COURT FILE NO.: 4967/12

DATE: 2019 April 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

G.J.B.

Self-represented

Applicant

• and -

D.R.K.

Ryan Bonin, for the Respondent

Respondent

HEARD at Welland, Ontario:

April 3, 4, 8, 9, 10 and 11, 2019

The Honourable Justice R. J. Harper

REASONS FOR JUDGMENT

Issues

[1] There are a two motions to change before the court one brought by the Applicant, G.J.B. The other brought by the Respondent, D.R.K. Both motions seek to change the Order of Justice MacPherson dated June 9, 2011.

[2] The G.J.B. motion seeks to:

a) Terminate spousal support;

b) In the alternative to lower the spousal support and change the requirement to keep certain health benefits for D.R.K. as a result of a material change in the circumstances;

c) An order restraining the Respondent, from disparaging the Applicant, to any person, including making disparaging comments about the Applicant on Facebook or any other social media site or any in messages to the children or any other person.

[3] The D.R.K. motion seeks to:

a) Delete the clause that requires spousal support to be paid until the “Applicant dies”. It was conceded by counsel for D.R.K. that this request is not the proper subject of a material change motion. Not only was the death of both parties contemplated at the time of the Order such that it formed part of the agreement of the parties. It was not just foreseeable or foreseen by the parties;

b) An order requiring G.J.B. to pay for health benefits that existed at the time of the Order of Justice MacPherson dated June 9, 2017.

The Order of Justice MacPherson

[4] The Order of Justice MacPherson that is sought to be changed by both parties was made on consent of the parties. The relevant portions of Justice MacPherson’s Order dated June 9, 2011 are as follows:

Spousal Support

3. Commencing on the first day of June, 2011 and on the first day of each and every month thereafter, the Applicant shall pay to the Respondent for her support and maintenance the sum of $1,280.00 each month in advance on the first day of each month until one or more of the following occurs:

a) the Respondent remarries or cohabits;

b) the Applicant dies; or

c) the Respondent dies.

Material Change in Circumstances

4. Paragraph 3 shall be varied if there is a material change in circumstances even if such change was foreseeable or foreseen by the parties at the time this Order was made.

Great West Life

6. The Applicant shall maintain the Respondent on his health and medical benefits plan No. 20528 with Great West Life available through his employment with H[...] Utilities, retroactive to the date of separation and notwithstanding that the parties shall be divorced. The termination of these benefits shall constitute a material change in the circumstances at which time the quantum of spousal support shall be reviewed.

Background of the Parties

[5] G.J.B. and D.R.K. were married on […], 1999.

[6] They were separated on March 12, 2009 after 10 years of marriage. They have lived separate and apart now for 10 years. They were divorced on June 9, 2011.

[7] They have two children of the marriage, namely K.M.K.B., born […], 2002 (16) and Q.E.K.B., born […], 2000 (19).

[8] The children were placed into the care of G.J.B. in or about the month of March 2010, after the Family and Children’s Services of Niagara apprehended them from the mothers care. He was granted sole custody of the children on October 11, 2011.

D.R.K.’s Background

[9] D.R.K. was born on […], 1969. She is presently 49 years old. Prior to her marriage with G.J.B., she had graduated with an Honors Bachelor of Science degree from Brock University in 1993. Her science degree was in the area of geology. She obtained a diploma in Business Management, from Niagara College in 1996. Prior to her working on her Master’s degree she interned in the Collection Division at Niagara College for the Environmental Science for 6 months. This was followed by a 6 month internship with the National Centre of Earthquake Engineering and Research and Corporate Research in the Geology field. She went on to obtain her Masters of Library Science and Information Science from the University of Buffalo in 1998.

[10] After she was married to G.J.B, she was offered a job interview with the Canadian Space Centre in Quebec. She did not attend the interview. She stated that her husband would not take a leave of absence from his work. That job would have paid approximately $68,000.00 in or around 1999.

[11] She applied to become a librarian with the Catholic School Board subsequent to that. She did not pursue that as she became pregnant with her first child. After the birth of her first child she did not work outside of the home other than doing volunteer work from time to time.

D.R.K.’s Health

[12] D.R.K. has multiple physical ailments. She stated that she has been diagnosed as an “incomplete quadriplegic”. D.R.K. elaborated on many of her conditions in her testimony. Some of her medical conditions are as follows:

a) She was diagnosed at approximately age 5 with Type I Diabetes.

b) She had to undergo surgery in or about February 2002 for a compressed disc at the C5- C6 level;

c) Muscle spasms that make it difficult for her to walk;

d) Loss of autonomic nerve functioning that impacts on her breathing, her ability to cough and her mobility;

e) Mood disorders, anxiety and depression;

f) Chronic pain;

g) PTSD;

h) She states that she is deaf. She could hear during the trial with the use of hearing enhancement equipment supplied by the court. She stated that she does not have a hearing aid because she needs to have her ear drum surgically repaired. However, given her complex medical health issues she cannot find a surgeon who will do the surgery;

i) She states that her ability to concentrate for any period of time longer than 45 minutes to one hour is severely compromised.

