BARRIE COURT FILE NO.: FC 15-1348

DATE: 20181122

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

DAWN BALFOUR

Applicant

– and –

DEVLIN BALFOUR

Respondent

K. BROMLEY, for the Applicant

Self-Represented

HEARD: May 24, 25, 26, 29, 30, 31, June 1 & 2, November 21, 2017, May 14, 15, 16, 17, 18, 22 & 23, 2018

FINAL WRITTEN SUBMISSION RECEIVED: August 10, 2018

DECISION

L.E. FRYER, J.

I. Introduction

[1] Dawn Balfour (the “Mother”) and Devlin Balfour (the “Father”) are the biological parents of two girls: S.B. (born April 12, 2007) and T.B. (born June 16, 2010).

[2] This trial, which stretched over three trial sittings between November 2016 and May 2017, is the culmination of lengthy and difficult litigation between the girls’ parents over what is in their best interests.

[3] The Father has not seen the children for almost two years. Things did not start off like this. For well over a year after the parties separated on December 9, 2014, they had shared parenting of the children; first, in a nesting arrangement in the matrimonial home, and later when they resided in separate homes. The children were exposed to significant conflict between the parents during this time and the Simcoe Muskoka Family Connexions (the “CAS”) was involved. The Father’s relationship with the children started to deteriorate and by the fall of 2016 he was having only minimal and sporadic time with the children. He has not had an access visit with either child since December 20, 2016.

[4] In March 2017, T.B. disclosed that her Father had shown her sexually inappropriate content on the TV on her last access visit. The CAS and the police both investigated. Even though the disclosure was not verified, it signalled the end of any willingness that the Mother may have had to facilitate a relationship between the Father and the children.

[5] For the Father, the purpose of this trial was to prove that the Mother is engaging in parental alienation. In his view, the Mother is primarily, if not solely responsible for his estrangement from the children, and he proposes that the children be removed from her care. The Father is also of the view that most, if not all of the agencies and professionals involved with him and his family, including to some degree this court, are biased against him.

[6] The Mother raised a number of serious concerns about the Father, including concerns regarding his mental health, to justify her role in the Father’s fractured relationship with the children. At the start of the trial in May 2017, the Mother said that she would support the children participating in a therapeutic process with a reunification therapist, but that it would be up to the reunification therapist to determine when or if access between the children and the Father would take place. However, when she was asked by the court what her position would be, should the therapist recommend unsupervised access, it became clear that the Mother would have real difficulty complying with that recommendation.

[7] As there was little or no expert evidence available to assist the court with these serious and competing concerns about each party’s parenting, I ordered the parties to retain Howard Hurwitz to conduct a custody and access assessment pursuant to section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 (the “CLRA”). Mr. Hurwitz provided detailed and helpful recommendations that shed some light on this difficult dynamic between the parties and their children.

II. Analysis

1. Background

[8] The Mother is 50 years old. The Father is 46 years old.

[9] The parties met in a yoga course in September 2005. They had a whirlwind courtship and married on February 25, 2006.

[10] The Father has worked with at risk youth and until 2014, he was employed with COSTI assisting new immigrants to find employment, among other things.

[11] The Mother emigrated from England in 2004. Although initially she was unable to work due to the terms of her visa, she has been working as a yoga instructor for many years.

[12] The parties’ eldest child S.B. was born on April 12, 2007, and T.B. was born on June 16, 2010. In between the birth of the girls, the parties had a child, A.B., who passed away at 21 weeks old.

[13] The parties experienced significant conflict during their marriage to which the children were exposed. The police were called on at least one occasion prior to the separation and the CAS became involved due to parental conflict.

[14] The parties separated on December 9, 2014; however, they stayed living separate and apart in the matrimonial home.

[15] In the summer of 2015, the parties attempted a nesting arrangement wherein they would move in-and-out of the matrimonial home to care for the children. Throughout this post-separation period the conflict continued to escalate. The Mother contacted the police again and the CAS remained involved with the family due to the children’s exposure to this conflict. At one point, the CAS worker suggested to the parties that they might have to consider apprehending the children if the parents could not reduce the conflict.

[16] On or about October 6, 2015, the Mother commenced this Application and brought a without notice motion. The Mother, who had left the home with the children for a shelter, sought a restraining order and supervised access. The Father brought a motion the next day on October 7, 2015 in which he sought the return of the children. This led to a temporary order wherein the parties continued to have shared parenting of the children. The Father moved out of the matrimonial home and into an apartment.

[17] Despite the physical separation of the parties, their conflict continued unabated and by September 2016 the frequent access exchanges set out in the temporary order were taking place at the police station. The children were also becoming more resistant to spending time with the Father and his relationship with them was deteriorating. The Father raised concerns about parental alienation.

[18] On February 24, 2016, McDermot J. made an order requesting the involvement of the Office of the Children’s Lawyer (the “OCL”). The OCL appointed a clinician, Danielle Mink, to conduct an investigation. In her report, dated August 21, 2016, she found that parental conflict was the biggest challenge facing the family at that time. She recommended that the Mother have sole custody and primary residence of the children, with the Father to have access on three out four weekends, among other time. Ms. Mink did not identify parental alienation as an issue.

[19] The Mother indicated that she was content with the OCL’s recommendations. The Father however did not accept them and filed a dispute to the report.

[20] Following the release of the OCL report, the Father’s relationship with the children started to nosedive. The children, particularly S.B., regularly refused to go for access visits or speak with the Father on the phone. The Mother could not or would not make the children attend.

[21] After an access visit on or about November 18, 2016, S.B. refused to go for further visits. This was the last time the Father had an access visit with S.B. outside of a therapeutic setting.

[22] On or about November 28, 2016, the Rainbows program contacted the CAS regarding a drawing that T.B. had made depicting the Father punching her in the stomach. T.B. said that she was afraid of going for access. The CAS investigated this disclosure and found that it was not verified. Both children denied that there was excessive discipline. However, the CAS continued to have concerns about the high level of conflict to which the children were being exposed.

[23] On or about December 12, 2016, the Mother served materials for a motion returnable December 22, 2016 for an order that the children participate in reunification counselling and that the Father have no access except as recommended by the therapist; the Mother also sought a finding of contempt. The Father brought a cross-motion for contempt and for the sale of the matrimonial home.

[24] On December 20, 2016, having had no regular parenting time with her Father for some time, and despite the recent disclosure at Rainbows, T.B. indicated that she would like to visit her Father and give him Christmas presents. As will be described in some detail below, the visit did not go well and this was the last visit that T.B. had with the Father outside of a therapeutic setting.

[25] At the next court attendance on January 4, 2017, the Father agreed to retain Sue Cook for reintegration therapy for the children. The children saw Sue Cook approximately once per week for an hour until about April 2017, when therapy ended. The Father was not involved in this therapeutic process.

[26] On or about March 3, 2017, T.B. disclosed to the Mother’s then boyfriend, Daniel Musselman (who is an experienced OCL clinician), that at her last visit with the Father, the Father showed her a sexually inappropriate video. The Mother contacted CAS several days later only after discussing the allegations with T.B. and with her lawyer. The CAS investigated the allegations and could not verify them. Nevertheless, the Mother believes that something happened to T.B. at the Father’s that night and she continues to have concerns about the girls’ safety with the Father.

[27] This trial started on May 24, 2017. After the Mother completed her case, I advised the parties that I was concerned about not having up-to-date expert evidence with respect to the parenting issues given the Father’s repeated and vocal assertion that the Mother was engaging in parental alienation and the Mother’s concerns that the Father had exposed T.B. to pornography and was grooming her for an abusive sexual relationship. I asked the parties to make submissions as to alternatives to putting some expert evidence before the court to assist with the parenting issues. Ultimately, on consent of the parties, on June 2, 2017, I ordered that they jointly retain Howard Hurwitz, who the Father had proposed, to conduct a custody and access assessment pursuant to s. 30 of the CLRA. The objective of the assessment was to determine why the Father’s relationship with the children was fractured, the impact of the abuse allegations on the Father’s relationship and what could be done to repair the Father’s relationship with the girls.

[28] By the return of the trial set for November 21, 2017, the assessment was not complete due in part to the Father’s failure to pay Mr. Hurwitz as he had been ordered on consent to do, and in part, because the Father disagreed with the professional initially selected by Mr. Hurwitz to conduct psychological testing of the parents.

[29] Mr. Hurwitz’ report was finally completed on May 1, 2018, and the trial resumed on May 14, 2018.

[30] The Father has had no access visits with the children since December 20, 2016.

2. Credibility

[31] I found the Mother to be, on the whole, a credible witness. She struck me as very artless and open and she was, for the most part, prepared to admit her own failings.

[32] With some exceptions, I found the Father reasonably credible. There were times when the Father contradicted himself, but I attribute this less to being dishonest and more to being under immense emotional pressure and being scattered.

3. Analysis of Custody & Access Issues

[33] The Mother proposes that she will have sole custody of the children and they will remain in her primary care. The children will have access with the Father at a supervised access centre, in addition to participating in reintegration therapy with Sue Cook or a different therapist, to be paid for by the Father. The Father’s access to the children will be expanded only as recommended by the reintegration therapist.

[34] The Father seeks a finding that the Mother is engaging in parental alienation and that as a consequence, the children should be removed from her care, but not necessarily placed in his care. He proposes that the children be placed with their godparents, or alternatively, with a suitable “foster” arrangement. He and the children would participate in intensive reunification therapy with Dr. Barbara Fidler or a similarly qualified reintegration therapist. The Mother would have access to the children only as recommended by the reintegration therapist.

