Court File and Parties

Court File No.: FS-15-400682 Date: 2018-08-31 Ontario Superior Court of Justice

Between: E.T., Applicant – and – L.D., Respondent

Counsel: Martha McCarthy and Faria Marlatt, for the Applicant L.D., on his own behalf Lorne Glass, for Jewish Family & Child Service of Greater Toronto

Heard: March 26, 2018, April 6, 2018, June 1, 2018 and June 8, 2018

Before: M. D. Faieta J.

Reasons for Decision

[1] Sadly, the tortured history of this proceeding continues to be written.

[2] At its core, it involves three bright children (boys, now 17, 13 and 10) and how they have needlessly suffered largely as a result of the Respondent father’s behaviour following the Applicant mother seeking and obtaining an order for interim child and spousal support that requires the Respondent to pay her slightly more than $27,000 per month in total.

[3] The parties separated in February 2015. In August, 2015, they entered into a Partial Separation Agreement that settled all parenting, property and equalization issues other than child support, spousal support and equalization of a townhouse. The Agreement provided that the parties would have joint custody of their children and equal parenting time.

[4] The Applicant brought a motion for interim child and spousal support in September 2016. In January, 2017, the Respondent was ordered to pay the Applicant the sum of $17,731.00 per month in interim child support and the sum of $9,376.00 in interim spousal support. The Court also ordered that neither party is to discuss this litigation with the children or involve them in any way, or denigrate or disparage the other parent. See E.T. v. L.D., 2017 ONSC 248.

[5] On the day that the above decision was released, the Respondent called the Applicant and said “It’s all over”. The Respondent said that he would make sure that the children knew of the court’s decision and that the decision was “mom’s fault”. Their family mediator, Dr. Howard Irving resigned in February 2017. In a letter, Dr. Irving stated that “Following that [court] decision, there were some significant changes regarding financial matters that impacted both parents and children. The children became quite anxious and stress regarding their future [private school] education plans, where they would be living and their extracurricular activities. This has resulted in a situation where the children are caught in the middle. … This has resulted in a high conflict situation where both parents and the children need help. … Therefore I would strongly recommend that a Parenting Co-ordinator be appointed as soon as possible who has arbitrational authority that can oversee the parenting plan agreement. I would also recommend that both parents and the children be referred to a Family Therapist for counselling”. Philip Epstein, Q.C., attempted to help the parties mediate their differences over a three month period and refused to accept an appointment as Parenting Co-Ordinator. In resigning as mediator, he stated “I find the situation appalling and allowing the children to be used as pawns is not something I want to work with”. In a subsequent letter he stated: “It is clear to me from the meetings and emails that the children are being used as pawns in the struggle. … I tried to make it clear to [Dad], in particular, that I thought that using [private school] as an attempted lever was misdirected and contrary to the children’s best interests … It is entirely clear to me that even if I were to assume the mantle of parenting co-ordinator, my advice and directions would be ignored”. See E.T. v. L.D., 2017 ONSC 4870, paras. 19-26. He was right.

[6] In August, 2017, at the Applicant’s request, I ordered that the parties attend the Families Moving Forward Program with Dr. Barbara Fidler on or before August 15, 2017. The Respondent opposed this motion as he believed that the children had not been alienated from the Applicant despite the disturbing evidence presented: See E.T. v. L.D., 2017 ONSC 4870, paras. 36-43, 53.

[7] The parties attended a judicial mediation before Justice Speigel on August 23, 2017. Amongst other things, the parties agreed: (1) To participate in the intake process for the Families Moving Forward program; (2) To reduce the amount of interim child and spousal support to $3,000 per month (from slightly more than $27,000 per month); (3) the Respondent would be responsible for payment of private school tuition and expenses for the 2017/2018 school year; (4) the parties would re-attend before Justice Speigel on May 22, 2018 or sooner if they had a disagreement about the implementation of the settlement; (5) if the Respondent failed to comply with the settlement or Parenting Plan, then the litigation would revive and the settlement would be inoperative. See E.T. v. L.D., 2018 ONSC 1897, para. 5.

[8] The Respondent failed to comply with the 2017 settlement in many ways – failed to pay $3,000 per month in support, continued to speak negatively about the Applicant to their children, failed to comply with parenting time arrangements: See E.T. v. L.D., 2017 ONSC 4870, paras. 6-14.