G.J.B.’s Health

[13] There is no evidence that G.J.B. has any medical issues other than his claim that he has stress and anxiety that he attributes to this extraordinary protracted litigation and the conduct of D.R.K. highlighted by years of her denigrating and disparaging him to his children and others. He testified that he is still receiving counselling for his stress and anxiety.

Health Benefits

[14] At the time of the Order of Justice MacPherson, that is the subject of this motion, G.J.B. was employed at H[...] Utilities. The Order for him to pay spousal support was based on his annual income of $85,000.00. While he was employed at H[...], he had health benefits with Great West Life (GWL). These benefits covered much of the significant health care costs of D.R.K.

[15] G.J.B. changed his employment in October of 2017. The reasons he gave for this change will be expanded on later in this judgment. His new employer was C[…] (C[…]). He would be earning approximately the same annual income that he was making at H[...] at that time. He also made arrangements for C[...] to continue to cover the health benefits for D.R.K. According to G.J.B., C[...] was going to make every effort to try and continue her coverage with their provider, SunLife that she had with GWL.

Protracted Litigation

[16] When the parties separated on March 12, 2009, G.J.B. left the home. He was charged with assault on D.R.K. He claimed that he slapped his then wife and he admitted to the police that he did this. G.J.B. pled guilty to the assault. The underlining facts in the guilty plea indicated that he slapped D.R.K. He was given a conditional sentence. He could not communicate with her nor be within a specified distance of her for a specified period of time. He could have access to his children as ordered by the family court. G.J.B. did attend counselling and a course in anger management, Pathways to Peace and a PAR Program.

[17] According to G.J.B., D.R.K. has embarked upon a course of conduct since the incident of March 12, 2009 that has a constant and pervasive theme of disparaging him to his children and others, including his former employers. She attempted to instill fear in his children about him as a father. In his initial application in this matter, he claimed that following March 12, 2009, D.R.K. installed new windows in the basement of their home for security and installed an alarm. He also alleged that she told the children that if the Applicant breaks in, they are not to run and hide but they are to run out the door furthest away from him so that he can’t harm them.

[18] According to G.J.B., he has spent over $200,000.00 in legal fees since March 12, 2009. He represented himself at this trial.

[19] D.R.K. stated that she spent approximately $150,000.00 that she had to borrow in order to assert her claims in the litigation. D.R.K. admitted that she either consulted or retained 22 lawyers before she retained counsel who acted at this trial. She was given a legal aid certificate that allowed her to retain Mr. Bonin.

[20] The Family and Children Services of Niagara (FACS) apprehended the children from D.R.K. on March 3, 2010. The children were, at first placed in the temporary care of the paternal grandparents. That subsequently changed and the children were placed with the paternal aunt and uncle.

[21] When the child protection proceedings came back to court before Justice Taliano on December 21, 2010, Justice Taliano placed the children with the father (G.J.B.) on terms. Much of Taliano J.’s Endorsement of December 21, 2010 is important to detail, in these reasons, in order to get a better understanding of the evidence before me and my analysis of that evidence as it relates to the claim for a restraining order. It is also relevant to my determination of the reasonableness of G.J.B. changing his employment in 2017.

[22] Material parts of the Endorsement of Justice Taliano dated December 21, 2010 are as follows:

The Society now proposes to place the children in the temporary care and custody of their father subject to supervision of the Society on terms. The father supports the Society’s request.

The basis for the proposed order is that there is a material change in circumstances since the date of the original order. The father has attended for individual counselling and has completed courses recommended by the Society which include courses on parenting, anger management and partner assault. In the Society’s view, the father now demonstrates vastly improved parenting skills and has re-established a positive relationship with the children. In addition, he has acquired appropriate insight into effective discipline techniques and how to properly respond to his children’s needs. According to the Society, he is “child focused” and the Society notes a drastic difference in the father’s attitude and his understanding of his parenting obligations since the time of the assault. Importantly, the father is supportive of the mother’s access to the children. It is also clear to the Society, after monitoring a lengthy period of supervised access, that the children have no fear of their father and enjoy their time with him. The children do not want to lose their father, nor for that matter, their mother.

I agree that these factors constitute a material change in circumstances that require the court to re-evaluate the type of placement that is appropriate at this stage.

The mother proposes that the children be returned to her care or alternatively that they be placed in the care of her mother, L.K. In my view, it is not possible to adopt the mother’s plan. The “overwhelming” evidence of inappropriate behavior on her part is so serious that it is unthinkable to consider returning the children to her since the mother has not yet addressed the many issues that prompted the original apprehension. She does not recognize nor is she able to admit, that she has done anything wrong. Unlike the father, she has made no progress in even addressing, let alone resolving the issues, that led to the apprehension of her children.

With respect to her proposal that the children be placed with the maternal grandparent, there is evidence that the grandmother has aligned herself with her daughter against the father. On January 19, 2010 when dropping of the children for access with their father, in response to his simply saying “hello”. The grandmother called the father an “asshole”. This remark was likely heard by the children who were standing beside the caseworker who did hear it. Clearly the maternal grandmother shares the same animosity that fueled the alienation of the father by the mother and she exhibited it in front of the children, therefore, this alternative plan must also fail.

