COURT FILE NO.: FC-12-3056 DATE: 20180719 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

N.H. Applicant – and – J. H. Respondent

Counsel: Brian Ludmer, for the Applicant Richard P. Bowles, for the Respondent

HEARD: March 23 and June 5, 2018

REASONS FOR DECISION

AUDET J.

[1] This is a motion by the respondent mother (“the mother”) for an order suspending the operation of the final order of Justice Mackinnon dated August 15, 2017 (“the Parenting Order”), which requires that the parties’ thirteen year old daughter (almost 14) spend alternating weeks in the care of the applicant father (“the father”).

[2] The father brings a cross-motion by virtue of which he seeks the dismissal of the mother’s motion, as well as various orders ensuring compliance with the Parenting Order by the mother.

History of These Proceedings

[3] I have described the very lengthy history of this proceeding in two prior interim decisions (N.H. v. J.H., 2018 ONSC 2266 and N.H. v. J.H., 2018 ONSC 2658). I will not repeat it at length here. Suffice it to say, this has been a very long and protracted high conflict litigation related to the parenting of two children, A.K.H. (now 13, will be 14 on July 22) and A.S.H. (11). These children were seven and five years old at the time of their parents’ separation. They have been caught in their parents’ high conflict litigation for seven long years, which included a 35 day trial held over several months before Justice Mackinnon in 2017, along with countless motions, judicial conferences, police interventions, Children’s Aid Society (“CAS”) investigations, ongoing assessments, and so on.

[4] Dr. Arthur Leonoff, who was retained by the parties to perform a parenting assessment during the course of the original proceeding, produced a total of seven update reports during the six years of litigation which led to the lengthy trial before Justice Mackinnon. In each and every one of those reports, Dr. Leonoff warned the parties about their children’s mounting distress, anxiety and emotional harm as a result of their ongoing conflict, and what they could do to effect permanent change, and protect their children.

[5] A.K.H., in particular, suffered significantly from her parents’ incessant conflict. She began to show ritualistic behaviours that were the onset of what was subsequently diagnosed as an obsessive-compulsive disorder. During the trial, A.K.H. required medical attention as a result of a meltdown and anxiety attack; she was taken to the hospital by the Ottawa police who was acting under s. 17 of the Mental Health Act, R.S.O. 1990, c. M.7; she ceased contact with her mother while a child protection investigation was conducted with regards to alleged physical harm having been caused to her by her mother; then she ceased contact with her father while a child protection investigation was conducted with regards to alleged physical harm caused to her by her father. By April 2017, right in the middle of trial, A.K.H. had packed a bag which she had hidden in a bush close to her school, so as to be prepared for the day she might have to run away from both her parents’ homes. She told the CAS around that time that she did not feel safe with either of her parents, and expressed the wish to go into foster care.

[6] By the time Justice Mackinnon’s decision was released, the children (A.K.H. in particular) had been seen, assessed and/or interviewed by more than two dozen therapists, CAS workers, police officers and health professionals over the course of four years.

[7] In the context of her lengthy decision pertaining to parenting matters (N.H. v. J.H., 2017 ONSC 4867), Justice Mackinnon made several findings of facts which are relevant to the motion before me, a summary of which needs to be repeated again here.

[8] She concluded that the mother’s description of the father’s angry outbursts during the marriage was to be preferred over the limited admissions made by the father in his testimony. She found that arguments and verbal abuse pervaded the marriage and that the father did lose his temper and have anger management problems. She found that the father engaged in pushing, shoving and blocking the mother; that the father had assaulted the mother on four different occasions in 2010 and 2011 (by hitting, chocking and pushing the mother to the ground), and that the physical abuse had worsened during the later years of the parties’ marriage. She found that he was not sufficiently able to maintain appropriate emotional control during trying situations, and that he had a long-standing tendency to react to stressful and challenging situations with angry outbursts, some of which had been witnessed by the children during the marriage. She concluded that the father’s view of his responsibility for all these years of litigation was “extraordinarily limited”.