(a) Law of Custody and Access

[35] Under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the “Divorce Act”):

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

[36] Sections 16(8)-(10) of the Divorce Act stipulate:

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

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

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

[37] Section 24 of the CLRA also details the factors that a court shall consider when making a determination with respect to custody and access, and these factors act as a useful guide for a best interests analysis under the Divorce Act: A.F. v. D.G., 2012 ONSC 764, at para. 185.

[38] Section 24 of the CLRA is set out below:

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

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

i. each person entitled to or claiming custody of or access to the child,

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

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

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

c) the length of time the child has lived in a stable home environment;

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

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

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

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

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

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

a) in accordance with subsection (4); or

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

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

a) his or her spouse;

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

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

d) any child.

[39] As the Supreme Court of Canada stated in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 44, applying Appleby v. Appleby, 1989 CanLII 8821 (ON SC), 21 R.F.L. (3d) 307 (H.C.J.):

Every child is entitled to the judge’s decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine this inquiry, they should be rejected: “No matter what test or axiom one adopts from the many and varied reported decisions on this subject, each case must, in the final analysis, fall to be determined on its particular facts and, on those facts, in which way are the best interests of the children met.” [Citations omitted.]

(b) Parenting prior to summer 2016

[40] It is important to understand the history of the relationship between the parents and their children leading up to the effective termination of the Father’s relationship with the children by the end of 2016.

[41] For much of the marriage, the parents were both very involved in the care and upbringing of the children. The Mother was the primary caregiver for the children before they were school age. When the children started school, both parents were very involved if not equally involved with the care of the children.

[42] The Mother has throughout been a warm, loving and caring parent to the children. She has been very engaged in their day to day lives and activities. The Father raised instances wherein the Mother may have physically disciplined the children or used other inappropriate discipline, but it is clear that both children have been, and continue to be, emotionally bonded to her.

[43] Historically, the Father also had a very involved, meaningful and loving role with his children. He described various activities that they did as a family and activities that he did alone with the children when the Mother was teaching yoga or travelling on her own. He and the children would engage in a variety of outdoor activities including cycling and hiking. The Father and the girls would engage in make believe games. Once a week, they would have a movie night and camp out in the living room.

[44] It was not disputed that the Father did not believe in physical discipline and did not engage in physical discipline. He did utilize time-outs, although he always sought to talk to the girls about their behaviour prior to implementing the time-out. The Mother’s view was that the Father gave time-outs excessively and that S.B. was disciplined by the Father more than T.B.

[45] The family experienced a number of serious financial and emotional stressors that led to conflict and compromised their parenting. The Mother inherited money from her father and this enabled the parties to purchase a matrimonial home and pay off the Father’s pre-marriage debts. However, the Mother and Father quickly learned that their matrimonial home had numerous deficiencies that had not been disclosed prior to the purchase and that were expensive to repair. They considered selling the matrimonial home but knew that they would incur a sizeable loss. In addition, the Mother maintained a relationship with a former partner that led to conflict because the Father suspected infidelity. Lastly, although neither party spoke at length about this at trial, there was the tragic death of their son, A.B.

[46] The children became increasingly exposed to conflict between their parents. Although the Mother sought to cast blame on the Father, the evidence suggested that the Mother was equally responsible for the conflict and the children’s exposure to it.

[47] The parties separated on December 9, 2014, but they remained living in the matrimonial home. The Mother lived downstairs in the basement apartment and the Father lived upstairs while alternating periods of care for the children. This arrangement did not work well for either of the parties or for the children.

[48] The following examples illustrate the nature of the conflict to which these children were exposed during this period.

[49] Sometime in the spring of 2015, the Father was berating S.B. as he did not believe her when she said she had already brushed her teeth before bed. He “discussed” this relatively minor issue with her at some length. The next morning, the Father resumed this “discussion” with S.B. The Mother openly recorded the interaction between the three of them. The video showed that S.B. had worked herself into a state – she was crouching on the floor just inside her room, her face was red and she was crying. The Mother was criticizing the Father for continuing to discipline S.B. The Father was criticizing the Mother for having the discussion in front of the children. According to the Father, the Mother said to S.B. something to the effect of: “he is treating you the way he treats me” and this further triggered S.B.

[50] Regardless of the genesis of this incident, the video reflects the level of conflict and poor parenting to which the children were being exposed. The Mother was openly critical of the Father in front of the children and conflated her own issues with the Father with those of the children. Whereas the Father was engaging in extended and disproportionate discipline that was overwhelming, in this case for S.B.

[51] Another incident that occurred around the same time and was described by both parties at length, also exemplifies the negative parenting dynamic to which the children were being subjected in the months after separation.

[52] The parties had agreed to sign S.B. up for a soccer league, but the league had not yet determined the night of the week for practices. On the morning in question, the Father found out that soccer was set for Tuesdays and he told S.B. who, according to him, was excited about playing. When the Father and S.B. came downstairs and told the Mother, the Mother became very upset as this Tuesday was her “one-on-one” night with S.B. The Mother put it to S.B. that she needed to make a choice: play soccer or have her special night with mummy. S.B. was very upset and was crying. Although the Mother acknowledged that they each might have different ideas about what S.B. wanted, she appeared to justify her position by saying that she knew that S.B. did not really like soccer and it was the Father who wanted her to play.

[53] The argument continued with S.B. becoming more and more distraught; she told her parents that she did not know what to choose. The Father attempted to take the discussion away from the children and the Mother admitted that he tried to suggest that there were likely other options for soccer. The Mother accused the Father, in front of S.B., of manipulating S.B. The Mother shouted at the Father repeatedly to leave the house and he refused. By this time, T.B., who was also present, was very upset. The Mother called the police. From the Mother’s evidence it sounded more as though she was frustrated that the Father would not do what she wanted, rather than that she felt threatened by the Father.

[54] The children were sitting next to the Father on the couch clinging to him when the police arrived. The Father felt, and it would seem likely, that the children were afraid that he was going to be arrested. The Mother dismissed this possibility by saying that: “there was a fear based relationship there too and they modified their behaviour.” Later that evening, the girls continued to be very clingy with the Father.

[55] The Mother called the police a second time that summer. According to the Father’s evidence, the parties were having an argument. T.B. involved herself and said to the Father that he needed to apologize to the Mother. When the argument escalated further, the Mother indicated that she was going to the police and would be taking the children. S.B. was initially reluctant to go, but ended up accompanying the Mother and T.B.

[56] The police did not take steps with respect to either party. The CAS, however, continued to warn the parties about the escalating level of conflict and suggested that if the parties did not address the conflict to which the children were being exposed, the children might be brought into care.

[57] The Mother heeded the Society’s warnings and left with the children for a shelter. On October 6, 2015, the Mother brought an urgent motion seeking a restraining order against the Father for her and the children and seeking supervised access for the Father. The Father brought his own without notice motion.

[58] It is unclear why the Mother sought the relief she did in her Notice of Motion. In the two weeks prior, the interaction between the Mother and the Father had been cordial. The Mother and the Father met to discuss various issues. The Mother also suggested that the family all have dinner together. When pressed by the Father in his cross-examination of her as to why her attitude toward him changed so drastically to the point where she was seeking a restraining order and supervised access, the Mother’s response was that “she could not answer”.

[59] The same day she filed her motion and despite the nature of the relief sought therein, the Mother returned to the matrimonial home apparently to make lunches for the children. The Father had said that he was going to leave the home and go to a friend’s place, but he was still there when the Mother returned. There was no suggestion that the Father did anything to trigger the need for the police. The Mother again called the police, who attended, but left without taking further steps.

[60] The Father then moved out into an apartment and the Mother remained living in the matrimonial home. The parties’ two without notice motions resulted in a temporary order wherein the parties had shared parenting of the children. No restraining order was issued.

[61] While some of the Mother’s actions, including the calls to the police, were ill-advised, I accept that the Mother felt that she was not being heard by the Father, that she was frustrated and felt that she had nowhere else to turn. It is clear from the evidence that the Father tends to fixate on issues. He wants to talk an issue to death, preferably until the listener adopts his point of view. This was the Mother’s experience with the Father and what she witnessed of the children’s experience with him in this period. However, as the Father pointed out, the effect of the police involvement in these circumstances was that the children perceived that he was the person being investigated and that he was a problem and a threat. The examples set out above also demonstrate that the Mother was prepared to openly side with the children over the Father and to conflate her personal issues with the Father with the children’s issues.

[62] Regrettably, these parenting concerns did not abate following the physical separation of the parties. If anything, they intensified.

[63] For a period of time, the Mother and the Father remained committed to the shared parenting schedule, and the Father’s relationship with the children, although not without issue, still existed.

[64] The Father provided various examples of appropriate parenting during the period after the physical separation. He set up a sacred space in his apartment where a child could opt to go if they were escalating. The Father felt that this worked really well in calming the children. The Father helped S.B. work through a problem that she was having at school with bullying. They tried role playing so that S.B. could develop a script to extricate herself from situations where she might be bullied. The Father put a series of family videos to the assessor, Mr. Hurwitz, that were taken in the summer of 2016. The videos, although brief, show the children having warm, natural and positive interactions with the Father.

[65] The Father acknowledged that during this time, in many ways, it was easier to connect with T.B., whereas S.B. was pulling away. He also admitted he could be harsher with S.B. By the summer of 2016, he noticed S.B. pulling away even more. T.B. on the other hand became more affectionate and clingy. He also observed that S.B. was very angry and was initiating fights with T.B. The Father started to experience significant struggles addressing the children’s different needs.