[9] The parties and their children did not participate in the Families Moving Forward program as they did not complete the intake process which would have addressed the appropriateness of the program for this family. The intake process was not completed because the children refused to meet with Ms. Linda Popielarczyk. They told the Applicant that they did not need “alienation therapy”. The Respondent told Ms. Popielarczyk that he had strong doubts that his children would attend but suggested that it might be possible to convince them if the sessions were “closed and confidential”. In a letter dated March 8, 2018, she stated: “… there must be two parents prepared to exercise parental authority to ensure the children participate in any therapeutic process intended to support them through a parental divorce that is acrimonious and “high conflict” in nature; absent this, being placed in a position to choose to participate, a child is essentially being left to choose between parents”. Ms. Popielarczyk told the parents that she had contacted the JFCS as she was extremely concerned about the emotional well-being of the three children and contacted the ”. See E.T. v. L.D., 2018 ONSC 1897, paras. 15-16.

[10] On March 15, 2018, I granted an order that, amongst other things, temporarily suspended the Respondent’s access to their three sons (age 16, 13 and 10) was issued on short notice to the Respondent on March 15, 2018, for reasons released March 21, 2018. Because this motion was brought on short notice, a comeback motion was scheduled for March 26, 2018 in order to provide the Respondent with a better opportunity to present his case. See E.T. v. L.D., 2018 ONSC 1897. At paragraph 29, I stated:

Considering the circumstances, it is my view that it is in the children’s best interests to suspend the Respondent’s access to the children and to prohibit the Respondent from attending the Applicant’s home, the children’s school, attending extra-curricular activities and contacting the children. The terms of this Order shall be re-visited on March 26, 2018. The parties shall provide whatever additional evidence they wish. I have asked for Ms. Popielarczyk’s to speak to the views described in her letter and I have also asked for JFCS’s interim views. A full day shall be reserved for the March 26 motion. The question of the suspension of access shall also be re

[11] At the hearing of this motion, the JFCS also advised that it would be undertaking an investigation to determine whether the children are suffering emotional harm and, if not, then to determine if they are at risk of suffering emotional harm, within the meaning of section 37 of the Child and Family Services Act, R.S.O. 1990, c. C.11.

[12] I met with the three children in my office, in the presence of Ms. Cassandra Morris of the JFCS, on March 16, 2018, to explain the revised access terms to them and hear their views. This meeting also provided Ms. Morris with an opportunity to speak with each of the boys.

Motion Heard March 26, 2018

[13] At the return of this motion to determine whether the temporary suspension of access should be extended:

• the Applicant arranged for Ms. Linda Popielarczyk to testify regarding the views expressed in her letter dated March 8, 2018 that the Families Moving Forward program was not appropriate for this family given that the children did not attend the clinical intake session and given that both parents were not prepared to exercise parental authority to ensure the children participate in any therapeutic process
• the Applicant relied on its motion materials provided for the March 15, 2018 motion;
• the Respondent did not deliver any affidavit evidence however he was permitted to testify;

[14] Ms. Popielarczyk testified that the Families Moving Forward program requires the participation of both parents and all children to address a situation where a child resists or refuses a relationship with the other parent or to follow an access schedule as a result of the contributions of one or both parents. Another approach is Family Bridges where a practitioner works with the rejected parent and the children in an intensive way during a “blackout” period, where the favoured parent does not have access to the children, with the objective of restoring contact between the rejected parent and the children.

[15] Ms. Popielarczyk explained that her role during the clinical intake process is to determine the therapeutic needs of the children and their parents. She concluded that the clinical intake process had been frustrated because the children refused to meet with her. Ms. Popielarczyk met with both parents twice. She stated that the Applicant answered her questions. The Applicant indicated that she did not know why the Respondent had not exercised parenting time over Christmas and in January, 2018. The Applicant stated that her interactions with the children was loving and she was somewhat reluctant to “stir the pot” by engaging the children in this program. Ms. Popielarczyk met with the Respondent and asked for his help in determining why the boys were resisting to meet with her and how they could overcome this resistance. She described the Respondent as intense and focussed on explaining the facts of the case from his perspective. focussed on telling his story. She did not have the opportunity to learn from the Respondent about the personalities of each child and each of their relationships with him. During their second meeting, the Respondent indicated that the Families Moving Forward was a “set up” and he believed that its purpose was to reduce his parenting time. She later had a lengthy telephone call with the Respondent. Ms. Popielarczyk could not get a direct answer to her questions about what he said to the children about the program, whether he supported the children’s involvement in the program and why he was not exercising his parenting time on Tuesday evenings. The Respondent felt that the children would not be comfortable in an open, non-confidential forum even though the Respondent indicated that his oldest son wanted to appear in court to tell the truth about his mother.