[9] With regards to the mother, the trial judge concluded that she had shown herself unwilling to facilitate contact between the children and their father. For every year starting in 2014, she had unilaterally cancelled access for extended periods of time. Neither the court orders nor the psychologist’s recommendations had resulted in any change in the mother’s belief that she could cancel access if she believed it was the right thing to do. Nothing, including round-the-clock supervision, could convince her that the children could be safe in their father’s home. She found that the mother was not supportive of the children having a relationship with their father. She found her to be over-reactive and hyper-vigilant, and concluded that her fear and unshakable belief that he was an unacceptable parent were such that she had interrupted access time and time again when she should not have. She was found in contempt of court on several counts, including for having failed to provide access to the father as required, and by failing to do all such things she was required to do to facilitate access.

[10] The trial judge found that both parents brought the children into the parental dispute in ways that ended up denigrating the other parent. She found that they both had detailed conversations with the children about the ongoing litigation, and that they both engaged in interrogating the children following visits with the other parents. She found that they both continued to behave this way all the way up to the end of the trial.

[11] Justice Mackinnon summarized 4 ½ years of litigation and the 35 day trial at paras. 1 and 2 of her decision in the following way, which is highly relevant for the purpose of the motion that is now before me:

What parenting orders should the court make where the shortcomings of both parents contribute significantly to serious and deteriorating mental health issues for their oldest child? Where the crux of the problem is that neither parent accepts personal responsibility for the years of dysfunction nor for the dear predicament their children are in? …

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

[12] The trial judge found the children to be in need of protection. Had it been open for her to do so, she would have ordered a six-month placement for A.K.H. in a therapeutic foster home with only short supervised access to her parents. She stated at para. 6:

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

[13] In the end, the trial judge made a detailed multi-directional parenting order providing each parent with sole decision making authority with respect to some areas of the children’s care, combined with joint decision making authority over other areas. With regards to timesharing arrangements, she imposed an equal time-sharing arrangement for A.K.H., on a week about basis with a mid-week Wednesday overnight access to the non-residential parent, and granted the mother primary residence of A.S.H., with access to the father every second weekend as well as every Wednesday overnight. The residential order was to be enforced by the police force and facilitated by the CAS.

[14] Justice Mackinnon also made a very detailed therapeutic order requiring both parents to seek individual counselling to deal with their respective issues, and imposed various orders aimed at helping reduce the ongoing conflict. The parents were required to maintain therapeutic sessions between the children and Dr. Harrison, who was to continue to be the children’s confidential counsellor. “Confidential counselling” was defined as including a prohibition of participation in court proceedings with respect to the children. The parents were refrained from communicating with her unless at her specific request, and she was entitled to consult with other professionals providing services to the children as she deemed necessary.

[15] Finally, Dr. Leonoff was appointed to meet with the children on a monthly basis for period of 12 months. The purpose of these sessions was “so that the children can share their experiences of their contact with their parents, outside the context of confidential therapy, and so that Dr. Leonoff may report to the post-trial case management judge if so advised.”

[16] I was appointed as a case management judge for one year.

[17] As stated in previous decisions, the parties have appeared before me numerous times since Justice Mackinnon’s decision was released. This will be my 14th decision (including endorsements) in this matter in less than ten months. Needless to say, the conflict between these parties has not subsided at all.

Events Leading up to this Motion

[18] The equal time-sharing residential arrangements for A.K.H. were implemented following Justice Mackinnon’s decision, not without problems. As a result of many factors, including the never ending conflict between her parents, A.K.H.’s OCD symptoms got worst. School lateness and absenteeism were major problems to the degree that A.K.H.’s school year was threatened.

[19] Following an altercation which took place between A.K.H. and her father on January 12, 2018, A.K.H. refused to return to her father’s care. What transpired during this altercation, as related by A.K.H. herself to Dr. Leonoff, the police, CAS and school staff, was highly disputed by the father. I find as a fact based on the significant corroborating evidence before me, that events took place on that day exactly as related by A.K.H., and as follows.

[20] Before the January 12, 2018 altercation took place between A.K.H. and her father, a progression of negative encounters between A.K.H. and her father had already been reported by her to Dr. Leonoff. Of particular importance is an angry outburst by the father which took place in front of A.K.H. at Dr. Harrison’s office in December 2017. As a result of this incident, Dr. Harrison felt it necessary to prepare a contract to govern the father’s conduct when he brought his daughter for sessions. In her letter December 13, 2017, Dr. Harrison required, among other things that;

• The father pay by cash, cheque or e-transfer (thus avoiding the need for exchanges in the office);
• the father refrain from entering into her office, as she “cannot risk another situation so damaging to A.K.H. occurring in her office”;
• A.K.H.’s privacy be respected. She reminded the father that what A.K.H. discussed with her was confidential, and that while she was free to share any aspect of her sessions with her parents, she should not be required to do so by them.