[66] The conflict between the parents continued. They moved the frequent access exchanges to a neutral location and eventually to the local police station.

[67] By the end of the summer of 2016, the Father’s relationship with S.B. was in serious jeopardy and T.B. was also starting to resist contact with him.

[68] The OCL investigator, Danielle Mink, had been working with the family during this same period. She released her report on August 21, 2016. As noted above, the primary concern identified by Ms. Mink for the children was parental conflict. Although the Father had raised parental alienation as an issue, Ms. Mink made no such finding.

[69] Ms. Mink made the following comments in her report:

• The children have been exposed to ongoing conflict between their parents for several years.

• The children have knowledge of adult issues related to their parents’ marriage and finances.

• The children are conflicted regarding their relationship with the Father. They appear to have fun with him; however, they also display verbal or physical aggression in the form of name-calling, hitting and kicking him.

• The children expressed a significant amount of anger towards their father regarding his treatment of them and their mother over time.

• The children appear hyper-aware of the Mother’s stress in response to the negative interactions between parents and appear to identify emotionally with her.

• It is important that the children and the parents engage therapeutic supports so that these relationships do not become further strained.

[70] Ms. Mink recommended that the Mother have sole custody and primary residence of the children, with the Father to have access on three out four weekends, among other time.

[71] Although the OCL report was filed in support of these proceedings, the findings contained therein were relatively stale by the time the case proceeded to trial in May 2017.

[72] The Father filed a dispute to the OCL report. It is not clear if his real objection was the suggested parenting time or the failure of the OCL to confirm his assertion that the Mother was engaging in parental alienation. From the Father’s position at trial, I suspect it was the latter.

(c) Parental Alienation

[73] After the release of the OCL report, the decline in the Father’s relationship with the children accelerated.

[74] The Father has not had an access visit or any regular contact with S.B. since October 2016. He has not had an access visit with T.B. since December 20, 2016, and he has had only sporadic telephone contact with her.

[75] That the Father believes that the Mother is responsible for the children’s rejection of him is an under-statement. At the beginning of the trial, the Father engaged in lengthy diatribes about his research, findings and examples of parental alienation. His cross-examination “questions” were akin to soliloquies on parental alienation. I was required to re-direct the Father on numerous occasions to conduct his questioning in an appropriate fashion, achieving mixed results. All that being said, the Father is obviously and understandably upset at the loss of his relationship with his children and he is striving to find a way to repair it.

[76] As will be seen from the narrative that follows, there is support for the Father’s position, but the reasons for the Father’s estrangement from the children are more complex and multi-faceted.

(i) Hurwitz Assessment

[77] Mr. Hurwitz is an experienced assessor. He was proposed by the Father as he has particular expertise with cases involving parental alienation and he was accepted for this role by the Mother.

[78] Mr. Hurwitz had numerous interviews with each of the parents. He interviewed a variety of collaterals including Danielle Mink and a CAS worker who was involved with the family. He conducted a series of observation visits involving the children and each parent. Each party had raised allegations that the other’s mental health was an issue and I ordered on consent that each party undergo psychological testing as part of the assessment process.

[79] Mr. Hurwitz found the Mother generally polite and cooperative, whereas the Father was more challenging to work with. The Father needed additional interviews and took considerable time putting his information forward.

[80] Mr. Hurwitz wrote a lengthy report summarizing the information that he assembled, the social science literature, his findings and recommendations. He also attended at the trial and was cross-examined by both parties.

[81] Dr. Fitzgerald conducted the psychological testing and his report was also filed as an addendum to Mr. Hurwitz’ report. On the first day of the resumption of the trial, the Father indicated that he intended to call Dr. Fitzgerald to be cross-examined, but he had not yet contacted him to ensure that he would attend. The Mother advised that she did not need to cross-examine Dr. Fitzgerald. The next day, the Father advised that Dr. Fitzgerald was not available to attend during the time set for the trial.

[82] I have summarized Mr. Hurwitz’ evidence with respect to each parent and each child:

The Mother

• The Mother’s experience of emotional abuse at the hands of the Father and her fear of the Father were real for her.

• The Mother’s concerns with respect to the Father’s behaviour arose primarily after the separation.

• At one level, she wants the children to have contact with the Father, yet she struggles with whether this would be safe.

• The Mother has allowed the children to be exposed to adult issues and conflict.

• The Mother is very child focussed; she is knowledgeable and aware of the children’s needs. At times she over identifies with their feelings, but is able to make parental decisions for them.

• The Mother believes that the Father will treat the children in the same negative way that he treated her. She also has concerns with aspects of the Father’s upbringing that he may visit upon the children. For example, the Father’s mother favoured his older brother. The Mother and S.B. believe that the Father favours T.B.

• The issue of whether the Father showed T.B. pornography is unresolved for the Mother. She has stated, in front of the children, that the Father is grooming T.B. for sexual purposes.

• The Mother has conveyed many of her concerns to the children both covertly and overtly.

• Under the guise of supporting the children, the Mother has endorsed the children’s narrative that the Father is a risk and that they are unsafe with him. In so doing, she reinforces to them that their experience with the Father warrants their position about not wanting contact with him and consequently undermines their relationship with the Father. The Mother has aligned with the children around their belief that they are not safe with the Father.

• The Mother has limited the children’s access to members of the Father’s family.

• The Mother is very ambivalent about the Father having a relationship with the children. She has great difficulty separating the Father from being an unsatisfactory husband from being the children’s father.

• Some of the foregoing are indicia of alienating behaviour.

• The FatherThe Father is single-minded in his view that the Mother is engaging in alienating behaviour. He resisted all efforts to consider alternative hypotheses. The Father has considerable difficulty accepting any personal responsibility for the conflict with the Mother during the marriage and the fractured state of his relationship with the children.

• The Father often claimed that the “system is biased” and that he is the victim of efforts by various agencies and individuals involved with him and his family. The system bias narrative often expands to bigger political issues for the Father.

• During the observation visits when the girls’ behaviour was extreme, the Father conducted himself with remarkable empathy and restraint. However, he also has considerable difficulty managing the girls’ behaviour and this placed them in the place of potential danger.

• The Father was very suspicious of the various professionals engaged with him and the family and the professionals reported that he was difficult to work with.

• The Father is highly critical of anyone who does not share his perspectives and beliefs, which include that he is the victim of a biased family law system.

S.B.

• S.B. is doing well in school and has good interpersonal relationships.

• S.B. is very close to and feels the need to protect her Mother.

• S.B. is fearful and critical of her Father.

• S.B. has a dominant personality and was observed to control and influence her little sister, particularly with respect to T.B.’s interaction with the Father. S.B. sought to influence T.B. to limit contact with the Father.

• S.B. has been exposed to the adult issues and litigation. In some respects, she has cognitive distortions with respect to historical events such as the Wasaga Beach incident.

T.B.

• T.B. is doing well in school and with respect to peer relationships.

• T.B. made comments that did not appear to be true, such as that her Mother consumed a lot of alcohol; this was a concern given T.B.’s disclosure that the Father showed her sexually inappropriate material.

• While T.B. told her Father that she wanted to self-harm, there was no evidence that T.B. genuinely wished to do so.

• There was concern that T.B.’s comments were being given heightened importance when there were many inaccuracies within them, and it is possible that T.B.’s behaviour is part of an “attention-seeking” dynamic.

[83] Mr. Hurwitz found that the Mother was engaging in alienating behaviour. However, there had been significant conflict with the Father during the marriage and her experience informed her position with the children leading Mr. Hurwitz to characterize this as a case of “hybrid” alienation.

[84] Mr. Hurwitz went on to find in his report that: “T.B. and S.B.…. are children whose emotional and behavioral responses to their father can be characterized as severe based on observations held in meetings with their father throughout this assessment”.

[85] Even though Mr. Hurwitz in many ways supported the Father’s position, the Father took issue with Mr. Hurwitz’ evidence for a number of reasons. I have addressed some of the Father’s criticisms in detail below as they illustrate the Father’s approach to professionals who are engaged to assist his family.

[86] Mr. Hurwitz made a series of omissions and errors including failing to acknowledge the Mother’s ongoing relationship with Mr. Musselman. Many of the errors and omissions noted by the Father were of a minor nature. For example, in reference to the fight regarding S.B. playing soccer versus spending time with her Mother, Mr. Hurwitz failed to identify that it was not just one night but the whole soccer season at stake. Other “errors” identified by the Father were really instances wherein Mr. Hurwitz did not accept the Father’s version of events.

[87] In raising these points about Mr. Hurwitz’ evidence, the Father referred to the more “accurate history” available in his recordings. This despite my detailed ruling during the trial prohibiting the Father from using his surreptitious recordings for any purpose. The Father’s reference to the recordings was a characteristic of his that I observed during the trial: he purported to be cooperative and accepting of the court’s direction and then would simply proceed as he saw fit even if in contravention of that direction.

[88] Mr. Hurwitz downplayed T.B.’s threats of self-harm. During the assessment process when the Father was present at Mr. Hurwitz’ office, Mr. Hurwitz asked S.B. to leave the room as she was actively trying to influence T.B. During the time when T.B. and the Father were left on their own, T.B. expressed thoughts of self-harm to the Father. The Father was understandably concerned and, he raised the occurrence with Mr. Hurwitz and the Mother. Mr. Hurwitz discussed it with the Mother and he was satisfied with the steps that the Mother took and reported back to him to ensure that T.B. was safe. Despite this, the Father could not let the issue go and used the disclosure and Mr. Hurwitz’ response to it as an opportunity to criticize Mr. Hurwitz of bias. Mr. Hurwitz found this emblematic of the Father’s overall behaviour and his inclination to obsess over particular details at length. Mr. Hurwitz was concerned that the children had experienced that same obsessional behaviour in the Father’s parenting and would continue to in the future, if the Father did not take active steps to address the issue.