[23] Unfortunately the findings and the comments of Justice Taliano on December 21, 2010 did not have any impact on D.R.K. She continued her course of conduct that has been driven by “her animosity that fueled the alienation of the father”. Her conduct since December of 2010 has been a consistent and constant barrage of disparaging the father to others. The significance of her conduct is that the stress upon the father and the children has increased over time. This stress is a material consideration in the determination of whether or not G.J.B. was reasonable in changing his employment in 2017 given his financial responsibilities that flowed from the Order of Justice MacPherson, dated June 9, 2011. I will elaborate further on this issue later in these reasons.

The Increased Stress on the Father and the Children

[24] After the ruling of Justice Taliano on December 21, 2010, the mother continued to take no responsibility for any problems that she had nor did she have any insight into the problems she was creating for her children and the father who was charged with their care.

[25] The mother created a group Facebook site as well as a personal Facebook site that is replete with seriously problematic comments by D.R.K. The problems created by her comments are multifaceted. They not only relate to the increased stress of the family they also go directly to G.J.B’s employability and his efforts to retrain.

[26] D.R.K. testified that she created group internet site that had a restricted membership of women who are or have been the subject of domestic violence. According to her, prospective members needed to answer certain questions in order for D.R.K. to be satisfied that members of the group were victims of domestic violence. It was D.R.K.’s intention to allow the opportunity for women in such circumstances to share their stories and exchange research and other important information about domestic violence. The group was also to operate as a lobby group in order to effect changes in laws and systems both in Canada and other countries.

[27] It must be made very clear that it is my view that domestic violence is a serious and all too prevalent issue in our society. The negative impact of domestic violence on the victims and the children who are witnesses to this violence can be devastating. It must be taken seriously. All of the evidence must be scrutinized and fairly balanced along with the complicated need to achieve a result that will allow families, especially the children, to move forward and develop healthy relationships within the family and with others.

[28] The goals of the group, set up by D.R.K. are lofty and important. However, I find that, in this case, D.R.K. lost sight of her own circumstances and the needs of her children in her pursuit of her goals. Her efforts within both the group site and her own personal site became a crusade to disparage G.J.B. to his children, his employers and others. D.R.K.’s conduct became solely directed toward exposing G.J.B. as an “abuser” without regard to the impact that might have on her children and G.J.B.’s career path.

[29] D.R.K. also had no insight into the very real possibility that all of the comments that she was making on her group site to approximately 100 members could be disseminated to others with incalculable permutations and combinations. In many cases, she repeated comments that she made on the group site in her personal Facebook site. Although she denied that her children had access to her Facebook this is not supported by other evidence. I will expand on that issue later.

[30] In order to understand the impact on her family I will include some of the more significant posts by her that were filed as exhibits in this hearing.

[31] There were multiple court orders and endorsements in the child protection proceedings that started as a result of the child Q.E.K.B. expressing suicidal thoughts at his school when he was in the care of his mother in or about March 2010. As referred to earlier in these reasons the protection proceedings ultimately led to the Court placing the children with the father.

[32] By October 11, 2011, the father was given custody of the children on a final basis by the Order of Justice Maddalena. The mother was given supervised access that was intended to expand over time. Subsequent to the children being in the full time care of their father, D.R.K. posted on her group site and later on her personal Facebook site, the following:

D.R.K.

June 18 at 1:32

This is a summary of what happened to me and my children through our Canadian Justice System.

Mediation is not the way to go in Domestic Violence Situations. Courts are needed and Judges need to be educated on Domestic Violence. Domestic Violence is treated as “legal attempted homicide” through ownership in our court. Domestic Violence needs to be taken into consideration by judges who make the Orders and in favor of the Victim(s) when Domestic Violence comes to light with the first call to 911.

The Victim who took a chance risking her life and her children’s to phone 911 did so because she got up the courage to get out and get her children out from abuses that no other person could fathom. She does not do this lightly because she has been threatened by the abuser that her children, her animals, her family her? Are at risk [sic]. She knows his threats will come to fruition they always do. This is where the courts failed me and my children in light of Severe Domestic Violence.

I am a victim of Domestic Violence wherein I was made an incomplete quadriplegic. My children were abused too.

I don’t want this to happen to any other woman or child. Our Canadian laws need to change and abusers need to be put into jail the first assault. The first call isn’t the first assault. The abuse has usually been going on for a very long time and this call is made when the Victim believes that she and her children are going to be killed.

What was done to me and my children through the courts is/was Evil and proves to me that Domestic Violence is Normalized in Canada through our laws and our court officials.

J Quinn wasn’t fit to sit since he got up three times during the first trial and obviously wasn’t listening. He needed pain medication and something to drink, a heating pad and to stretch.