[21] On January 12, 2018, A.K.H. was in her father’s bedroom, on his bed. The father became upset about his perception of what was being related by A.K.H. to Dr. Harrison, and by the difficulties A.K.H. was having that morning (as all other mornings that week) to get ready for, and go to school. After having tried various ways to get her ready for school, the father “lost it.” He lifted A.K.H. off the bed and she began to fight back physically. She eventually locked herself in the bathroom which led the father to call 911 for assistance. He says that he was told that he had the authority to insist that A.K.H. attend school. Strong on this advice, he proceeded to unlock the bathroom door which caused A.K.H. to close the door on his head. She then ran down the stairs, and when the father followed, he fell down the stairs.

[22] As a result of A.K.H.’s kicking and hitting her father, closing the door on his head and falling down the stairs, he then told her that she was hurting him and that she did not need to do this as he was able to hurt himself on his own. He then started to hit his own head, grabbed a bottle of pills (which turned out to be only multivitamins), and swallowed three or four, creating the impression in front of A.K.H., that he was ingesting pills to harm himself. The pills then spilled onto the floor which caught the interest of the family cat. The father then grabbed the cat by his collar to keep it away from the pills, which caused A.K.H. to believe that her father intended to hurt her cat.

[23] In the end, whether or not the events occurred exactly as related by A.K.H., somewhat differently, or less dramatically, makes no difference. The end result was that from A.K.H.’s perspective, the whole incident was extremely frightening. Her father was unable to keep his emotions in check and allowed himself to make a scene in front of his daughter which caused her significant emotional stress and psychological harm. A.K.H. reported to Dr. Leonoff that “this was the worst ever” in terms of her father’s loss of emotional control.

[24] Following that altercation, A.K.H. refused to return to her father’s care. When she returned to her mother’s home after school on January 12 (which was a Friday), she called Dr. Leonoff to share the events of that morning with him, and expressed her wish to stop access with her father immediately. A.K.H.’s report of the events of that night was sufficiently alarming for Dr. Leonoff to feel the need to report this event to the CAS. He then arranged a telephone call with the father (and his counsel, at the request of the father) on Monday January 15, attempting to diffuse the situation and find temporary solutions in A.K.H.’s best interests. I only found out upon receiving Dr. Leonoff’s first post-trial report, on January 30, 2018, that during that telephone conversation with the father and his counsel, Dr. Leonoff had asked them for a week’s reprieve from the alternating weekly schedule with A.K.H. to allow tensions to diminish. In his report, he says that his first inclination had been to provide some form of containment allowing him to see if he could limit the fallout between A.K.H. and her father. Unfortunately, the father categorically refused. He was of the view that his robust relationship with A.K.H. could resolve any issues.

[25] But it could not. Instead of giving A.K.H. a brief reprieve within which to come to terms with the events that transpired between her and her father, and apologize wholeheartedly for his behaviour that day, the father insisted on a strict adherence to the access schedule which, as will be seen below, further aggravated A.K.H. and caused her significant emotional harm.

[26] On Wednesday, January 17, A.K.H. sought the assistance of her school principal to avoid going to her father’s place that evening. A.K.H.’s disclosure to the school principal caused her to report a complaint to the CAS. As pickup time was approaching, A.K.H. stepped out of the principal’s office and ran away from school. The police was called and A.K.H. was later found to be safe at a close-by library with a friend. She was brought to her mother’s home by the police. Two days later, on Friday, January 19, A.K.H. was supposed to go back to her father’s home after school for her week with him. Instead, she took the bus to her mother’s home and stayed there for the weekend.

[27] On Monday, January 22, A.K.H. once again pleaded with her school principal not to have to go to her father’s home (as it was his residential week with her). She intentionally missed her bus and called the police from the vice principal’s office. The police arrived at school around 6 PM and after speaking with A.K.H., she agreed to leave with her father. According to the school principal, A.K.H. was not happy to do so. She was crying as she left with her father.