[89] Mr. Hurwitz declined to review information and evidence proffered by the Father, including various videotapes and the CAS case notes. Mr. Hurwitz considered a significant number of collateral sources in the preparation of his report. As the court’s expert, Mr. Hurwitz had the authority to determine what information he deemed pertinent and what he deemed less relevant. He was not obliged to consider everything each parent put to him.

[90] Mr. Hurwitz recommended that the Mother have sole custody of the children and that their primary residence remain with her. He was of the view that the Mother would avail herself of therapeutic supports and ensure that the children engaged in appropriate therapy. He was not confident that this was true for the Father, who he felt had limited insight into his own role in the family conflict and his estrangement from the children. Mr. Hurwitz recommended that the Father have supervised and therapeutic access to the children for at least one year to ensure that the children have a safe experience with him, hopefully leading to more normalized access.

(ii) Other Evidence of Alienation

[91] Even before Mr. Hurwitz commenced his assessment mid-way through the trial, there was evidence to support the Father’s concerns about the Mother’s role in the children’s rejection of him.

[92] In his report, Mr. Hurwitz set out a list of common indicia of parental alienation that I have used to organize the evidence that I received.

Bad-Mouthing

[93] The Mother acknowledged that she shouted at the Father and used abusive language with him, including calling him an idiot and an asshole. The children started to mirror this behaviour. It was also not disputed that the Mother was physical with the Father from time to time during the marriage. The children emulated this behaviour as well, punching the Father or threatening him physically.

[94] In an e-mail dated June 12, 2016, the Mother criticized the Father for feeding the children hot dogs and ice cream on his parenting time with them, and yet had earlier asked him to contribute to the cost of the children’s hot dog day at school. Within a week of this e-mail, T.B. accused the Father of feeding her and S.B. bad food. T.B. admitted that the Mother fed them hot dogs, but “they were the healthy ones”.

[95] The Mother told the girls that they could no longer have certain things because the Father was no longer paying for the house. While the message to the children may have been innocuous: “we don’t have as much money as we used to, so you can’t have everything you want”, in the climate following the physical separation of the parties, this added to the children’s rejection of the Father. T.B. accused the Father of stealing money from mummy.

Limiting contact

[96] The children have been in the sole care of the Mother since September 2016 and neither child has had an access visit with the Father since December 2016.

[97] Even when the children were attending for access, the Mother felt that it was healthy for the children to have input into the parenting schedule. She confirmed that “she always [wanted] to talk to the children” before agreeing to a plan of access with the Father.

[98] There is no question that it became more and more difficult for the Mother to encourage the children to transition to their Father for access. The children would lock themselves in the bathroom and the Mother would have to coax them out. At times, the Mother would have to physically put the children in the Father’s car.

[99] As the children’s rejection of the Father deepened, the Mother said that: “we [the children and I] discussed it and if they said they did not want to go, I would not push it”.

[100] The Father did bring a contempt motion in early January 2017, which did not end up proceeding. After a time, he did not push the issue of access either.

[101] The Mother has not facilitated a relationship with the Father’s extended family. Again, she “left it to the girls” to contact their paternal grandparents and other family. One year, the paternal grandparents gave the girls Christmas gifts; the Mother emphasized that T.B. received a nicer gift than S.B. When the Father put it to the Mother that his parents live in a remote community and it is difficult to find unique gifts, the Mother’s response was “well in the past you gave unequal gifts”. One was left with the impression that the Mother was ambivalent about not only the Father’s relationship with the children but his extended family as well.

Withdrawal of love/getting angry when the child is positive towards the other parent

[102] The soccer incident described above is one example wherein the Mother was clearly upset by the prospect that S.B. might opt for an activity that the Father arranged, rather than having their one-on-one time. Although the Mother stressed that she knew from previous conversations with S.B. that she really did not want to play soccer, the degree to which this incident escalated reflects the high emotion experienced by the Mother and to some extent the Father. It also exemplified the loyalty bind that the Mother was prepared to put S.B. into at that time.

[103] On another occasion, during the nesting arrangement, the Mother had asked the Father to care for S.B. during her time, including asking him to wash S.B.’s hair. S.B. had asked to be with the Father rather than a babysitter. In cross-examination by the Father, the Mother felt the need to qualify that S.B. had only asked to spend time with the Father because the babysitter was not being nice to her, as opposed to wanting to spend time with the Father.

Forcing the child to choose or express loyalty

[104] The Mother’s need for an exclusive relationship with the children pre-dated the separation of the parties. The Mother acknowledged playing a game with the children during the marriage wherein she asked the children who they loved more, mummy or daddy. The Mother downplayed this as a lighthearted joke, but from my perspective it was concerning and presaged things to come.

[105] The soccer incident is another example of S.B. being forced to pick a side under immense pressure and conflict.

[106] When the children were in the care of the Father, the Mother called them and told them that she missed them and that their pets also missed them. When the Father put to the Mother in cross-examination that this must have made the children feel guilty and conflicted about being with him, her response was “we [I and the pets] did miss them”.

[107] S.B.’s reaction in terms of rejecting the Father and aligning with the Mother is more pronounced, as she feels that T.B. is favoured. According to S.B., the Father has conveyed to her that she is less valued.

[108] S.B. has a strong and dominant personality and she plays a significant role in T.B.’s rejection of the Father. For example, during the assessment process, when T.B. suggested that the Mother was drinking too much (something that the evidence did not bear out), S.B. physically tried to stop her from speaking by putting her hand over her mouth. There were other important examples of S.B.’s influence over T.B. in the sexual abuse allegation discussed below.

Telling the child that the other parent is dangerous

[109] The Mother has portrayed to the children that the Father is unsafe and dangerous and she has failed to reality check with the children in terms of their stated fears of the Father. The children’s fear of their Father is now very real for them even if not grounded in reality, and this fear forms a key part of their rejection of him.

[110] During the nesting period prior to the physical separation of the parties, the Mother recruited the children to come and get her if they felt that the Father was unreasonably disciplining them; the Mother then recorded the interaction. The teeth brushing incident with S.B. is an example of this.

[111] The calls to the police by the Mother would also have suggested to the children that she felt unsafe around the Father and so too should they.

[112] Later, after the physical separation of the parties, when the Mother dropped the children off to the Father, she would at times say to the children “you can call me if your Father is mean to you”.

[113] The Mother clearly had concerns about the Father’s parenting and his approach to discipline. As will be discussed further, some of these concerns were valid. Her actions had the effect of not only allying the children with her and against the Father, but also, of undermining his attempts to discipline. Again, her actions also reinforced to the children that the Father was dangerous and unsafe.

[114] This theme has continued in amplified form to the point where, according to Mr. Hurwitz, the children’s reaction to their father can be characterized as at the extreme end of the scale. The children have taken historical incidents and re-written them to fit the new narrative in which the Father is dangerous and to be feared. The Mother has to a great degree supported this narrative.

[115] A striking example of this was the Wasaga Beach incident. This “incident” was referred to numerous times by the parties and by some of the other witnesses at the trial.

[116] The Father and the girls were at Wasaga beach with friends. The Mother was not present. S.B. was playing on a floating lily pad with her cousins in shallow water where she could stand; she was able to swim at the time. The Father was holding T.B., who could not swim. The Father saw S.B. swimming, but she was upset and said that she had fallen off the lily pad and almost drowned. After S.B. calmed down, she resumed playing on the lily pad. Following this incident, the Father and the children went swimming several times later that summer, including in Lake Simcoe without incident.

[117] The Mother has re-characterized this incident as one in which the Father allowed S.B. to drown; S.B. goes further by characterizing it as one in which the Father drowned her. As the Mother was not present, her information regarding the incident would all be second hand.

[118] The Wasaga Beach incident came up with Mr. Hurwitz at the first meeting between the Father and the children after many months of no contact. The children’s reaction to the Father at the meeting was extreme to say the least. S.B. started off by saying: “I don’t want to be with the devil…he is evil.” S.B. then said: “He likes my sister better. He did bad things to us. He tried to make us both drown.” There was never any suggestion that T.B. was at risk during the Wasaga Beach incident and it was interesting that S.B. had expanded the umbrella of her experience to include T.B.

[119] Mr. Hurwitz went on to say in his report:

I asked about the Wasaga Beach incident. S.B. explained it very quickly. S.B. became abusive when explaining what occurred at the beach. S.B. told her father not to talk, when he attempted to share his perspective. [The Father] was polite and calm with her while she was interrupting him. T.B. cuddled up to her sister. S.B. held her sister in a protective manner.

S.B. glared at her father and told him ‘not to call T.B. honey.’ S.B. was trying to control the new information that T.B. was going to share about a new pet with her father. At one point, S.B covered T.B.’s mouth when T.B. was continuing to talk.

Mr. Balfour talked about the swimming and the raft at Wasaga Beach. S.B. wouldn’t let him talk and mumbled under her breath. He said that he was close to her and wouldn’t let her drown.