J. Taliano based his decision of J Quinn’s and stated he didn’t have to look at the evidence and placed the children with the Abusive father. He went along with FACS without reviewing any of the evidence submitted. His statement read STTE that it was evidence that the Maternal Grandmother was aligned with the daughter and gave the children to the Abusive father. J. Taliano failed to see that the Abusive father misaligned my spinal cord and didn’t bother to take the severe abuse done to me and my children into consideration when he made his decision to hand my children over the Abusive father. He relied heavily on what was put forward and manipulated by FACS Niagara. My son now has brain damage and I have been totally alienated by the father from my children.

In this same post, D.R.K. went on to criticize Justice Henderson when Justice Henderson dealt with her matter. She stated:

I still remember Justice Henderson stating that a Superior Court Order is one of the highest and most respected of Orders. I don’t think J. Henderson understood that we were at a trial because the first Superior Court Order made in good faith was never followed and me [sic] and my children’s abuser for the last 8 years.

J. Henderson pushed the trial to mediation with J Errol. J Errol told me that because I am deaf and couldn’t hear what was being discussed that I could get the information that’s been decided from my lawyer after it was done. I couldn’t hear a thing. The result was another Order through mediation which again was never followed by the abuser.

[33] In her testimony at this trial she stated that Justice Henderson insisted that her matter had to settle as he had a murder trial to go to. She then stated that her lawyer at the time would not do the trial and forced her into settlement.

[34] D.R.K. went further in this same post:

This is how our justice system treats Domestic Violence Victims. The courts who don’t read, don’t listen, rely too much on outside agencies who have other motives aligned with funding formulas. Mediation was forced on me twice instead of a trial. It should have been trial twice with no mediation since it was domestic violence.

[35] On her own personal Facebook she refers to herself as a:

“Resilient survivor of Parental Alienation and Domestic Violence hence incomplete Quadriplegic”

[36] I do not accept D.R.K.’s testimony that her children did not see her Facebook. On her personal Facebook she wrote on September 2 at 10:04 PM:

To my son Q.E.K.B. and daughter K.M.K.B. know that I love you.

K.M.K.B. despite the vitriol you have learned to barrage me with, I still love you very much. You wanted to live with me in 2003 and this was reported to the court you also said that living with me your mom would mean breakfast in bed every day.

[37] In a post on her personal site on July 29, she posted the following:

This happened to me and my children in our Canadian courts, our courts in the Niagara Region and judges who continue to fail to fix what they ruled on. Judges are currently aware of the extent to which the father will make things up and lie. I had to laugh at his lawyer trying to not say that he made his current place of employment up because he didn’t want anyone to know he was fired. He hedged this explanation with the judge screwing her face up while his lawyer tried not to say he lies but essentially had to. So what else did he make up? Practically everything! Our Canadian courts have let me and my children down. Our Canadian judicial system is just as bad as the abuser since they will not acknowledge what they have done and fail to right the wrongs they have done. If abusers use parental alienation as a weapon to keep controlling the victim by using children as pawns then the court should review these decisions where parental alienation and abuse occurred, I had an MRI just 3 days prior to the last assault and then needed complete spinal surgery for the injuries I sustained from being hit by my abuser.

This is not justice occurring in and through our courts, but obfuscation by both the abuser and then the judges here in Niagara.

[38] After telling her children she loves them, her posting on her personal site on June 2 at 12:37 am reads:

K.M.K.B. know that Q.E.K.B. stays to keep you safe. I question if this is why he has another concussion and brain injury protecting you from your father. So leave together please. On your own with me I don’t care just leave. It/he is going to get worse. I fear for both of you.

[39] Q.E.K.B. did have two concussions. However, one was obtained while he was participating in an organized wrestling match. The other was obtained when he was snowboarding. He went through normal concussion protocol and no further medical procedures were necessary.

[40] In a personal post on her Facebook on May 25, D.R.K. stated that her husband has destroyed her life and her children’s life. She went on to state that despite her husband admitting to the judge that he makes things up that aren’t true:

The Superior Court Judge today acknowledged his admittance and, as always, she had no reprimand, an enabler in an authoritative position.

[41] D.R.K. criticized on group and personal Facebook posting multiple professionals in addition to the multiple judges who sat on her case. As she did with judges she included names of many police officers, some medical professionals, social workers at FACS Niagara and the Office of the Children’s lawyer.

[42] I find that the children in this case were well aware of the posts of their mother on Facebook. The child K.M.K.B. in a message chat with her mother on June 26, wrote the following:

Hi

So

Concerning you posts on Facebook

Know that it is not right to post things about other people without their permission

It is also not okay to imply thing and go into extreme detail fabricating things and events that are not true.

It is not okay to list off people’s names and label them as bad people because you think they wronged you. Ps. Q.E.K.B. got a brain injury from what he loved (snowboarding)

And if you’re wondering

When Q.E.K.B. was snowboarding he was by himself

I was with dad

There is no possible way he could be in 2 places at once.

I’m disappointed in you. You haven’t changed the things that me and Q.E.K.B. wanted you to change

You’ve only made it worse

Get your head out of your ass and grow up

Stop pointing your finger at everyone else and maybe start looking at who that finger belongs to

You

Stop trying to blame everyone else for things that you’ve done to yourself

Stop hiding behind a lot of names of everyone you blame

There is only one person to blame

And it’s you.