[28] It is important to note that by that time, the mother had sought the court’s permission to bring an urgent motion to suspend the father’s access on a temporary basis. As I did not have the benefit of Dr. Leonoff’s input, only the parents’ one-sided, self-serving evidence, I denied the mother’s request for an urgent motion but allowed her to bring her motion in the normal course. Further, I asked Dr. Leonoff to provide the court with an update as to this families’ progress, the recent events and any other matter that he might deem necessary to communicate to the court in the best interests of the children.

[29] My refusal to allow the mother’s request for an urgent motion to proceed appears to have given the father wings in his quest to ensure A.K.H.’s strict adherence to the access schedule. The police had to become involved again on Tuesday, January 23 to ensure A.K.H.’s safe return to her father’s home that night, and she eventually spent the rest of that week in her father’s care. She transitioned back into her mother’s care on Friday, January 26.

[30] On January 30, 2018, I received Dr. Leonoff’s first post-trial report. In this report, Dr. Leonoff provided a summary of his observations of A.K.H. since the trial. He indicated that A.K.H.’s OCD symptoms had worsened as a result of her parents’ ongoing conflict since trial, and expressed the view that A.K.H. was immobilized by severe anxiety. He provided the court with A.K.H.’s detailed account of the events which took place between her and her father on January 12, including the details of the telephone call she made to him that evening, and which prompted him to report the incident to the CAS. He also reported the details of his January 23 session with A.K.H. during which he had a more extensive opportunity to hear her account of those events.

[31] Dr. Leonoff was of the view that it did not matter whether a parent was right or wrong, guilty or innocent. The only thing that mattered was A.K.H.’s mental health and welfare, and solutions needed to be found to help her overcome her debilitating obsessive symptoms. He discussed various intervention options, such as providing the parents with home support from behavioural therapists specialized in treating OCD, but stated that in his view, no therapeutic intervention focussed on the parents would have the effect of diminishing the impact on A.K.H. of the chronic family conflict and dysfunctional dynamic between her parents.

[32] As a result, he expressed the view that any hope of recovery for A.K.H. resided in her ability to get control of her anxiety within her own means. He felt that A.K.H. needed to be provided with an environment where she could acquire those skills without her parents’ toxic dynamic and ongoing conflict interfering with her efforts. He asked the parents to consider having A.K.H. attend a residential treatment facility with expertise in treating children and teens with severe anxiety disorders, including OCD, for a minimum of 30 days, up to 60 days. He was able to locate such a facility in the United States.

[33] Upon receipt of Dr. Leonoff’s report, I requested that the parents confirm their position with regards to his recommendation that A.K.H. be put in a residential treatment facility. They both declined, for different reasons.

[34] A.K.H. was to transition back to her father’s care on Friday, February 2. Once again, she ran away from school and called her mother to be picked up to avoid going to her father’s house. The police were involved again but A.K.H. ended up staying with her mother that weekend. On Monday, February 5, and on Tuesday, February 6, A.K.H. ran away from school before being picked up by her father. The police intervened both times, and on both occasions, A.K.H. was required to go back to her father’s home. She remained there until Friday, February 9.

[35] It is important to mention that by that time, and for several weeks thereafter, the CAS was called repeatedly and had interviewed many of the players involved in these events, including the people who made reports to the Society (school principal, Dr. Leonoff, Dr. Harrison) as well as the parents. Both children were interviewed by Society workers, as well as by various police officers, several times. The entire family was in turmoil, the children were suffering, and A.K.H.’s anxiety was at its highest, prompting even Dr. Harrison to write to the CAS urging it to intervene to protect A.K.H. It did not.

[36] By February 9, 2018, both the police and A.K.H.’s school had advised the parents that they would no longer assist in enforcing the existing residential order, or force 13 year old A.K.H. to comply with its terms. From that point on, A.K.H. consistently refused to go to her father’s home, and she has not seen him since.

Position of the Parties

[37] The mother brings this motion seeking the suspension of Justice Mackinnon’s residential order which requires A.K.H. to spend every other week with her father, as well as alternative Wednesdays. She takes the position that A.K.H.’s wishes and preferences should prevail and that she should not be forced to have contact with her father for as long as she does not feel ready to do so. She continues to be of the view that A.K.H. is at risk of harm while in the care of her father.

[38] The father opposes the motion and seeks the immediate return to the equal time-sharing arrangements in place pursuant to the Parenting Order. He maintains that the January 12th incident between him and A.K.H. did not occur in the way she allegedly described it to others, and that the events were grossly exaggerated by her through coaching by her mother. He alleges that the mother was, during the period leading up to and following the events of January 12, purposefully, maliciously and intentionally sabotaging each and every visit and interaction he was to have with A.K.H., and that she actively manipulated her into terminating her contact with her father.