T.B. repeatedly tried to throw Kleenex. The children were now provoking him and said ‘you are not the boss of me.’ S.B. intensified her comments as her father attempted to speak and said the ‘only friend you have is a bad guy….who cheated on his wife.’ I asked her how she knows that and she said that he told us. Mr. Balfour denied this.

[120] Later in his own evidence, the Father also seemed to feel the need to re-write history to make himself appear in a better light. He described how he sat down with S.B. at Wasaga Beach and talked to her at length, re-assuring and comforting her. From my perspective, his initial version of the events and likely the more accurate version, was an appropriate example of parenting wherein he reassured S.B. but encouraged her to resume play on the raft.

[121] The Wasaga Beach incident has been blown out of proportion in the minds of both the children and the Mother. The Mother supported S.B. in making a video about her feelings regarding this incident.

[122] Kirsten Wong, the children’s babysitter of several years said that S.B. is very angry with her Father – she cannot trust him and does not feel safe with him – she refers to him as the devil. Ms. Wong also referred in her evidence to “the drowning incident”. According to Ms. Wong, the Mother’s response to these comments by the children is to say: “we don’t want to dwell on that…we need to move forward…that was in the past”.

[123] Mr. Hurwitz noted that the children have significant work to do to overcome this and other similar cognitive distortions.

[124] The children’s safety in the care of the Father continues to be a significant issue for the Mother and for the children following T.B.’s disclosure that the Father had forced her to watch sexually inappropriate material on her last access visit.

Confiding in the child about adult relationships with the other parent

[125] There were a number of examples of both parents engaging in this behaviour.

[126] The Mother admitted that she had adult conversations about the Father within earshot of the children, although she later took steps to ensure that the children could not hear.

[127] The Mother told the girls about affidavit evidence that the Father had filed in court. The Mother acknowledged that this was a mistake and said that she had done this inadvertently as she became aware of the affidavit when the children were with her in the car. S.B. referred to it again when she met with the Father many months later in Mr. Hurwitz’ office.

[128] S.B. has had access to the Mother’s computer and was able to read about aspects of the court case.

[129] Even during the assessment process, the Mother has stated to Mr. Hurwitz in front of the children that she still feels that the Father is “grooming T.B. for a sexual relationship”.

Forcing the child to reject the other parent

[130] The evidence did not suggest that the Mother forced the children to reject their Father. Rather the Mother is ambivalent about the children’s relationship with the Father. She clearly had concerns about various aspects of the Father’s care of the children and she chose to take a more passive role emphasizing that she needed to validate the children’s feelings. In so doing however, she fostered their rejection of the Father.

Referring to someone else as ‘mom’ or ‘dad’

[131] The Mother did not necessarily refer to someone else as ‘dad’ or encourage the children to do so. Nor was their evidence, as in some cases of alienation that she referred to the Father by his given name. However, T.B. suggested to the Father that Daniel Musselman may have taken on that role in the family. In her phone call with her Father on January 13, 2017, T.B. said that Daniel is “our new daddy”. In a later phone call after Valentine’s Day, she made a point of telling the Father that Daniel had sent them all gifts.

[132] Overall, the evidence I received and have summarized above supports Mr. Hurwitz’ findings. The Mother has engaged in a form of parental alienation and has contributed to the children’s rejection of their Father. However, she has not knowingly embarked on an alienation campaign as suggested by the Father. Furthermore, contrary to the Father’s implied assertion, the Mother is not solely responsible for this state of affairs; the Father’s own parenting style has contributed to the children’s rejection of him.

(iii) Father’s Contribution to the Rejection

[133] For his part, the Father was at a loss as to what to do as he realized that his relationship with his children was slipping away toward the end of the summer in 2016. He felt that he could not properly exercise his authority as a parent as he would be criticized for it. He adopted a more passive approach of not forcing the children, but this strategy was not successful.

[134] As the estrangement of the children solidified, the Father’s behaviour not just toward the Mother, but toward almost all of the professionals involved with the family, degenerated. He became fixated on the alienation narrative as the only source of the problem, despite advice from supportive neutral people that he had a role in the problem and therefore in the remedy.

[135] The CAS worker, Nancy Forrest, who was involved with the family from approximately the spring of 2016 to late 2017, recognized that the children’s emotional reaction to their Father at that time was extreme. She found that the children were not in an emotional place where they could be in the same room as their Father. While Ms. Forrest felt that the children were both feeding off their Mother’s cues and reacting accordingly, she also questioned whether the Father was able to read their cues and respond appropriately to their emotional needs. Ms. Forrest described the Father’s communication pattern as obsessive, fixated and circular and stressful for the children.

[136] During the assessment process, Mr. Hurwitz found that the Father was always very calm, patient, understanding and gentle with the children. Mr. Hurwitz never saw him get upset, rattled or impatient with them as many parents would have been with their extreme and oppositional behaviour. However, he too found that the Father struggled to find ways to engage with the children. The children appear to be infuriated by what the Father said to them. Mr. Hurwitz opined that, in part, this situation has arisen because the children have not seen their Father for such a long time and have had a chance to ruminate on their fears and worries. Moreover, no one is offsetting the negative narrative. Mr. Hurwitz also acknowledged when cross-examined by the Father, that the alienated parent can often present as stressed and display erratic behaviour that is not characteristic of that parent’s usual parenting style.

[137] The observation visit between the Father and the children that took place on August 15, 2017, demonstrated just how fractured the father-child relationship had become. Mr. Hurwitz described the visit as one of the more disturbing in his many years doing this work. The visit took place in a park. When the Mother dropped off the children, they immediately took off and ran into a ravine; Mr. Hurwitz had concerns for their safety. The Father was completely unable to control the children and Mr. Hurwitz ultimately had to intervene. The children swore at their Father and presented as panic stricken. T.B. picked up a piece of glass and threatened the Father with it. Both children were consumed with their anger toward the Father and with escaping from him. The Father brought gifts, including a water gun for the children. The children used the water gun to spray the Father, but when he made out that this was fun – as it should have been – they became incensed and threw the gifts on the ground. The Mother, to her credit, witnessed this last part and admonished them. Mr. Hurwitz found that this type of behaviour was an aberration for these children who are otherwise generally respectful and polite.

[138] Mr. Hurwitz’ view was that the Father requires considerable assistance in his parenting of the children.

[139] The Father is genuinely and understandably very hurt and upset by the state of his relationship with the children, but rather than acknowledge this directly, he has chosen to re-direct his energies into macro and systemic problems, allegations of bias. The Father confirmed that he felt that the CAS, OCL, Howard Hurwitz, Dr. Fitzgerald, the children’s babysitter, the two marriage counsellors, Sue Cook and the family court system were all biased against him. The Father has also acknowledged that he had either filed a complaint or was considering his options in filing complaints against the governing bodies of the professionals involved with him and his family that he perceived were biased.

[140] Mr. Hurwitz found that the Father tends to obsess, to focus dogmatically on irrelevant details, thereby losing the forest for the trees. The Mother gave examples of this, such as the Father needing to talk at length with S.B. about whether or not she had brushed her teeth. These same concerns were raised by the CAS worker, Nancy Forrest, who stated that the Father engaged in circular reasoning forcing his point of view. She warned the Father that he needed to stop grilling the children.

[141] The Father’s presentation before me was consistent with this. The Father insisted, despite my repeated corrections, clarifications and eventually admonishments in delivering soliloquies on the subject of parental alienation, rather than putting questions to the witness. Even allowing for the fact that he was self-represented, the Father took considerably longer to put in his case than did the Mother. I ordered the Father to write down his questions for the witnesses to assist him in being more concise and effective, yet for the most part, the Father insisted in “going off the cuff”. The Father became marginally more cooperative after he felt vindicated by the finding of parental alienation in Mr. Hurwitz’ report. All of this supported Mr. Hurwitz’ findings with respect to the Father’s personality and to some extent the Mother’s and the children’s experience with him as well.

[142] Mr. Hurwitz found that the Father would say one thing and do another. For example, Mr. Hurwitz told the Father that he did not have his permission to record the assessment process. Despite giving Mr. Hurwitz his assurance that he would not, the Father proceeded to do it anyway. Indeed, even after I made a ruling that the Father could not use those tapes for any purpose during the trial, the Father made several references to them in his closing submissions. Mr. Hurwitz felt that this dichotomy between what the Father says he will do and what he actually does creates real risk factors in terms of the Father’s parenting and makes it difficult to develop strategies to repair the relationship between the Father and the children.

[143] Furthermore, one can infer that these children who are in the middle of conflict and under immense pressure would find these aspects of the Father’s behaviour stressful, unpredictable and overwhelming.

[144] The Father stated that he was committed to self-development and self-healing, but there was little evidence that he had engaged in any kind of concerted and regular therapeutic counselling to gain insight into his own role in the children’s rejection of him or as to how he could participate in the repair. The Father had a few sessions with a therapist but appears to have focussed his energies and financial resources on proving his case that the Mother was an alienator.

[145] Thus, the evidence supported Mr. Hurwitz’ findings and his opinion that this is a case of hybrid alienation. There is no question that the Mother has played a significant role in the children’s rejection of their Father. Under the guise of wanting the children to be heard and wanting to support the children, she has failed to reality check their narratives as they pertain to the Father. However, I do not find that she has actively and wittingly pursued a course of alienation. The Father’s communication style and behaviour, which had troublesome aspects prior to separation, has deteriorated significantly. The children have retreated to the safety and security of their Mother’s exclusive care. Although the Father purports to recognize his role in the children’s rejection of him, his approach throughout the trial and in his proposed draft order suggest that what he really believes is that the Mother is the one responsible and that she needs to be sanctioned.