[43] D.R.K. testified that she did not believe that K.M.K.B. wrote that message. She stated that K.M.K.B. was in French school and could not write that way in English. She insisted that the messages must have come from G.J.B. She had no reasonable explanation as to why K.M.K.B. would be able to read her messages, have no difficulty in understanding them but, according to her she could not write back in English. I do not believe D.R.K. According to G.J.B., the children have no difficulty writing in English.

Reasonableness of G.J.B. Changing Employment in 2017

[44] Having regard to above noted foundation of facts, I look to the issue of whether G.J.B.’s decision to change his employment in 2017 was a reasonable one under the circumstances.

[45] I find that D.R.K.’s mindset was entrenched with the view that G.J.B. was an abuser. She is convinced that she has been a victim of severe domestic violence and that none of the professionals who have dealt with her case in the courts have dealt with it properly. In fact, she has accused many, including judges, of being enablers and abusers themselves.

[46] I find that D.R.K.’s mindset had driven her to disparage the father of her children at every opportunity. Under the circumstances I accept the evidence of G.J.B. that, the stress he and the children were put under by D.R.K.’s unrelenting crusade to disparage him became severe. He testified that he is still in counselling to deal with the stress.

[47] I also conclude that this constant barrage of disparaging remarks about their father were known to the children and their stress was elevated to distress. D.R.K. implored them to stay safe and to leave their father’s home together or something was going happen to them at the hands of their father. D.R.K. made numerous efforts to instill fear in her children about their father

[48] It is because of this mindset of D.R.K. that was driven by vengeance and hate that I accept the father’s evidence that D.R.K. did contact his former employer, H[...], and told them about her allegations that G.J.B. was an abuser. He stated that he was “called on the carpet” and asked by HR at H[...] about this abuse allegation. They also wanted to know if there was a court order dealing with this issue.

[49] G.J.B. testified that given all of the increasing stress and the fact that he was forced to travel at an increased level to places North of Toronto, while working at H[...], he felt he needed to look at alternate employment. Employment that would allow him to be closer to his children that he had the sole responsibility for.

[50] He testified that he wanted to be able to attend Scouts with them and other activities they were participating in.

[51] I find that in all the circumstances his decision to look for alternate employment was reasonable. I reject the evidence of D.R.K. that it was irresponsible of G.J.B. to leave his employment with H[...] at a time when he had spousal support obligations to her that included health care benefits that he was required to maintain for her while available from his employer.

[52] It is also significant that D.R.K. contacted Scouts Canada and told them of her allegations of G.J.B. being an abuser. G.J.B. was a Scout leader at the time. This allegation prevented G.J.B. from continuing with this activity.

The New Employment

[53] As alluded to earlier, G.J.B. received an employment offer from C[...]. That offer would allow him to receive a similar income to the income that he was earning at H[...] and his new employer was making efforts to keep the same or similar health benefit coverage for D.R.K. It would also allow G.J.B. to be closer to his home and children with less travelling as part of the new job. G.J.B. accepted the job offer.

[54] At the time of the change in his employment, D.R.K. was represented by Mr. Kiernan. Once G.J.B. changed jobs he emailed Mr. Kiernan on September 24, 2017. At that time, he told him that he had accepted a position at another company and that D.R.K’s benefits with GWL would end on October 13th. He advised further that all questions or inquiries regarding benefits were to be directed to him.

[55] Mr. Kiernan replied by email that same day and advised G.J.B. that he had forwarded this information on to D.R.K.

[56] By October 20, 2017 G.J.B. had not received any further reply by either Mr. Kiernan or D.R.K. He sent another email to Mr. Kiernan. Mr. Kiernan replied that:

“ your previous email was forwarded to my client that same day.” He further advised that he had not heard from his client but he would forward it on to her again.

[57] By November 1, 2017 G.J.B. had still not received any reply from either Mr Kiernan or D.R.K. He sent another email to Mr. Kiernan. He did advise Mr. Kiernan that it was brought to his attention that D.R.K. had sent an email to the human resources department of his new employer C[...] regarding health benefits.

[58] G.J.B. went on to say in that same email of November 1, 2017:

“If D.R.K. refuses to either communicate with me either directly or through a 3rd party such as yourself, and she contacts my employer again, I will be forced to contact the police and/or seek legal action.”

[59] By November 6, 2017 G.J.B. sent an email to Mr. Kiernan and advised him that he now had an online access to the health benefits and that he had requested a separate access for his ex-spouse to login. He further advised that D.R.K. had not provided any information and therefore he could not complete all of the claims in the coordinated benefits form that was required to report her coverage from other benefit providers.

[60] Mr. Kiernan advised G.J.B. on November 8, 2017 that he no longer represented D.R.K.

[61] It was not until November 27, 2017 that G.J.B. received an email from D.R.K. In that email she stated that she had yet to receive the medical benefit package that he had told her former lawyer he would be sending. That same day G.J.B. emailed a response that stated “attached is another copy of the benefit information.

[62] D.R.K. cryptically responded:

“Understand this is the first time I have received any information about benefits from you. My former lawyer is my former lawyer and doesn’t represent me. I never received this.”