Analysis

[39] The legal principles applicable to a variation of a parenting order are set out in s. 17 of the Divorce Act, 1985, c. 3 (2nd Supp.):

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.

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.

[40] The test for a “material change”, as confirmed by the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64, 3 S.C.R. 775, is a change that is substantial, continuing and that “if known at the time, would likely have resulted in a different order.” This test was further explained in Dedes v. Dedes, 2015 BCCA 194, where the British Columbia Court of Appeal stated:

As articulated in L.M.P., the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is to prevent parties from re-litigating issues that were already considered and rejected; in such cases an application to vary would amount to an appeal of the original order.

[41] I do not believe that it can reasonably be argued, as did the father, that there is no material change in circumstances supporting a motion to be brought to suspend or otherwise alter the terms of the existing Parenting Order. I find that the altercation between A.K.H. and her father which occurred on January 12, 2018, as well as the events which followed that altercation and the demonstrated ongoing emotional harm caused to A.K.H., constitute material changes in circumstances which, if known at the time of trial, would have likely resulted in a different order.

[42] The only question before me, therefore, is the question as to whether or not access between A.K.H. and her father should be suspended altogether until she chooses to resume her contact with her father, or whether a different residential access order should be made in A.K.H.’s best interests.

Best interests

[43] In assessing what is in A.K.H.’s best interests at this time, I took into consideration all of the factors listed in s. 24 of the Children’s Law Reform Act, R.S.O., 1990, c. C.12, which informed my decision. I am also very mindful of s. 17(9) of the Divorce Act which requires the court to give effect to the principle that a child of the marriage should have as much contact with each parent as is consistent with the best interests of the child.

[44] Another significant factor in the specific facts of this case is A.K.H.’s expressed views and preferences. A child’s views and preferences with regards to decisions affecting him or her, while clearly a factor to be considered since the coming into force of the Children’s Law Reform Act, have in recent years taken a much more prominent role than they ever did in parenting disputes. This is evidenced by the recent changes in the Child, Youth and Family Services Act, S.O. 2017, c. 14, sch. 1, which, while not applicable here, have put a child’s views and wishes at the top of the list of factors to be considered when assessing a child’s best interests. The importance of children’s right to express their views and preferences, and for those to be considered by the court in making decisions affecting them, has been discussed at length in various recent decisions including by Justice Kukurin in Children's Aid Society of Algoma (Elliot Lake) v. P.C.-F., 2017 ONCJ 898, and is further demonstrated by the development in Ontario of the Katelynn's Principle (Ontario Bill 57) and the Voice of the Child’s Reports which are now available as part of the services offered by the Office of the Children’s Lawyer.

The father

[45] I have already found that the events of February 12 occurred as related by A.K.H.. This incident, coupled with the father’s angry outburst in Dr. Harrison’s office in December 2017, his angry behaviour towards the school and Society workers, as reported by them, as well as his overall demeanour under cross-examination in the context of this motion, lead me to the inevitable conclusion that he has made no progress whatsoever in his ability to regulate his emotions since Justice Mackinnon released her lengthy decision in August 2017. He continues to be susceptible to angry outbursts when faced with stressful and challenging situations, and his ability to control his emotional reaction in trying situations continues to be virtually non-existent.

[46] The father has basically been in conflict with virtually all persons involved in these lengthy proceedings (both leading to trial and to this motion) who do not share his views. In particular, he has been very critical of both Dr. Leonoff and Dr. Harrison, accusing them of bias, of impartiality and of having been manipulated by the mother. None of the evidence presented to me supports these allegations. On the contrary, I find that both Dr. Leonoff and Dr. Harrison have tried very hard to remain as impartial as is reasonably possible and unengaged in the parental conflict, focussing at all times strictly on the children’s best interests. This is demonstrated by their unshakable level of engagement towards A.K.H. in particular, despite being subjected to abusive and very aggressive behaviours from the father, as well as serious allegations about their integrity, sense of ethics and professionalism.