[16] Given all the circumstances, including information received from the parents and the children’s refusal to meet with her, Ms. Popielarczyk was concerned for the emotional well-being of the children and she shared her concerns with a social worker at Jewish Family and Child Services on March 12, 2018.

[17] Ms. Cassandra Morris of the JFCS provided a letter that, amongst other things, indicated that she had met with the Applicant on March 20, 2018 and obtained signed consents allowing her to speak with UCC, the Respondent’s parents and others. She met with the oldest son on March 23, 2018 and he refused to sign a consent permitting the JFCS to speak with UCC and his paternal grandparents. The Respondent was unable to attend a meeting on March 23, 2018 and that meeting had not yet been rescheduled. Ms. Morris noted that since February 2018 all three boys were spending Tuesdays with their father, rather than their mother, contrary to the existing court ordered schedule. The two youngest sons told Ms. Morris that the oldest son had facilitated this change. The oldest son told Ms. Morris that he made the decision to have the boys spend Tuesdays with their father based on their father’s advice that “if the children spend more time with the [Respondent] than with their mother, she then would not be entitled to half of “their money”, which should be put towards their extracurricular activities and their school tuition”.

[18] The Respondent filed no affidavit evidence. He testified that “virtually everything” said by the Applicant is a lie. He stated that the children stayed with him on Tuesdays because they have had it – they have lived with this situation for years. He states that this a desperate situation for years. They live in a world of make believe. Cluster B personality disorder.

[19] When asked to focus on whether the March 15, 2018 order should be varied, the Respondent focussed on statements in the Application that he characterizes as lies (for instance, she took the children to school, she went on all of his school trips, she took the children to their doctor appointments, etc).

[20] Regarding the Tuesday incidents, the children have chosen to stay with him He states that from the kids perspectives they can’t handle daily life with their mother. The major and consistent issue has been UCC.

[21] Regrettably, the evidence received on this motion, if anything, only further supported the earlier conclusion that it was in the “best interests” of the children to suspend the Respondent’s access.

[22] Pending receipt of the investigation report from the JFCS, I granted the following Order on March 29, 2018:

THIS COURT ORDERS THAT:

1. The access of the children …. to their father is hereby suspended effective immediately until further order of this Court.
2. During the period of suspended access referred to in paragraph 1, above, the Respondent father, …, shall be prohibited from: a. Attending the Applicant Mother’s home at … b. Attending the children’s school, …; c. Attending any of the children’s extra-curricular activities, school events, medical appointment or lessons; and d. Contacting or communicating with the children either directly or indirectly, whether by telephone, cell phone, text message, email, Snapchat, Facebook, Instagram, social media or through any other technological device except for: (1) contact or communication initiated by any of the children with the Respondent father between 8 pm and 9 pm on every Sunday; (2) meeting with [the Middle Son] on April 29, 2018 (being [his] birthday) between 1 pm and 2 pm; e. Contacting or communicating with the children through third parties, or new social media accounts purporting to be from third parties.
3. The Respondent father shall have no direct contact or communication with the Applicant mother. All communication shall be directed through the Applicant mother’s counsel.
4. The Respondent shall deliver any cellphones of the children that are in his possession to the Applicant mother’s counsel at Martha McCarthy & Company LLP, 146 Davenport road, Toronto, Ontario, M5R 1J2, without deleting or altering the contents of the cellphone;
5. During the period of suspended access referred to in paragraph 1, above, the children’s cellphones, iPads, computers, laptops, and any other technological devices will be given to the Applicant mother, through her counsel, even if the Respondent father provided such equipment;
6. The children shall attend at the Court to meet with Justice Faieta on March 29, 2018 at Noon to receive an explanation of the Court Order from the Court.
7. If the Respondent father does not comply with any of the terms of this Order, the Applicant mother shall be permitted to bring a motion on short notice for contempt sanctions, including fines and/or imprisonment, to be imposed against the Respondent father;
8. A long motion for this matter shall be scheduled by the court on five days’ notice to the parties;
9. Costs of the March 15, 2018 attendance, this attendance, including Ms. Popielarczyk’s fees for this attendance, shall be reserved to the hearing of the long motion;
10. The Toronto Police Service, the Ontario Provincial Police, the Royal Canadian Mounted Police and any and all border patrol/control agencies, and the police in the area where the children may be located, are hereby authorized and directed to enforce this Order. Specifically, pursuant to section 36(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, for the purpose of enforcing any of the custody or access provisions of this Order, any police force in an area where the children named in this Order, …, are located is hereby ordered to locate, apprehend and deliver any of the children to the Applicant or any other party or person authorized by the Applicant. For the purposes of locating and apprehending any of the children, a police officer may enter and search any place where he or she has reasonable and probable grounds to believe that any of the children may be, with such assistance and such force as is reasonable in the circumstances.