[63] In her testimony she could not explain why she did not contact G.J.B. earlier having seen all of the communications between G.J.B. and Mr. Kiernan. D.R.K. then complained that the new SunLife coverage is not sufficient to meet her needs in the same manner as GWL had done.

[64] The last communication relating to the benefits coverage was from a lawyer on behalf of G.J.B. to D.R.K. on January 22, 2018 sending her documentation she needed for SunLife in order to be reimbursed for expenses directly to her.

[65] G.J.B. was terminated on February 12, 2018. He communicated with D.R.K. that he had received a quote from SunLife of the costs of extending coverage to D.R.K. She never responded to either G.J.B. or SunLife. The offer to extend the benefits expired.

[66] G.J.B. stated that he felt that even if there was a shortfall he would be making sufficient income that he could top up the shortfall.

[67] When G.J.B. accepted the new employment with C[...], his employment, however, was probationary for a period of 6 months. As part of the probationary process he had a job review. That review indicated that his performance needed to be improved. He had some difficulties with other employees and according to the review he did not handle them well. G.J.B. gave evidence that other employees were jealous of him getting the job that he did as the new hire.

[68] G.J.B. also stated that instead of D.R.K. seeking information from him directly about his new health benefits or SunLife, she had multiple contacts with C[...]. He testified that he was concerned about her constant contacts as he believed she was disparaging him to his new employer in the same way she did with everyone else.

[69] As stated earlier, G.J.B. was terminated from his new employment with C[...] on February 12, 2018.

The Law and Analysis Motion to Change

[70] It is agreed by the parties that the Order of Justice MacPherson, dated June 9, 2011 is a corollary relief order pursuant to the Divorce Act.

[71] A motion to change a spousal support order granted under the Divorce Act is governed by s. 17, the relevant provisions of which are as follows:

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

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

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

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

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

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that

(a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and

(b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.

(11) Where a court makes a variation order in respect of a support order or a custody order made by another court, it shall send a copy of the variation order, certified by a judge or officer of the court, to that other court.

[72] There is a two-step process, as described in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 and L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775. First, the court must consider whether the conditions for variation exist, i.e. whether there has been a change in the condition, means, needs or other circumstances of either former spouse since the order was made. The change must be “material”, meaning that it must be a change that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. The onus of proving a material change is on the party seeking variation. Once the court decides that the threshold for variation has been met, the court must decide on the variation to be made in view of the change, based on the objectives set out in s. 17(7) of the Divorce Act.

[73] Pomerance J., speaking for the court in Cossette v. Cossette, 2015 ONSC 2678, [2015] O.J. No. 2073 (Div. Ct.), said at para. 13:

[13] Parties cannot sidestep support obligations by unilaterally deciding to leave the workforce. As stated in Bullock v Bullock 2004 CanLII 16949 at para 13: "A support payor cannot choose to be voluntarily underemployed whether by retirement or otherwise and thereby avoid his or her spousal support payment obligations".

[74] I must look at the condition, means, needs and other circumstances at the time of the order and at the time of the motions to change in order to determine if there has been a material change. I must also consider whether G.J.B. unilaterally decided to leave his job, place himself in a risky employment situation having regard to his obligations and become unemployed as a result.

[75] Counsel for D.R.K. argues that is exactly what G.J.B. did and that as a result I should impute income to him at the level of his earnings while he was employed at H[...]. I reject that argument for the reasons set out below.

[76] The Alberta Court of Appeal recently considered the issue of imputing income after a support payor changed jobs at a time that that payor had support obligations. In Blanchard v Blanchard, 2019 ABCA 53, the court stated commencing at para 37:

[37] The appellant submits that the chambers judge erred by failing to impute income to the respondent for 2016. The appellant does not dispute that the respondent became unemployed in November 2015, and continued to be unemployed for much of 2016.

[38] Section 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175 [Guidelines], permits a court to impute income to a spouse in circumstances where the spouse is "intentionally under‑employed or unemployed".

[39] In Hunt v Smolis-Hunt, 2001 ABCA 229 at para 42, 286 AR 248 [Hunt], this Court ruled that a person seeking to impute income to another under section 19(1)(a) of the Guidelines, must adduce evidence that the obligor engaged in a “deliberate course of conduct for the purpose of evading child support obligations”. Proving a deliberate course of conduct requires “proof of a specific intention to undermine or avoid support obligations, or circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her support obligations”: Hunt at para 42. DBF v BF, 2017 ABCA 272 at para 77, 98 RFL (7th) 1 recently applied Hunt; see also Shigehiro v Shigehiro, 2017 ABCA 392 at para 55, 3 RFL (8th) 25. The question is whether the respondent engaged in non-remunerative activities with the intention of avoiding child support obligations: DBF v BF at para 79.