[47] Further, the father’s insight and ability to take responsibility for his actions and the consequences thereof are still, as Justice Mackinnon had put it, “extraordinarily limited.” A parent with some insight, finding himself in the same situation, would have recognized his wrongdoing, apologized to his child, and allowed her to remain at the other parent’s home as suggested by Dr. Leonoff to calm down, assimilate, understand and accept, leaving the door open for the relationship to heal. Instead, the father held on to his absolute but irrational belief that he had done nothing wrong, and sternly pursued “his legal right” to have A.K.H. in his care every second week without exception, stopping at nothing to prove his case, disprove A.K.H.’s version of events, and insure strict adherence to the access schedule. While doing so, the father was completely oblivious to A.K.H.’s despair and the significant emotional harm he was causing her.

[48] As a clear example of the father’s complete lack of insight, I find very telling that in the context of these proceedings, the father sought an order forcing A.K.H. to produce her cell phone and other electronic devices for inspection, to prove his allegations that the mother had intentionally sabotaged his visits with her by encouraging her to come to her home after school instead of going to her father’s. The father’s request in that regard, which I denied, showed an astonishing lack of sensitivity for his daughter’s feelings and reasonable need for privacy as a thirteen year old teenager, as well as a disturbing lack of insight as to how this request, if granted by the court, would have impacted his relationship with his daughter.

The mother

[49] Sadly, I come to the same conclusion with respect to the mother. Her evidence in the context of this motion makes it abundantly clear that her views about the father have not changed. She continues to regard him as an abuser, someone who is a real and substantial danger to the children, and from whom the children must be protected. While I do not find, as repeatedly alleged by the father, that the mother was, during the period leading up to and following the events of January 12, purposefully, maliciously or intentionally sabotaging each and every visit and interaction the father was to have with A.K.H., or that she actively manipulated A.K.H. into terminating her contact with her father, I do find that she continues to be incapable of supporting the relationship between the children and their father. Her disdain for the father and unshakable belief that he is an incapable parent make it impossible for her to positively receive the children’s account of their time with their father or to take active steps to show the children that she supports them having a meaningful relationship with him. I get the clear sense that while in the care of their mother, the fact that the children have a father is ignored and avoided at all possible costs, unless an opportunity to critique him for one reason or another arises.

[50] Based on the evidence before me, I find that neither parent has been able to effect the permanent change that Justice Mackinnon had hoped for when crafting her detailed and lengthy parenting and therapeutic order, and which was the last hope for A.K.H. to maintain a meaningful and beneficial relationship with both of her parents. Nothing has proven sufficient to help contain the ongoing parental conflict or to help these parents shift their focus from their dysfunctional relationship and never-ending tug-of-war to their children’s best interests; not Justice Mackinnon’s multi-directional order, not Dr. Leonoff’s skilled and thoughtful assistance and recommendations; not the counselling received by all members of this family; not the clear and loud warnings issued by CAS’ workers, police officers, A.K.H.’s school, or Justice Mackinnon.

Dr. Leonoff

[51] In his January 30, 2018 post-trial report, Dr. Leonoff expressed the view that, unless A.K.H. was completely removed from her parents’ dysfunctional dynamic and conflict, she would make no progress in keeping her anxiety and OCD symptoms in check. When the parents declined his suggestion that A.K.H. be placed in a residential treatment facility, away from the conflict which impeded on her ability to heal, Dr. Leonoff was forced to consider other options.

[52] Dr. Leonoff’s second update report was provided to the court on March 6, 2018. By that time, A.K.H. had ran away from school on numerous occasions, been interviewed by several Society workers, police officers and by her school’s staff. In a seven page long report, Dr. Leonoff provided a detailed account of what the children reported to him during their February 14 and 15, 2018 sessions. A.S.H. reported both positive and upsetting things about his parents, his sister’s behaviour in relation to both parents, and the recent events. He expressed both confusion and embarrassment about how the recent events relating to his sister had impacted upon his own life. A.K.H. discussed with Dr. Leonoff her feelings about the ongoing situation and her current relationship with both parents. Dr. Leonoff provided a detailed account of what A.K.H. shared with him the recent events, about her feelings and about her wishes and preferences in relation to her living arrangements and future contact with her father. At that time, she expressed to Dr. Leonoff not wanting to see her dad.

