not specified by either party.

[126] During closing arguments, I pointed out to the parties that no evidence had been led with regards to the two step analysis (and various factors) required by the Supreme Court of Canada in S.(D.B.) v. G.(S.R.), 2006 SCC 37, 2 S.C.R. 231, to determine retroactive awards of child support. Further, I was not provided with proof of the parties’ income for many of the years in question (I was provided with Ms. Goodfellow’s income tax returns and\or notices of assessment for the years 2013 to 2015, and with Mr. Quenville’s income tax returns and\or notices of assessment for the years 2013 and 2015). As a result, I decline making any retroactive order for child support.

[127] Mr. Quenville’s motion to change was filed on October 8, 2014 seeking a change in child support. I am therefore prepared to make an order varying the parties’ child support obligations from January 1, 2015 to and including 2017. However, I am faced with an incomplete evidentiary record to make that order. I therefore ask the parties’ counsel to calculate the parties’ respective child support obligation for the relevant years in accordance with the following guidelines:

From January 1, 2015 to and including December 1 2015, the parties shared physical custody of the two children, who resided with each of the parties on a week-on, week-off basis. Based on Mr. Quenville’s 2015 income and Ms. Goodfellow’s 2015 income, each party shall pay to the other party monthly child support for the children as follows:

a. Mr. Quenville shall pay Ms. Goodfellow the Table amount for two children;

b. Ms. Goodfellow shall pay Mr. Quenville the Table amount for two children.

From January 1, 2016 to and including December 1, 2016, Zachary had his primary residence with Mr. Quenville and the parties shared physical custody of Jacob, who resided with each of the parties on a week-on, week-off basis. Based on Mr. Quenville’s 2016 income and Ms. Goodfellow’s 2016 income, each party shall pay to the other party monthly child support for the children as follows:

a. Mr. Quenville shall pay Ms. Goodfellow the Table amount for one child (Jacob);

b. Ms. Goodfellow shall pay Mr. Quenville the Table amount for two children (Zachary and Jacob).

From January 1, 2017 to and including November 1, 2017, Zachary had his primary residence with Mr. Quenville and the parties shared physical custody of Jacob, who resided with each of the parties on a week-on, week-off basis. Based on Mr. Quenville’s 2017 income and Ms. Goodfellow’s 2017 income, each party shall pay to the other party monthly child support for the children as follows:

a. Mr. Quenville shall pay Ms. Goodfellow the Table amount for one child (Jacob);

b. Ms. Goodfellow shall pay Mr. Quenville the Table amount for two children (Zachary and Jacob);

which amounts shall remain payable every month thereafter until varied by a further court order or agreement of the parties.

Each party shall be responsible for the costs and s. 7 expenses of his or her respective custodial child, with the exception of extracurricular activities that a parent registers the child for during his or her time only. *
If a parent chooses to incur costs that they are not responsible for, that parent is doing so at his or her own expense and cannot request a partial/full refund from the other parent. *
With respect to post-secondary education expenses, the amount of each parent’s contribution shall be at the sole discretion of each parent. *
Child support ends for each child when:

a. the child ceases to be a "child" as defined in the Divorce Act;

b. the child no longer resides with the custodial parent, ("resides" includes the child living away from home for school, summer employment or vacation);

c. the child turns 18, unless he or she is unable to become self-supporting due to illness, disability, education or other cause;

d. the child becomes self-supporting;

e. the child obtains one post-secondary degree or diploma;

f. the child turns 22 years of age;

g. the child marries;

h. the child dies; or

i. a party dies, provided that the security in the section of this Agreement entitled "Life Insurance" is in place at the time of death. *

When an event ending child support occurs, the custodial parent will immediately notify the other parent and the FRO in writing. If he or she does not notify the other parent and the FRO, and the other parent must end or vary the support obligation by court action, he or she will reimburse that parent for any overpayment of support, for all his or her legal costs and out-of-pocket expenses and damages. *

Life Insurance

Each party shall maintain a life insurance policy in the amount of $250,000 naming the other party as the irrevocable beneficiary in trust for the children until the youngest child turns 18 years of age. *
In the event that such policy is not in place at the time of death, the obligation shall constitute a first charge against the estate of the deceased. *
Each party shall provide proof of the policy and the irrevocable designation within ten days of the date of the Final Order. *
Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued. *

Additional Orders

[128] I shall remain seized of this matter for one year to provide post-trial case management. This may be extended at the request of the parties and/or at my discretion. Should I become unable to act for whatever reason, another judge shall be appointed to replace me by the local administrative judge.

[129] Counsel shall take out this Order promptly. The first case management conference with me shall occur within 30 days to ensure the parties have complied as ordered above. This case management conference may proceed by way of teleconference, which may be arranged through the trial coordination office.

Costs

[130] In the event that the parties are unable to agree on costs, I will accept brief written submissions from Mr. Quenville within 20 days, followed by brief written submissions from Ms. Goodfellow within 20 days thereafter. Such submissions shall not exceed three pages (excluding Bills of Costs and offers to settle). Mr. Quenville shall have the right to provide the court with a brief reply, if necessary, not exceeding one page.

[131] It should be noted that, unless either party has compelling reasons to seek costs (such as advantageous Offers to Settle or unreasonableness of a party’s behavior that I am not already aware of), I am not inclined to make any order as to costs in this matter based on Mr. Quenville’s perceived success. The issue before me was a complex one and was undoubtedly very important to both parties. I have also found, regardless of success in the outcome, that both parties significantly contributed, in their own way, to the challenging family dynamic which led to this matter being brought to trial. They both behaved unreasonably at times. As a result, I would not make any order as to costs based solely on the perceived success of a party unless there are additional reasons that would justify an order for costs.

Madam Justice Julie Audet

Released: November 2, 2017

CITATION: Quenville v. Goodfellow, 2017 ONSC 6549

COURT FILE NO.: FC-08-1212-1

DATE: 201711102

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT QUENVILLE

Applicant

– and –

TESHA GOODFELLOW

Respondent

REASONS FOR decision

Audet J.

Released: November 2, 2017

Quenville v. Goodfellow, 2017 ONSC 6549

Case Summary

Introduction

The Issues Before the Court and the Position of the Parties

Custody and Access: The Legal Framework

Background Facts and First Court Proceeding

Events that Prompted the Current Motion to Change

Dr. Leonoff’s Assessment

Events Following Dr. Leonoff’s Assessment

Dr. Leonoff’s Update

Decision on Parenting

Parenting Order

Additional Orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Legal Tests 1

Legislation 2