Motion Heard on April 6, 2018

[23] On Friday, April 6, 2018, the Respondent brought an urgent motion for an Order:

(a) allowing the Respondent access to his oldest son; (b) directing Linda Popielarczyk, Shelly Polak and Barbara Jo Fideler to immediately deliver to the Court and to the parties their entire files, including any reports, in connection with the parties;

[24] The motion was dismissed for the following reasons:

[The Respondent] acknowledges that the request for a copy of the files held by Ms. Popeilarczyk et al. is not an urgent matter.

This motion was made essentially without notice given that it was heard at 3:45 pm today after [the Respondent] contacted the court this morning [to] seek an appointment before me on an urgent basis. The Respondent relies on his unsworn affidavit, dated April 6, 2018, that appends an email from his 16 year old son,…, which states “I am in a tough spot on this [assignment] and it counts for 3 points on my final IB diploma”. [The Respondent] candidly acknowledges that no mention of a need for help, or even any mention of this assignment, was made during his call last Sunday with [the Oldest Son]. He acknowledges that he has told the court that [the Oldest Son] is a 95% average student. The Respondent takes from the email that “[his] education is at risk. This places his future at risk”.

The Respondent’s assessment of [the Oldest Son’s] email is a clear, self-serving exaggeration of the consequence for [the Oldest Son] if the terms of access are not amended to allow [the Respondent] to help his son with his assignment on the Great Depression for his Grade 11 class.

There is no immediate danger to the health or safety of a child (as per Rule 14(12)).

The lack of judgment exhibited by [the Respondent] in bringing this “urgent” motion on a few hours’ notice is remarkable. Motion dismissed. Costs of $1,500.00 shall be paid by [the Respondent] to the Applicant forthwith in respect of this motion. [The Respondent] may not take any further step in this proceeding until the above costs order is paid.

JFCS Report – April 20, 2018

[25] Ms. Cassandra Morris, Child Protection Worker, for the JFCS was assigned to investigate the allegation under section 15 of the Child and Family Services Act received from Ms. Popielarczyk on March 12, 2018 that the children may be in need of protection.

[26] The JFCS prepared the following report, dated April 20, 2008, that, amongst other things, states:

• The JFCS met with the Applicant, the Respondent, the children as well as the professionals involved in the family;
• The family’s risk assessment (in relation to factors associated with abuse and neglect) rated moderate. The JFCS “strongly suspect” that the children are at risk of future emotional harm as the Respondent “… firmly believes that he has been acting in the best interest of the children … by being transparent with them when overtly undermining their mother’s parental authority, explaining the litigation process, and involving them in the conflict without fully comprehending the devastating impact this would have on his children and the family unit.”;
• The concerns that “risk that the child is likely to be emotionally harmed resulting from the child’s exposure to ongoing post-separation caregiver conflict” were verified and, as a result, it was determined that until the family is engaged in therapy, individually and collectively as a family, the JFCS would need to remain involved with the family.
• The JFCS found that the children were in need of protection; the JFCS had ongoing concerns about their exposure to the conflict, their perceptions of the conflict and the stability afforded to them based on parental decisions that are to be made for them;
• The JFCS determined that the children were deemed “safe with intervention” due to the order made on March 15, 2018 that temporarily suspended the Respondent’s access to the children. The JFCS recommended that the Applicant contact the police in the event that the Respondent contact her children.
• The JFCS does not wish to add to the conflict by commencing a protection application under the Child and Family Services Act as it may only exacerbate the conflict – however the JFCS is prepared to do so if the parents’ behaviour does not change

Motion Heard Scheduled for May 11, 2018

[27] The Applicant brought a Notice of Motion, dated April 17, 2018, returnable on May 11, 2018 in relation to certain “preliminary issues” and in relation to other matters, such as an order for temporary sole custody, returnable on June 1, 2018. The June 1, 2018 date was selected as the Respondent indicated by email dated April 16, 2018 that the motion not occur until early June, 2018 given his involvement in a civil action whose trial was to commence on or about April 23, 2018. By email dated April 23, 2018, the Respondent advised the court that he “should have in place my lawyer this week and will then be able to confirm the June 1 date as well as the May 11 date for any preliminary motions.”

[28] I sent the following message to the parties on April 23, 2018:

The reserved dates of May 11, 2018 and June 1, 2018 are what I have available. I suggest to [the Respondent] that he move more quickly in confirming his (prospective) counsel’s availability.