[53] Based on his meetings with both children, Dr. Leonoff expressed the view that A.K.H.’s refusal to see her father, as well as the events which followed the January 12 altercation between them, was not as much to do with the January 12 incident as to the failure for this family to find an avenue to repair. As he put it, “It is not that there is not “love and peace” in the father’s home […]. Rather, there are intermittent ruptures, which have proven extremely disturbing and destructive to A.K.H.’s mental state and her willingness and capacity to support her father”. The evidence before me overwhelmingly supports that conclusion.

[54] Dr. Leonoff further stated:

Instead of struggling over how emotionally immature and volatile [the father] is or whether [the mother] is aiding and abetting A.K.H. in her resistance, what would happen if, instead, one started from the premise that the children’s views at this point should matter most, as they are the ones whom we are ultimately aiming to protect.

In terms of how this relates to supporting the father’s relationship with his daughter, I feel strongly that this must begin by listening to A.K.H. and giving her a place to stand. Her comments to me that she did not want to stay with her father at this time is based not on her lack of affection for him but the fact that she feels pushed to the same extreme as other family members. If she is given some control, then I am confident that she will find her way back.

[55] Dr. Leonoff expressed the view that A.K.H.’s relationship with her father would not heal until and unless she was believed, and her views were taken into account. He recommended that A.K.H. be allowed to live with her mother without having to transition to her father’s care on a weekly basis, if this is what she chooses for the moment. He recommended that she be allowed to choose to stay with only one of her parents in the future, if she felt she needed reprieve. Were she to cease staying with one of her parents, Dr. Leonoff recommended therapy sessions between A.K.H. and that parent on an ongoing basis. The goal of such therapy would be to address concerns, resolve problems and return to the rotation based on A.K.H.’s consent.

A.K.H.

[56] I find, based on the evidence before me that A.K.H., despite her very significant challenges, is an extremely gifted, bright and intelligent almost-14 year old girl. Her feelings, views and preferences have been expressed to various professionals and persons in authority in a consistent manner over a lengthy period of time. A.K.H. has made her wishes and preferences in relation to her living arrangements and future contact with her father crystal clear. When they were not heard by him, she voted with her feet. At this time, she does not want to have any contact with her dad. While a child’s wishes and preferences are but one factor that the court must take into consideration when assessing best interests, I find in the circumstances of this case that it is the most important and relevant factor, as it is intimately related to A.K.H.’s ability to heal, both physically, psychologically and emotionally.

[57] For the time being, A.K.H. has chosen her mother’s home as the place where she feels most safe, and her mother as the person who is best able to help her overcome her significant challenges. For the time being, A.K.H. does not feel strong enough to continue to be subjected to her father’s loss of emotional control and to her parents’ incessant conflict. While it is clear to me that A.K.H. shares a strong and positive relationship with her father when he is happy and caring and where he is able to maintain self-control over his emotions, the emotional and psychological harm which results from those episodes where he is angry, aggressive and out of control is so damaging that A.K.H. has chosen to sever her contact with him for now in order to self-preserve. How can this court possibly deny her this right?

Conclusions

[58] Based on all of the above, I have decided to respect A.K.H.’s wish to stop seeing her father at this time. I find that it is in her best interests to do so for now. This said, I fully anticipate that there may be a triggering event in the future which makes A.K.H. wish to re-establish contact with her father and even choose to move back with him. It is not hard to foresee that in such circumstances, A.K.H. might decide to cease contact with her mother which will most likely result in further litigation between the parties.

[59] I share Dr. Leonoff’s view that a permanent change in Justice Mackinnon’s parenting order will not end the parental conflict or help reduce the number of appearances before the court. As soon as contact resumes between A.K.H. and her father, I fully anticipate that further motions to reinstate access between them, to increase access or to change the existing Parenting Order will be brought, compelling the parents to probe information out of the children directly or through third parties, along with police and CAS interventions and the filing of countless affidavits replete with damaging accusations.

[60] For this reason, Dr. Leonoff suggested, and I agree with him, that the court needed to find a way of handling these episodes as well as A.K.H.’s anticipated changes of heart about her residential arrangements without the need for further court intervention, if at all possible. He suggested that A.K.H. should be allowed to choose to live with only one of her parents if she needed reprieve without having to transition to the other parent’s care on a weekly basis, if that is what she chooses. In other words, she should not have the choice of modifying the schedule, but she should have the choice of whether or not she follows the rotation.