(d) T.B.’s Disclosure

[146] Despite the somewhat bleak picture painted above, there might have been more hope for a speedy reintegration of Father and children, were it not for T.B.’s disclosure on March 3, 2017, that the Father showed her inappropriate material of a sexual nature. This disclosure has made it difficult for the Mother to genuinely support a relationship between the Father and the children. For this reason, among others, I have dealt with T.B.’s allegations in some detail below.

[147] On December 20, 2016, T.B. expressed a desire to see her Father and give him Christmas gifts even though her access had been sporadic of late and S.B. had not attended access for some time. The Mother agreed to the visit and it was arranged that T.B. would stay overnight.

[148] The Mother dropped T.B. off to the Father at their usual exchange location, the police station. The Father first took T.B. to dinner at a local restaurant. The Father acknowledged that T.B. was teary and asked to go home to her Mother, but he encouraged her to make her decision after dinner. He told T.B. that if she decided to go to his place after dinner, she would have to stay overnight as it would be too late to return her home. T.B. ultimately agreed to go to the Father’s apartment and to stay overnight. When they got to the apartment, T.B. brushed her teeth and put her pyjamas on. They played T.B.’s special version of snakes and ladders and T.B. got ready for bed. The Father’s evidence was that they did not watch television or watch anything on the computer; he said that he would not have permitted it as it was already late and it was a school night.

[149] Sometime later, T.B. became very upset; she was crying and said that she wanted to go home. The Father tried to encourage her to stay by saying that she had made her choice at the restaurant, but ultimately, he said that he felt that she was too distressed and he called the Mother around 10 p.m. The Mother asked the Father if he could bring T.B. home because S.B. was asleep, but the Father was concerned about breaching the court order for pick-up and drop-offs at the police station, so the Mother came to his apartment with S.B. When S.B. saw the Father, she said: “I will fucking cut your head off”.

[150] When they got home, the Mother asked T.B. what had happened, but T.B. said that she just wanted to go to sleep.

[151] Some months later on or about March 3, 2017, Daniel Mussleman was babysitting the girls when T.B. made her disclosure. According to Mr. Musselman, T.B. spontaneously disclosed that at the visit on December 20, 2016, her Father showed her a video with naked men and women doing the kind of thing that makes babies. Mr. Musselman understood T.B. to be referring to intercourse. Although he acknowledged that the CAS had an obligation to obtain first hand disclosure, Mr. Musselman did not contact the CAS himself, and instead he told the Mother and suggested that she should call the next day when their regular worker would be available. The Mother did not contact CAS until March 9, 2017, and only after she had questioned T.B. as to what happened and only after speaking with her lawyer.

[152] Although Mr. Musselman has worked as a social worker for a number of years for the OCL, he was not qualified to give expert opinion evidence at this trial and I accord his evidence no additional weight.

[153] Mr. Musselman struggled somewhat to define his relationship with the Mother. He denied that he was a parenting coach, but this is exactly how he described himself to Danielle Mink and how the Mother had described him. At some point, he and the Mother, entered into a romantic relationship. Mr. Musselman attended court with the Mother on a number of occasions prior to the trial and he felt that the Mother was doing a better job of standing up for herself now that he was involved. It was also clear from his demeanour that Mr. Musselman disliked the Father. When he was asked about the Father’s proposal for shared parenting, Mr. Musselman scoffed saying, “it was ridiculous”.

[154] Although Danielle Mink had released her report long before T.B.’s disclosure was made, she remained involved with the family. In his evidence, Mr. Musselman stressed that the information that he had provided to Danielle Mink was not based on his professional opinion, but rather, on what the Mother had told him or his own observations. However, under cross-examination Mr. Musselman acknowledged that he had in fact proffered a number of opinions, including that he believed that this was the first of the Father’s efforts to groom T.B. for a sexually improper relationship.

[155] Nancy Forrest was the CAS worker responsible for investigating T.B.’s disclosure. Ms. Forrest interviewed T.B. with her Mother present. T.B. was uncomfortable and wanted to whisper to Ms. Forrest. The Mother prompted T.B. to tell Ms. Forrest about the “worries she wanted to share” about “[the Father] showing you s.e.x. on YouTube”. T.B. was upset and wanted to skip the details.

[156] Nancy Forrest stated that the investigation was tainted from the beginning due to the lengthy delay in reporting, the fact that the Mother and S.B. had both talked to T.B. about her disclosure, and the fact that the Mother’s lawyer had notified the Father of the allegations before the CAS had interviewed T.B.

[157] Ms. Forrest verified that there was no couch and TV in the same room in the Father’s apartment contrary to T.B.’s description. T.B. also described coloured drapes in the room whereas the Father’s home had white blinds. These details of the investigation had not been made known to the Father before the CAS visited his apartment. T.B.’s description of how the Father searched on YouTube on his TV aligned with the Father’s own demonstration, but T.B.’s evidence was overall very confusing according to Ms. Forrest.

[158] According to Ms. Forrest, when S.B. was interviewed, S.B. was very vocal about the term “abuse” and she described herself as not being as easily victimized as T.B. S.B. had told T.B. that she needed to tell mum about the incident so that “[they could] live with her”. Ms. Forrest felt that S.B.’s influence over T.B. was strong enough to call into question whether T.B.’s disclosure had been embellished.

[159] Ms. Forrest confirmed that S.B. said that “nothing of that sort [sexually improper behaviour]” had happened with the Father.

[160] Ms. Forrest noted that unlike with T.B.’s allegation that her Father had punched her in the stomach, she has never recanted the incident.

[161] Interestingly, the Mother’s initial reaction to T.B.’s allegation was to dismiss it as untrue. As time passed however, even though T.B.’s allegation was not verified by the CAS or the police, the Mother has taken the position that not only did it happen, but that the Father was grooming T.B. for further sexual abuse. Although she denied it, I prefer Mr. Hurwitz’ evidence that she went as far as to state this view in front of the children. In her evidence at trial, the Mother stated that she was, “disappointed, not happy about T.B. not being believed...”

[162] The Father vehemently denied that he ever showed T.B. pornography or acted in a sexually inappropriate manner with either child.

[163] The parties both acknowledged that they both watched pornography, often together, during the marriage. There was no suggestion of any sexual impropriety during the marriage.

[164] The psychological testing conducted as part of the custody and access assessment did not reveal any concerns of a sexual nature with the Father.

[165] Although T.B. has not recanted this particular allegation, she has a history of making up dramatic events. T.B. admitted that her Father had not physically hurt her despite painting a picture of him punching her in the stomach at the Rainbows program. The Mother admitted that T.B. will often threaten to hurt herself if she is made to do something; although she then qualified that she only does this in relation to things to do with her father. However, the Father put an example to the Mother wherein T.B. threatened to “throw herself down the stairs” in relation to something that happened at the Mother’s home and at that time T.B. indicated she wanted to go to her Father’s home as she felt safer there. The Mother dismissed this threat as simply part of having a tantrum. T.B. also threatened self-harm during the assessment process – something that the Father was very concerned about – but both the Mother and Mr. Hurwitz felt that this was not a genuine threat.

[166] Mr. Hurwitz noticed that T.B. said a lot of things that were not accurate and that one needs to be very cautious in taking things that the children say at face value. He postulated that T.B. may be making these comments about her Father showing her inappropriate sexual content as part of an attention-seeking dynamic.

[167] Mr. Hurwitz noted T.B.’s disclosure has taken on a heightened role for both the Mother and the children. According to Mr. Hurwitz, the Mother believes that the Father is capable of abusing T.B. and she has conveyed her fears to the children. Although Mr. Hurwitz found no verification for the incident, the Mother continues to reinforce the incident as having occurred, as she wants to go on record as supporting the children.

[168] A review of all of the evidence does not suggest that the children are at risk of sexual harm from the Father and this issue was not a factor in my overall findings with respect to the appropriate parenting plan.

(e) The Children’s Views and Preferences

[169] S.B. and T.B. have taken the position that they do not want a relationship with the Father. They are scared of him and they feel unsafe in his care. Many of the witnesses, including the Father, described the extreme and to some extent unreasonable animosity that the children have toward the Father. These views and preferences manifested in dramatic form in both of the observation visits between the Father and the children during the custody and access assessment.

[170] T.B., however, has indirectly expressed a wish to connect with the Father. On one occasion, even after their relationship was deteriorating, T.B. initiated a call to the Father on his birthday (November 19, 2016). She said that she wanted to visit him, and they talked about what kind of cake he would like. She sang happy birthday to him at length. She tried to prolong the call with him as long as possible. The Father was very appropriate, saying that he and mummy would need to work it out and arrange for a meeting place. The Mother admitted that in that call T.B. was not upset, but attributed this to her feeling safe on a call.

[171] On several other occasions, after T.B.’s last visit, but before she made the disclosure to Daniel Musselman, T.B. initiated calls to the Father usually when the Mother was not home.

[172] The Father played a recording of a call between him and T.B. on January 13, 2017. T.B. clearly wanted to keep a connection with her Father, but at the same time she repeatedly referred to him as “asshole” and “cry baby”. She told her Father that Daniel Musselman was her new daddy. She also said that she needed her Father to make things better for her and at the end of this hurtful and somewhat ranting call, T.B. asked her father for his new number so that she could call him back.

[173] On February 21, 2017, T.B. had another lengthy call with her Father. She complained that she did not enjoy her trip to the U.K. with her Mother as her Mother kept telling her what to do and what not to do. Otherwise, she sounded very relaxed and natural. T.B. also made a point of telling her Father that Daniel Musselman had sent them Valentine’s Day gifts while they were away.