[40] In our view, the chambers judge did not err in determining there was insufficient evidence to conclude that the appellant was intentionally under-employed in 2016 with the intention of avoiding his child support obligations. To the contrary, the chambers judge found that the respondent was making voluntary payments in excess of, or around the table amount for $150,000 income in the years he was making a substantial salary in the oilfield industry, and that he continued to make child support payments from his savings in late 2015 and most of 2016 when he was unemployed and while his new family was in transition. The chambers judge found that the respondent’s “pattern of paying child support over the years does not belie an intention to undermine his obligations to pay reasonable child support”. We agree.

[41] Additionally, the chambers judge was entitled to accept the respondent’s evidence that he lost his employment due to a downturn in the oil industry and that,

. . . while there is sparse evidence regarding the steps Mr. Blanchard actually took to find further employment, it is reasonable to infer that he would have continued to work as an electrician if that work was available as deliberate underemployment by Mr. Blanchard would have a negative impact not only on the child support payable to Ms. Blanchard, but also on the standard of living of Mr. Blanchard’s new family for which he is apparently the sole income earner.

[42] Accordingly, this ground of appeal is dismissed.

[77] In my view, G.J.B. is not intentionally underemployed nor did he change his employment to C[...] in order to avoid his responsibility to pay spousal support pursuant to Justice MacPherson’s Order.

[78] I accept that G.J.B. and his children were subjected to the stress of a constant barrage of D.R.K.’s denigration of G.J.B. The stress that was created in both the father and the children was a sufficient justification for him to seek alternate employment. However, I also consider G.J.B.’s desire to stop the excessive travelling that became part of his job at H[...] was an additional and reasonable motivator to his job change.

[79] I find that G.J.B. made every effort to attempt to have medical coverage for D.R.K. She did not cooperate. Her inaction contributed to her loss of any replacement coverage that might have been available.

[80] G.J.B. stated that it was his belief that D.R.K. told his new employer, C[...], the same thing she had disclosed to so many others, including H[...], that is that G.J.B. was an abuser. Given all of the evidence of D.R.K.’s penchant to disclose to others that G.J.B. was an abuser, I find that it is reasonable to infer that she did tell his new employer that he was an abuser and that was a contributing factor to the termination of his employment with C[...].

Efforts at Securing New Employment

[81] Once G.J.B. was terminated, he applied for Employment Insurance. He brought a temporary motion to reduce his spousal support. On July 25, 2018, Justice Sheard ordered that his spousal support was to be reduced on a temporary basis to $247 per month, based on his EI earnings of $28,444.00 per annum. She also ordered him to return to court with evidence of his efforts to regain employment similar to his previous employment.

[82] G.J.B. later provided evidence at this trial of his ongoing efforts to secure employment including:

Attending at his former employer, H[...] and talking with his friends and former colleagues about the possibility of returning. This was not successful;

He also registered on multiple job placement web sites related to this field of employment:

a) He applied to multiple jobs that included:

b) Hydro One

c) Niagara Region, Energy Conservation Manager

d) City of Niagara Falls, in two different departments;

e) Oakville Hydro, Niagara Peninsula Energy;

f) Indeed, site superintendent

g) Marine Clean

h) Talent Find and others.

[83] He only received and attended at one interview. His efforts to date have been unsuccessful. I find that his efforts have been reasonable.

[84] In addition to attempting to secure employment in his former field of study and work, he also made an effort to obtain other skills as a Mediator. He enrolled in and was accepted in June of 2018 to take Family Mediation with the Ontario Association of Family Mediators (OAFM.) He is still in the process of attempting to get accreditation. The process has been lengthened due to a difficulty in obtaining internships. OAFM is working with him to find an alternate acceptable process. He estimates that the process will take approximately one year.

[85] It was his intention to use these new skills to work with his girlfriend L.F. in her social work business. That process has been made more difficult by the unacceptable postings of D.R.K. about him and present girlfriend, L.F. on the internet. Once again, D.R.K. has put road blocks in the place of G.J.B. attempting to advance his career. This will be further expanded on later in these reasons.

[86] G.J.B. is at present getting paid by L.F. the sum of $500.00 per week for his administrative assistance.

G.J.B.’s Present Financial Resources

[87] G.J.B.’s financial statement sworn March 20, 2019 indicates that his 2018 income was $44,909.47.

[88] He further represents that his income for 2019 is the $500.00 per week he receives from L.F. G.J.B represents that his monthly income, therefore, is $2,166.67 per month plus child tax benefits of $155.40 which totals $2,322.07 per month, for a total of $27,864.84 annually.

[89] His monthly expenses total $3,186.13 per month. That amount includes the $247.00 per month he pays in interim spousal support.

[90] G.J.B. has sole custody of the two children. The child Q.E.K.B. is in first year of University at Ottawa. G.J.B. resides in a home in Niagara Falls that he owns. The value of the home is $360,000.00. There is an outstanding mortgage of $150,438.28 per month. In addition he has a line of credit totaling $14,544.33. He shows credit card debts totaling approximately $2,807.75.

[91] L.F. is now residing with G.J.B. She contributes to the monthly expenses to the total amount of $440.00 per month. G.J.B. testified that he does not know the income of L.F.

[92] However, even attributing to L.F.’s one half of the accommodation costs of the home they are living in which amount to $1,428 per month, that would result in a reduction of G.J.B.’s monthly expenses in the total amount of $709.57.