If [the Respondent] intends to seek relief on May 11, 2018, then he shall deliver his Notice of Motion outlining such relief by 4 pm on Monday, April 30, 2018. I will not entertain any motion from [the Respondent] on May 11, 2018 unless he has complied with this direction and my earlier order regarding the payment of costs. …

[29] On May 4, 2018, the Respondent advised by email that the May 11, 2018 motion should be postponed until after further mediation with Madam Justice Speigel on May 22, 2018 was completed. With the Applicant’s consent the May 11, 2018 motion date was vacated.

[30] On May 16, 2018, the Respondent advised by email that he had planned to serve and file his responding material on that day but had a serious family situation the past few days and that he would be serving his materials on the next day.

JFCS Report – May 28, 2018

[31] Ms. Morris, on behalf of the JFCS delivered a further report, dated May 28, 2018. It states:

• On Monday, April 30, 2018, the middle son (13 years old) sent a series of emails to Ms. Morris which stated that things at the Applicant’s home were terrible and that he could not stay health for much longer if this continued. One email stated “She, by herself has done this”; Later that day, Ms. Morris attended at the Applicant’s home to meet with the middle son privately. He stated told Ms. Morris that the only thing that would help him feel better would be seeing the Respondent father regularly;
• The oldest son (16 years old) has also sent several emails to Ms. Morris indicating that he cannot live with his mother full time and that he needs his father;
• The JFCS stated that it had hoped to address the children’s concerns on May 11, 2018 however since the hearing date was vacated at the Respondent’s request, the children’s desire to have increased access to the Respondent was left in a state of uncertainty;
• On May 3, 2018, Ms. Morris and other JFCS representatives met with the Applicant and her counsel. At that time:
  • The Applicant said that the three children did not have contact with the Respondent father for a 7 week period following the 2017 Christmas school break. During this “calm” period the children were affectionate with the Applicant and responsive to her requests – the Applicant felt that the children were okay with not seeing their father as she suspects that they were given “permission” by the Respondent to be with her during this period;
  • The JFCS made several suggestions about how to get the boys into therapy however the Applicant was apprehensive about following through with them as the suggestions had been tried and had not worked.
• On May 4, 2008 the JFCS sent an email to the Applicant and the Respondent recommends that “ALL of the family members, children and parents, engage in counselling/therapy. JFCS believes that it is essential that the parents encourage their children’s participation in therapy commencing without delay as this would be beneficial to the children’s emotional wellbeing and mental health. JFCS is prepared to recommend counsellors to you if required but asks that you connect with a counsellor for the boys immediately”.
• The JFCS has been unable to conduct a visit at the Respondent’s home. He did not respond to two emails sent by the JFCS on May 14,2 018 and May 17, 2018. The JFCS spoke with the Respondent by telephone on May 23, 2018. He told the JFCS that his house was a mess and that the JFCS should contact the following week. He also told the JFCS that its investigation was biased against him;
• The JFCS believes that n one of the family members are engaged in therapy/counselling
• The JFCS made the following recommendations:
  • The children be assigned their own legal representation through the Office of the Children’s Lawyer;
  • The children has regular and consistent access to their father although not to the extent of a 50/50 time sharing arrangement;
  • The Respondent has now provide the children’s belongings, including their sports equipment and uniforms, to the children;
  • JFCS has determined that the children are in need of protection as defined in the Child, Youth and Family Services Act and it would have needed to commence an application except for the fact that the temporary orders provided a measure of safety to the children – nevertheless, the JFCS remains prepared to commence such application if required;

Motion Heard on June 1, 2018

[32] By Notice of Motion dated April 17, 2018, the Applicant, amongst other things, sought a temporary order granting her sole custody of the children and no contact between the children and the Respondent for 90 days from the commencement of the Family Bridges Program.

[33] The Applicant delivered an affidavit, sworn May 25, 2018, that reviewed much of the history of this matter following the mediation held before Justice Speigel in August, 2017. Amongst other things she states:

The introduction of Sunday night phone calls has been completely destabilizing for [Oldest Son] and [Middle Son]. Any progress I am able to make throughout the week to achieve peace and normalcy to their lives is derailed each week after their calls with [the Respondent].

During these calls, the children will speak to their father in hushed voices. They speak to [the Respondent] one at a time, while the others listen. [The Middle Son] ensures that I am not nearby.

While I cannot always hear the content of what is being said, I have notice that the boys do not do much during the calls. I have heard them responding to what sounds like instructions. They boys will be quiet for much of the call and then respond with “yes, that’s what I said” or “yes, I did what you told me”.