[174] These phone calls suggested that T.B. still wanted a connection to the Father.

[175] The children’s views and preferences, while clear and consistent, are not entirely independent. The children’s feelings about their Father have been influenced by the Mother. T.B.’s views and preferences have been further influenced by her sister, S.B., who exerts a powerful influence over her; as Mr. Hurwitz noted some of T.B.’s complaints about the Father appeared rote and rehearsed. However, at this juncture, the children have not seen the Father for almost two years and they have had minimal contact. Their extreme negative feelings toward him have been magnified and even if not entirely reasonable, they impact on the issue of what parenting arrangement is in their best interests.

4. Summary

[176] The overarching test in any order for custody and access is what is in the best interests of the children, the particulars of which are set out in s. 16(8) of the Divorce Act and s. 24 of the CLRA, and have been reproduced above.

[177] In terms of custody, the parties have little or no communication at present and the Mother has functioned as the sole custodial parent for almost two years. The parties’ track record with respect to decision making even prior to the separation was very poor. The Father’s communication style and his approach to decision making in particular would make joint custody impractical and unrealistic. Having regard to the principles set out in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (C.A.) and Giri v. Wentges, 2009 ONCA 606, I find that it is in the children’s best interests for the Mother to have sole custody.

[178] The primary concern for the court is the relative ability and the willingness of the Mother and the Father to provide the children with guidance and education, the necessaries of life and to generally act as a parent to them. Part of acting as a parent involves supporting the other parent’s relationship with the children.

[179] The children have always been closely bonded to the Mother and they continue to have a warm and loving relationship with her. The Mother remains very engaged in the children’s day-to-day activities. She seeks to provide varied cultural, artistic and physical activities for them. The Mother is, for the most part, able to manage and appropriately discipline the children. The children have generally speaking thrived in her care; they are doing well in school and they have appropriate social interactions.

[180] The Mother has not been supportive of the Father’s relationship with the children and the evidence suggests that she has played a significant role in the extreme rejection of the Father by the children. Her attitude is in part a function of the conflict that she experienced during the marriage with the Father as well as her own vulnerabilities that exist independent of the marriage.

[181] T.B.’s disclosure, likely combined with Mr. Musselman’s expressed opinion that the Father was grooming T.B., has made it even more difficult for the Mother to overcome her reluctance to facilitate contact. The evidence before me suggests that the Father is not a risk to the children in this regard.

[182] I do not find that the Mother was on a “campaign of alienation”. Rather, I accept that even as this lengthy trial progressed over three trial sittings, the Mother has gained some genuine awareness into her role and that she is prepared to take steps to support the children in a relationship with the Father.

[183] For these reasons, among others, it is not in in the best interests of the children to alter the current status quo wherein the children reside primarily with the Mother.

[184] There were some concerns about the Father’s parenting in the period prior to separation, but for the most part, he had a healthy, warm and loving relationship with the children. He played an important and positive role in all aspects of the children’s lives. He participated with the children in learning opportunities and in many play activities. The children reciprocated his love and warmth during the pre-separation period.

[185] The Father still demonstrates positive parenting; he displayed incredible calm and patience in those few and very trying interactions with the children. However, calm and patience is not enough now. The children’s reaction to the Father is extreme and at times dangerous for the children in marked contrast to their presentation elsewhere. When interacting with the Father the children have been almost wild and ungovernable. The Father has no meaningful credibility or authority with the children at present. Despite his best efforts, the Father appears unable to control the children and this leads to serious concerns for the children’s safety if they are left in his care unsupervised.

[186] Of further concern, is that the Father does not yet appear to have an awareness of what the children need in order to bridge the gap, and as a result, he is not able to undertake that role at this time without certain safeguards in place. One of the most significant impediments to regularizing the Father’s parenting time is his own failure to recognize or accept any role in the state of his relationship with the children. The only narrative that he accepts is that the Mother is a parental alienator. While he holds to this rigid belief, it will be difficult for him to empathise with the children’s own feelings and experiences as he is more likely to discount them as the product of their Mother’s alienation.

[187] An additional challenge in terms of the prospects for reunification between the Father and the children is that despite recommendations from a number of professionals involved, neither the Mother nor the Father has engaged in any course of meaningful therapy.

[188] The Father’s proposed order is also indicative of his lack of insight into the issues facing his children. He seeks an order that the children be removed from the Mother’s care and placed with third parties (none of whom gave evidence at the trial or indicated their commitment to the plan). This plan does not recognize the obvious positive emotional connection that the children have to the Mother and the negative emotional impact that the change in custody would have on the children. This proposal focusses more on punishing the Mother than reintegrating the Father and children.

[189] Mr. Hurwitz noted that children who are alienated from another parent often struggle in adult life with their own intimate relationships and can experience mental health challenges. It is therefore imperative that both the Mother and the Father start to engage in the significant work required to repair the Father’s relationship with the children. The Mother must now take a more proactive role in supporting the children in reconnecting with the Father. The Father must be prepared to accept some responsibility for his own role in the estrangement, rather than assigning blame exclusively to the Mother.

[190] Mr. Hurwitz recommended that the Father participate in therapeutic access sessions with Sue Cook or another qualified therapist pertaining to reintegration therapy. He also recommended that the Mother get individual therapy and that the children continue art therapy.

[191] There is some debate in the current case law with respect to the court’s ability to order parties to participate in therapy, such as reintegration therapy. This dichotomy is succinctly summarized by Audet J. in her recent decision in Leelaratna v. Leelaratna, 2018 ONSC 5983, at paras. 40-42:

There is significant controversy at this time in Ontario about whether or not courts have jurisdiction to make therapeutic orders compelling parents and children to participate in counselling or therapy, including reunification therapy (“therapeutic orders”). The caselaw appears to be divided into three distinct groups: cases where the court has found that it did not have jurisdiction; cases where the court found that it had jurisdiction, and; cases where the court has assumed jurisdiction (whether or not it made the order), without explanation.

In cases where the court has concluded that it did not have jurisdiction to make therapeutic orders (a minority of cases), the judges have generally relied on Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 194 O.A.C. 106, as authority for this conclusion (see Scott v. Lloyd, 2014 ONCJ 639; Zaidi v. Qizilbash, 2014 ONSC 201; Imineo v. Price, 2011 ONCJ 584, 14 R.F.L. (7th) 193; Barrett v. Huver, 2018 ONSC 2322, 9 R.F.L. (8th) 244). In Barrett v. Huver, the court declined making an order compelling the parties to attend reunification therapy (the multi-day family intervention “Families Moving Forward”) on the basis of Kaplanis, but also on the basis that such reunification therapy was a “treatment” as defined in section 10 of the Health Care Consent Act, 1996, S.O. 1996, c.2, Schedule A (the “HCCA”), which required the consent of all parties and, presumably, of the child.

Judges who have found to have jurisdiction to make therapeutic orders have generally relied on sections 24(2), 28(1)(b) and 28(1)(c) of the CLRA (See Testani v. Haughton, 2016 ONSC 5827, 92 R.F.L. (7th) 226; Silver v. Silver, 2017 ONSC 5177; McClintock v. Karam, 2017 ONSC 6633, 1 R.F.L. (8th) 142; E.H. v. O.K., 2018 ONCJ 412; Berhanu v. Awanis, 2018 ONCJ 505) or on its inherent parens patriae jurisdiction (Kramer v. Kramer (2003), 2003 CanLII 64318 (ON SC), 37 R.F.L. (5th) 381 (Ont. S.C.) and E.T. v. L.D., 2017 ONSC 4870, 98 R.F.L. (7th) 324).

[192] I agree with Audet J. when she states at para. 52 of Leelaratna:

A large and liberal interpretation of the statutory and regulatory powers conferred upon the courts to make a wide variety of orders with regards to parenting, including therapeutic orders, is also entirely consistent with the courts’ duty to promote the best interests, protection and well-being of children. As is the case here, there are often no legal solutions to family problems. Therapeutic orders can be very effective tools to help the family move forward, reduce the parental conflict, and help children transition through the emotional turmoil of their parents’ litigation in a healthier way.

[193] Many of the factors set out in Leelaratna and Testani v. Haughton, 2016 ONSC 5827, 92 R.F.L. (7th) 226, that would support an order requiring the parents to participate in therapy are present here. There was comprehensive expert evidence outlining the complex nature of the children’s rejection of the Father and the role of both of the parents in that rejection. The evidence suggested that a therapeutic intervention that involved the children and the parents would be the optimal solution.

[194] Audet J. goes on to discuss, the perhaps thornier issue, of whether consent is required to participate in therapy pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A. In this case, it is not necessary for me to wade into this debate because the parties agree in principle to participate in a therapeutic process designed to repair the children’s relationship with the Father.

[195] The children and the Mother have a good relationship with Sue Cook. The Father does not have confidence in her and he seeks to engage a new reintegration therapist. The Father proposes to retain someone located outside of Barrie because of the potential for bias, including possible contamination (the Father’s words) by Daniel Musselman. He proposes Dr. Barbara Fidler, although I note that he was already expressing concerns about her professional relationship with Howard Hurwitz, who the Father now views as biased. Dr. Fidler is known to the court as having expertise in parental alienation and reintegration therapy, but her practice is located in downtown Toronto.