[61] While I agree with this recommendation, I am concerned about how A.K.H. is to voice her wish to follow the rotation or not (i.e. her wish to remain with only one parent) without her expressed wish being the subject of her parents’ constant interference, probing and questioning, as was the case at trial and in the context of this motion. When Justice Mackinnon appointed Dr. Leonoff to meet with the children on a monthly basis, she wanted them to be able to share their experiences of their contact with their parents “outside the context of confidential therapy”, so that Dr. Leonoff could report to the post-trial case management judge. Even this very thoughtful precaution has proven harmful to the children in this case, as the father sought to access to all of Dr. Leonoff’s files, including un-redacted copies of all of his notes from his meetings with them, for the purpose of scrutinizing and challenging their expressed views and preferences (see my decision in N.H. v. J.H., 2018 ONSC 2658).

[62] I feel that the additional protection of a confidential relationship is necessary to allow A.K.H. to express her wishes and voice her views and preferences without being the subject of further harmful behaviour from her parents. For that very reason, I have decided to make an order appointing the Office of the Children’s Lawyer (OCL) to provide A.K.H. and A.S.H. with legal representation on an ongoing basis. I realize that this is a very unusual request given that by virtue of my order, there may be no further legal proceedings before the court in this case. However, in light of the history of this case, the significant emotional and psychological damage to which these children have already been subjected to, and the significant control I am now giving A.K.H. over her residential arrangements and her ongoing contact with each parent, I feel it is crucial for these children and A.K.H. in particular to have a strong advocate helping them make their wishes and preferences known to their parents and to the court, if necessary, independently and within the confines of a confidential relationship.

Decision

[63] As a result, I make the following order:

1. The provisions of Justice Mackinnon’s August 15, 2017 order requiring the child, A.K.H., to reside with each parent in alternating weeks is hereby suspended.
2. A.K.H. shall be allowed to live with her mother without having to transition to her father’s care on a weekly basis, if this is what A.K.H. chooses.
3. A.K.H. shall continue in the future to have the choice of staying with only one of her parents if she needs reprieve. She shall not have the choice of modifying the residential schedule, but she shall have the choice of whether she follows the week about rotation (including mid-week Wednesday access with the non-residential parent) or not.
4. The parent with whom A.K.H. has ceased to stay may meet with A.K.H. with a therapist recommended by Dr. Leonoff, at the frequency determined by the therapist for the purpose of addressing concerns, resolving problems and returning to the rotation based on A.K.H.’s consent. Such therapy shall only occur if and when recommended by Dr. Leonoff, after having canvassed A.K.H.’s wishes and preferences in that regard.
5. Dr. Leonoff’s mandate, as defined by Justice Mackinnon in her August 15, 2017 Parenting Order, is hereby extended for one more year, subject to his consenting to do so. This can be extended further by written request to me. Dr. Leonoff continues to have the option of writing to the court to make recommendations or to apprise me of developments if he deems it necessary.
6. Dr. Leonoff, and only Dr. Leonoff, is authorized to share this decision (or only part thereof) with A.K.H., should he feel that doing so would be helpful to her healing process. The parties are hereby refrained from discussing the content of my decision with the children, except to advise them of the outcome.
7. I shall remain the post-trial case management judge in this case until further order of the court.
8. Dr. Leonoff is hereby authorized to contact the mental health professionals consulted by the parties following Justice Mackinnon’s August 15, 2017 order, and as ordered by her, to obtain feedback as to whether or not the parents have complied with treatment requirements and as to the status of these therapies.
9. Dr. Leonoff is hereby authorized to consult with A.K.H.’s team of professionals at CHEO Psychiatry as well as with any other health professionals currently involved in her care, including Dr. McConville, for the purpose of ensuring that his input into A.K.H.’s anxiety and OCD treatment is conveyed to them and for him to have all the necessary information to continue to provide A.K.H. and this family with necessary support.
10. The Office of the Children’s Lawyer is hereby appointed to provide the children with ongoing legal representation.
11. Should any of the health professionals described in par. 8 and 9 above raise any objections to these provisions of my order, they may be brought to my attention in writing.

[64] The mother is the successful party in this motion. If the parties are unable to resolve the issue of costs, I will accept her written cost submissions within the next 30 days. The father will then have 30 days to file his responding submissions. The parties’ written submissions shall not exceed five pages (not including Bill of Costs and Offers to Settle). The mother will then have 10 days to file a brief reply, not exceeding two pages, if necessary.

Madam Justice Julie Audet Released: July 19, 2018