After the boys’ first Sunday night call with [the Respondent], [the Middle Son] became incensed for the days following the call. The net night, on Monday April 2, 2018, [the Middle Son] kept me up all night. He came to my room around 10:00 pm, when I had already gone to bed. He was screaming at me, calling me a liar, swearing at me, and shining a flashlight in my eyes to prevent me from sleeping. I tried not to engage and go back to sleep. He continued relentlessly for two hours. He finally went to sleep and in the middle of the night his sugar levels dropped, and he needed me to prepare food for him. I made him some food and was finally able to get him back to be afterwards.

The weekly phone calls appear to undo any positive progress I am able to make with the children and our relationship during their absence of contact with [the Respondent].

The children are very secretive about their communication with their father. [The Respondent] has told the children repeatedly not to give me any access to their phones and to change their passwords regularly. [The Middle Son’s] cellphone has been broken for approximately a month and he will not give it to me to get fixed. He has hidden it from me an says to me that he is afraid I will look at his text messages with his dad. I have suggested that we go together to get it fixed and he can put in the password and give it to the store to fix. He refuses to do so.

I believe that [the Respondent] continues to speak to the children about issues in this litigation during those phone calls and that it re-ignites the children’s anger and distrust and pulls them back into this conflict. I believe that if the phone calls were to be recorded, it would provide some much-needed accountability for [the Respondent] and allow the Court to ensure he is using his time with the children in a child-appropriate and child-focussed manner. Alternatively, these call could be supervised by a professional access supervision organization or by Ms. Morris, our JF&CS case worker.

On May 4, 2018, while [the Middle Son] was at Baseline training for baseball, someone asked him where [the Respondent] was and commented that he hadn’t seen him for a while. [The Middle Son] got a ride home with one of his friend’s parents. When he returned home he was quiet and staring at me. After my mother left my house, he told he was so embarrassed and that this was all my doing. He proceeded to call me a monster, cunt, and said he wished I would move to another country. He said he hates me and does not have a mother. He then started screaming. I upstairs to calm [the Youngest Son] down as his screaming woke [the Youngest Son] up. [The Oldest Son] went down to the kitchen to talk to him. While I was upstairs [the Middle Son] smashed all the bananas and avocados on the floor. He took the dinner food on the counter and threw it all over the kitchen. He poured orange juice all over the kitchen and smashed my kettle among other things. I went down and said I was sorry he was upset and told him that this was not my fault and not my doing. He told me to “clean it up, slave”. He then asked for Cassandra’ telephone number which I gave him.

The children are in need of assistance through this incredibly high conflict litigation. I want the children to have a strong relationship with their father when he can demonstrate that he will not longer force them into being involved in this litigation.

The children still need and love me. The phone calls are confusing and de-stabilizing. While [the Middle Son] routinely causes a scene within 24 hours of the phone call, he spends much of the rest of the week being affectionate towards me. He asks that I put him to bed every night, most nights asking me rub his back until he falls asleep. Some nights he asks if he can set up a “bed” beside me and sleep on the floor beside me.

Even with [the Respondent’s] very limited contact with the children, he still does not use this time in a healthy way. He continues to use this time to speak to the children about the developments in the litigation and encourage their involvement. ...

[34] The Respondent did not appear at the hearing of this motion. Instead, he delivered an affidavit, dated May 31, 2018, by email which was not properly commissioned as the signature of the commissioner is illegible. Amongst other things, this document states:

• He could not obtain counsel to appear on June 1, 2018 despite having known of this date since at least May 4, 2018;
• Ms. Popielarczyk’s report to the JFCS was not made in good faith;
• The Applicant and Ms. Popielarczyk “… have been working covertly together unethically and likely illegally in this case”; Various proceedings are being commenced against Ms. Popielarczyk for her “improper, unethical and illegal conduct in this case”;
• The police are investigating Ms. Popielarczyk’s conduct;
• The College of Social Workers and Social Service Works has encouraged to the Respondent to file a formal complaint
• “… regarding any contact or alienation issues, if anyone would take the time to look at the situation, there is no evidence of a contact issue or alienation but a situation where the children have difficulty dealing daily with issues with their mother who is irrational to them, does things that harms the children and repeatedly lies to them”;

[35] The Applicant delivered a further affidavit, sworn June 1, 2018, which amongst other things states:

• The Applicant continues to be frightened by the Respondent’s behaviour and believes that he is unstable; despite a no contact order granted on March 29, 2018, the Respondent called the Applicant on May 27, 2018 and “began a tirade, screaming and threatening how I better watch out, for what’s going to happen and that it is all coming down the pipe”’;
• The Applicant has been engaged in therapy/counselling to assist her with how to communicate with and assist the children;
• She has been desperately seeking some form of therapy/counselling for the children for over one year; she believes that the Respondent actively discouraged the children to participate in the Families Moving Forward program despite a court order requiring their participation; as a result Families Moving Forward program determined that they could not offer any therapeutic services to the family;
• Without an order for sole custody, the Applicant feels that she will not be in a position to compel the children to attend the appropriate therapy such as the Family Bridges program;
• The Applicant believes that the JFCS’ recommendation to restore some access to the Respondent would cause further harm to the children. She states:

Although the children may be happy to see him, if [the Respondent] were simply granted access with the children again without any strict safeguards or conditions in place, I expect our family’s situation would deteriorate entirely. [The Respondent] has not and does not abide by our parenting plan, or any court order for that matter. He is ungovernable. [The Respondent’s] campaign against me to the children would continue (if not intensify) and we would be back in the same (if not worse) untenable situation we were in which resulted in me bringing my motion of March 15 in the first place. There has been no change since that motion which would result in any positive change to our situation. [The Respondent] is more infuriated and acrimonious than ever. … I feel [middle son] has had the most sever reaction to the access suspension with his father. He vacillates wildly between treating me as his enemy and then as his mother and confidant. When I am his enemy (most often following an interaction with father), I feel he acts impulsively.. . … I understand the children wish to see their father. They love him and he is an important part of their life. … Until he can demonstrate that he will not cause any further emotional damage to the children, I feel obligated to protect them at all costs and do everything I can to ensure they receive the proper therapeutic care.

[36] The Respondent did not appear at the hearing of this motion. It was adjourned to June 8, 2018. My Endorsement states:

Order permitting the Applicant leave to file [an] Amended Application granted.

The Respondent, …, did not appear today.

Motions adjourned to June 8, 2018 at 1:30 pm.

JFCS advises it shall be in contact with [the Respondent] and the children to discuss terms of parenting time to be reinstated. [The Respondent] is encouraged to arrange his affairs to attend on June 8, 2018.

Given [the Respondent’s] outstanding financial obligations to the Applicant as a result of his failure to comply with this Court’s Orders (including child support obligations), I order that the Respondent shall forthwith execute an irrevocable direction to his present (as well as any future) counsel that any proceeds resulting from a settlement or judgment in [… ] CV-09-374829 payable to the Respondent or to any corporation in which he has an interest including …, shall be paid into Court as security for any financial obligations owed by the Respondent to the Applicant. The Respondent shall forthwith notify the Applicant’s counsel immediately upon learning of any settlement or judgment in … [the] litigation described above, by email. [The Respondent] shall pay the proceeds of any settlement or judgment [litigation described above] into court forthwith upon receipt.

Motion Heard on June 8, 2018

[37] The Respondent did not appear at the hearing of this motion.

[38] Mr. Glass advised the court as follows:

• He sent a copy of my Endorsement dated June 1, 2018 to the Respondent by email;
• The Respondent refused to meet with Ms. Morris of the JFCS in his home or anywhere else as he indicated that access should revert to the original parenting plan that provided parenting time on an equal basis;
• The JFCS no longer supports the re-establishment of access between the Respondent and his children until: (1) the JFCS is able to view the Respondent’s home; (2) the Respondent appears before this Court to affirm that he will abide by the conditions of the parenting plan to be imposed by this Court in order to ensure that the Respondent’s behaviour during the period of access will not be more harmful than the beneficial to the children.

[39] Ms. Jacqueline Vanbetlehem provided the following evidence by affidavit and in person regarding the Family Bridges Program:

• She is a member of the Ontario College of Registered Social Workers and a practitioner with the Family Bridges Program;
• She has not met with, or spoken to, any of the parties involved in this matter, or their children;
• Family Bridges “is one option to consider for a family in which a child’s view of a parent and other relatives is unrealistic, the child refuses contact with a parent or shows extreme reluctance to spend time with that parent, and the family needs help adjusting to court orders that place the child in the sole custody of the rejected parent and suspend contact between the child and the other parent until specified conditions are met.”
• The Family Bridges “is not for every family in which children reject a parent. It is not for children whose rejection is reasonable, proportionate to, and warranted by the history of the child’s relationship with the rejected parent or for children whose alienation is not likely to become severe”;
• Led by a team of two professionals, Family Bridges offers an opportunity for the children and the non-favoured parent, in four consecutive days, to begin restoring a positive relationship over four days in a vacation setting. The program teaches children how to think critically and how to maintain balanced, realistic, and compassionate views of both parents. The program also helps children develop skills to resist outside pressures that can lead them to act against their judgment. Parents learn how to sensitively manage their children’s behavior, and the family learns tools to effectively communicate and manage conflicts.
• Standard provisions typically required to ensure the efficacy of the Program include:
  • Temporary sole custody to the non-favoured parent;
  • Placing the children in the residential care of the non-favoured parent until further order of the court;
  • Ordering the family’s participation with the Family Bridges Program;
  • Permitting the non-favoured parent to conceal the location of the intervention from the favoured parent to protect the children and the intervention from intrusion, interruption, and harassment;
  • A 90-day no-contact period for the favoured parent and the children, and with the children and the favoured parent’s friends, relatives, and associates, whose influence is likely to interfere with the children’s progress in effectively repairing the damaged relationship with the non-favoured parent, except as directed by Family Bridges, or the aftercare professional, or any other professional designated by the non-favoured parent or the Court;
• To begin the Family Bridges Program, the parent seeking to commence the Program must fill out an intake from and have an intake meeting with the Program Director, Mr. Randy Rand. Mr. Rand then coordinates the appropriate practitioner to begin working with the family, Depending on the availability of the practitioner, the Program is generally able to be scheduled shortly after the intake process.

[40] The Applicant advised that she seeks temporary sole custody of the child to facilitate their participation in the Family Bridges Program as well as to enrol them for the 2018-2019 school year. Specifically, the Applicant advises that she will pay the tuition for her oldest son’s final year in high school and that she will enrol the other two boys in a public school. This approach makes sense given the stated inability of the parties to pay for all three of their sons to continue to attend a private school.

ANALYSIS

[41] The terms of custody and access turn entirely on “the best interests of the child” and particularly the “child’s needs and circumstances”: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24.

[42] The Respondent continues to disregard this Court’s order that he not disparage the Applicant or discuss this litigation with them. The Respondent demonstrated little effort to set aside the temporary access suspension order following the March 26, 2018 motion as he sought to delay the re-consideration of that order for months so that he could focus on other litigation and/or retain counsel and then did not appear at the motions heard on June 1, 2018 or June 8, 2018.

[43] It is also clear that the Respondent appears incapable of setting aside the enmity that he has for the Applicant for the sake of his children’s well-being. All three children are impacted by this conflict, particular the Middle Son. The Respondent, with only one hour each week of telephone access, takes that limited opportunity to disparage the Applicant. It is also disturbing that the Respondent refused to co-operate with the JFCS’s request to meet at his home and discuss a modified access arrangement.

[44] Given the circumstances, it is my view that the Families Moving Forward program may assist the children to understand and better manage their unfortunate family dynamics.

[45] Accordingly, in my view it is in the children’s best interests to grant the orders sought as modified below:

• The Applicant is granted temporary, sole custody of the three children in accordance with the terms described in paragraph 12 of the Applicant’s notice of motion dated April 17, 2018, until December 10, 2018;
• Any telephone calls between the Respondent and the children be recorded by the Respondent in accordance with the terms described in in paragraph 5 of the Applicant’s notice of motion dated April 17, 2018;
• The parties shall comply with the terms related to the Family Bridges Program in accordance with the terms described in in paragraphs 13-32 of the Applicant’s notice of motion dated April 17, 2018 with the exception that: (1) the reference to “Justice Faieta” in paragraph 29 is replaced by “the Court”; (2) the Applicant and the Respondent shall each pay one-half of the upfront costs associated with the Family Bridges Program within seven days of this Order on the basis that such costs may be re-apportioned upon the hearing of a motion for costs described below;
• Costs in respect of the March 15, 2018, March 26, 2018, June 1, 2018 and June 8, 2018 motions shall be heard in writing. The Applicant shall deliver her costs submissions by September 14, 2018. The Respondent shall deliver his responding costs submissions by September 28, 2018. The Applicant may deliver reply submissions by October 5, 2018. Submissions shall be a maximum of 10 pages, exclusive of the Bill of Costs and any offers to settle.

[46] Any requirement for approval of this Order as to form and content by the Respondent is hereby dispensed with.

[47] More than one year ago, I ordered that I would hear all matters related to this Application. I am no longer sitting in the Family Law Division and, accordingly, it is appropriate to remove that restriction.

[48] In the event that the children’s circumstances do not significantly improve over the next 90 days, I encourage the JFCS to take whatever steps that they deem appropriate to protect the children, which may include commencing a child protection proceeding under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1.

Mr. Justice M. D. Faieta Released: August 31, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: E.T., Applicant – and – L.D., Respondent

REASONS FOR DECISION Mr. Justice M. D. Faieta Released: August 31, 2018