[196] The Mother is agreeable to engaging a therapist other than Sue Cook provided that the Father is solely responsible for the cost. The Father committed to paying the difference between the cost of Dr. Fidler and the cost of a local therapist. He also committed to paying the travel expenses associated with a new therapist.

[197] I have concerns that, as soon as the therapist takes issue with the Father’s position, he will lose faith in the process and terminate it either by refusing to pay or refusing to engage. This has certainly been his pattern with almost all of the numerous professionals he has worked with to date. However, therapeutic access would be immensely helpful for the children and for the parties and as the parties have consented to participate, I am prepared to make the order.

[198] Rather than making a complex cost sharing arrangement that could lead to conflict or delay, I am ordering the Father to be solely responsible for Dr. Fidler’s fees including any of Dr. Fidler’s travel expenses. Each party shall be responsible for paying for the cost of transporting themselves and/or the children to Dr. Fidler, as required by Dr. Fidler. The Mother bears some responsibility for the Father’s fractured relationship with the children and she must assist with the cost of the therapeutic access but to a more limited degree. She shall reimburse the Father for 20 per cent of the amount paid to Dr. Fidler or another mutually agreed upon therapist, up to a maximum of $5,000.

[199] As so many other professionals have also recommended, both the Mother and the Father need to seek out regular therapy for themselves, in order to gain insight into their contribution to the children’s estrangement from the Father and what they can each do to repair the relationship. A party’s commitment to regular therapy with a qualified therapist will be a factor in the review of the Father’s access to the children.

[200] It is strongly suggested that each party provide their own therapist with a copy of Mr. Hurwitz’ assessment, and their own personal psychological assessment report conducted by Dr. Fitzgerald. It is also recommended that each party provide their therapist with a copy of this decision.

[201] Although the trial evidence is not subject to any sealing order and is therefore open to the public, as it was raised with me in a 14B motion after the conclusion of the trial, I do not order, but would recommend, that parties not disseminate the various reports filed in this case except as necessary for the above noted therapeutic relationships.

[202] The Mother says that she is now prepared to do what is required to facilitate reintegration and based on the evidence, I take her at her word.

[203] It is in the children’s interests to reconnect with the Father immediately in a safe, neutral environment. This can best be accomplished through visits at a supervised access center. The Father expressed skepticism that supervised access will achieve the desired goal of reuniting him with his children, but he acknowledged that it makes sense at this time.

[204] Mr. Hurwitz’ opinion, which I accept, is that the Father’s relationship will need considerable time to be repaired, as both parents and the children are experiencing deep seated issues that will take time to unwind and repair. Mr. Hurwitz suggested that supervised access run for a period of at least twelve months. This shall run concurrent with the anticipated therapeutic access.

[205] The Mother asks that the Father’s parenting time with the children be expanded per the therapist’s recommendations. However, it is not appropriate for the court to abdicate or delegate its decision making authority to a third party in this way: Ontario (Official Guardian) v. Strobridge (1994), 1994 CanLII 875 (ON CA), 18 O.R. (3d) 753 (C.A.); M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). Rather, the views of the children’s therapist in addition to the reports from the access center will be considered as important additional evidence in any review of access.

[206] Given the nature and sensitivity of some of the evidence in this case, it is in the best interests of the children and the parties for them to be referred to by their initials in this decision. See: P.(B.C.) v. P.(A.R.), 2016 ONSC 4518, 87 R.F.L. (7th) 219.

[207] In conclusion, both parties presented as loving and devoted parents to S.B. and T.B. Each parent has an opportunity now to reflect on their own role in the conflict to which the children have been exposed and their contributions to the children’s extreme rejection of the Father.

[208] The Mother must take steps to support and encourage the girls to have a healthy, positive relationship with the Father. This will not be easy for her. She will need to be proactive in reality checking with the girls and herself, to ensure that her own narratives are not being imposed upon the children.

[209] In the Father’s case, I sincerely hope that he takes this trial and the ultimate decision as not only a vindication of his long-held concerns about alienation, but also, as a warning that unless his own behaviour changes significantly, there will be no repair to his relationship with his children. This would not be in the best interests of his children who need him in their life.

[210] Neither party addressed child support in their draft orders. I have made my temporary order dated November 21, 2017 final subject to re-adjustment next June.

III. Order

[211] The Mother shall have sole custody of the children, S.B. born April 12, 2007, and T.B. born June 16, 2010, and primary residence of the children shall remain with the Mother.

[212] The parties shall jointly retain Dr. Barbara Fidler or another mutually agreeable therapist to conduct therapeutic access with the goal of repairing the children’s relationship with the Father. The Mother and the Father shall participate in the therapeutic process as recommended by the jointly retained therapist. The Mother shall also ensure that the children participate in this therapeutic process as recommended by the jointly retained therapist. Any therapeutic access is in addition to the supervised access referred to below. The parties shall provide Dr. Fidler or another mutually agreeable therapist with a copy of Mr. Hurwitz’ report, Dr. Fitzgerald’s psychological assessments and a copy of this decision.

[213] The Father shall be solely responsible for paying the therapist referred to above. The Mother shall reimburse the Father for 20 per cent of the fees paid by him within 30 days of being presented with a copy of a paid invoice. The Mother’s obligation to reimburse the Father shall not exceed $5,000.

[214] Commencing forthwith, the Father shall have supervised access with the children for three hours per week at the Supervised Access Centre (“SAC”) closest to the Mother’s home, subject to the SAC availability and as arranged by the SAC coordinator. The Mother shall be responsible for initiating intake. Each party shall pay the cost of his/her individual intake and the cost of each visit shall be shared equally.

[215] The Mother shall, to the extent possible, schedule doctor’s appointments, dentist appointments, birthday parties, playdates, therapy sessions etc. outside of the Father’s access time. If the Father’s access visit falls on the child’s birthday or the Mother’s birthday, on a statutory holiday or on another similar special occasion, assuming the SAC is otherwise open that day, the visit shall proceed.

[216] The Mother may travel with the children for up to three weeks per calendar year during which time the Father’s access will be suspended.

[217] The Father may call the children once per week, on a day and time selected by the Mother in her sole discretion; she shall make best efforts to set the same time and day each week. The Mother shall encourage both of the children to speak at least briefly with the Father. The telephone calls shall not be recorded by either party and the Mother shall not permit the children to record the calls.

[218] The Mother shall forthwith arrange for the children to engage in regular art therapy.

[219] The parties shall utilize “Our Family Wizard” for the purposes of all communication, except in the event of an emergency when they may phone or text.

[220] Both parties shall have the right to consult with and obtain information directly from the children’s teachers, doctors or other professionals about the health, education and general welfare of the children. The Mother shall keep the Father apprised of the name and contact information for any and all professionals who are working with the children. The Father is expected to obtain information including school calendar, school and sport notices directly from the professionals, and if necessary, the Mother will execute any documentation necessary to ensure that the Father may obtain this information directly.

[221] Both parties shall keep each other informed about any significant issues relating to the children that arise during their time with the children.

[222] The parties shall keep each other informed as to their residential address and telephone number and shall notify the other whenever this information changes. Each party shall provide the other with at least 90 days advance written notice of a planned change of residence 50 km’s outside of Simcoe County.

[223] Neither party shall attend at the residence of the other without the prior written consent or court order.

[224] Neither party shall speak negatively about the other party in the children’s presence and both shall make their best efforts to prevent all third parties from doing so as well.

[225] The Mother is permitted to travel with the children outside of Canada without the consent of the Father. The Mother shall provide a detailed itinerary of the trip two weeks in advance and confirmation of return date including flight and/or transportation details. The Mother is permitted to obtain or renew a Canadian passport for the children without the consent or signature of the Father.

[226] The Father’s access to the children may be reviewed at the request of either party 12 months after the date of this order. Upon the review, the court may consider the following:

(a) Any program of therapeutic access mutually agreed upon by the parties and the commitment of each party and the children to same;

(b) The duration and regularity of therapy received by the children;

(c) A report from the children’s therapist;

(d) Any course of therapy undertaken by the Mother to assist her in understanding her role in the children’s relationship with the Father;

(e) Any course of therapy undertaken by the Father to assist him in understanding his role in the children’s relationship with him;

(f) The notes from the Supervised Access Centre;

(g) The consistency and nature of the scheduled telephone calls between the Father and the children; and

(h) Any updated s. 30 assessment report.

[227] When a review of access is initiated by issuing an Application or Motion to Change, either party may bring a 14B motion prior to a conference and prior to the close of pleadings to request that Howard Hurwitz be retained to provide an updated assessment pursuant to s. 30 of the CLRA.

[228] I am seized of any motions relating to implementation of this order for the period of 18 months. The parties shall file materials with the court in Barrie but shall be required to attend before me in Oshawa on a date to be arranged through the trial coordinator in Oshawa.

[229] My temporary child support order dated November 21, 2017 shall be made final.

[230] Commencing June 1, 2019, the parties shall exchange their Notices of Assessment and they shall then adjust the Table child support and their proportionate contribution to the special and extraordinary expenses for the ensuing twelve months.

[231] The Mother shall provide written submissions with respect to costs not to exceed five pages excluding any bill of costs or offer to settle on or before December 14, 2018. The Father shall deliver his responding submissions not to exceed five pages excluding any offer to settle on or before January 7, 2019. The Mother’s reply shall not exceed two pages and shall be delivered on or before January 14, 2019. The parties shall include in their submissions their position with respect to the re-apportionment of the cost of the custody and access assessment. All costs submissions shall be filed with the court in Barrie with an electronic copy.

JUSTICE L.E. FRYER

Released: November 22, 2018