D.R.K.’s Present Financial Circumstances

[93] D.R.K.’s sworn financial statement of February 27, 2019 sets other income as $1,437.00 per month. Her income consists of:

ODSP - $500.00 per month

CPP - $690.00 per month

Spousal Support - $247.00 per month

[94] In addition to the above, D.R.K. receives health care benefits from ADP, the Ministry of Health through Trillium.

[95] She is living in a 2000 square foot home that is owned by her mother. She pays her rent in the amount of $550.00 per month and she pays for the property insurances in the amount of $100.00 per month as well as repairs and maintenance to the home in the amount of $100.00 per month.

[96] D.R.K. pays for all of her own utilities. Her transportation costs for her car amount to $480.00 per month

[97] D.R.K. shows that she does not own any assets except her claim that G.J.B. owes her medical expenses that were paid out to him when she would have received that money in the amount of $2,791.20.

[98] D.R.K. states that she owes the TD bank $7,200.00 and her mother $2,390.00. She claims that she owes ODSP a claw back amount of $4,300.00.

[99] In this case, there is a material change in the circumstances of the parties from the circumstances that existed at the Order of Justice MacPherson dated June 9, 2011.

[100] G.J.B. lost his job and is presently earning $500.00 per week with no benefits.

[101] The parties who, consented to the above order, recognized that D.R.K. had significant disabilities that limited her ability to earn an income. They recognized that she was entitled to support. Nothing was specifically stated about duration of any support she would receive. However, given the extent of her disabilities it is clear that her support was intended to at least be of a significant duration if not unlimited in time.

[102] Part of G.J.B.’s claim is to have D.R.K.’s support terminated. When considering that issue I am guided by the Supreme Court of Canada’s comments in Bracklow v. Bracklow, [1999] 1 SCR 420, 1999 CanLII 715 (SCC) at para.

48 To permit the award of support to a spouse disabled by illness is but to acknowledge the goal of equitably dealing with the economic consequences of marital breakdown that this Court in Moge, supra, recognized as lying at the heart of the Divorce Act. It also may well accord, in my belief, with society’s sense of what is just. The Report of the Scottish Law Commission, Family Law: Report on Aliment and Financial Provision (1981), at pp. 111-12, a thoughtful analysis of the rationale and policy considerations of spousal support and illness, states:

Financial provision on divorce is not . . . simply a matter of abstract principle. It is essential that any system should be acceptable to public opinion and it is clear from the comments we have received that many people would find it hard to accept a system which cut off, say, an elderly or disabled spouse with no more than a three-year allowance after divorce, no matter how wealthy the other party might be.

Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less.

[103] The Supreme Court in Bracklow further commented at para. 54:

54 Fixing on one factor to the exclusion of others leads Mrs. Bracklow to an artificial distinction between amount and duration. The two interrelate: a modest support order of indefinite duration could be collapsed into a more substantial lump-sum payment. It also leads her to the false premise that if need is the basis of the entitlement to the support award, then the quantum of the award must meet the total amount of the need. It does not follow from the fact that need serves as the predicate for support that the quantum of the support must always equal the amount of the need. Nothing in either the Family Relations Act or the Divorce Act forecloses an order for support of a portion of the claimant’s need, whether viewed in terms of periodic amount or duration. Need is but one factor to be considered. This is consistent with the modern recognition, captured by the statutes, of the variety of marital relationships in modern society. A spouse who becomes disabled toward the end of a very short marriage may well be entitled to support by virtue of her need, but it may be unfair, under the circumstances, to order the full payment of that need by the supporting spouse for the indefinite future.

[104] The Court must consider all of the factors and objectives of the Divorce Act in order to determine, in the circumstances of each case what the appropriate amount and duration of support. In this case, the period of cohabitation was approximately 10 years. It is reasonable to consider that falls within the intermediate range of cohabitation. D.R.K. had significant disabilities throughout the marriage. This is specifically recognized by the parties by their putting into their minutes of settlement that led to the Order of Justice MacPherson that if the GWL health benefits no longer became available that would result in a material change that would require a review of her support.

[105] Once Again referring to Bracklow, at para 57:

57 Again the answer is that under the statutes, the desirability of freedom to move on to new relationships is merely one of several objectives that might guide the judge. Since all the objectives must be balanced, it often will not be possible to satisfy one absolutely. The respondent in effect seeks a judicially created “statute of limitations” on marriage. The Court has no power to impose such a limitation, nor should it. It would inject a rigidity into the system that Parliament and the legislatures have rejected. Marriage, while it may not prove to be “till death do us part”, is a serious commitment not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cut-off dates.

[106] At the beginning of the marriage, D.R.K. had substantial qualifications given her two degrees and certificate. She had a Master’s degree and a job offer that may have led to a promising career in the Canadian Space industry. She did not pursue that. The parties then had two children and D.R.K. stayed at home to be the primary child care giver.

[107] D.R.K.’s ability to contribute to her finances is limited by her disabilities. I do not agree that the evidence before me establishes that she is completely unable to work. The evidence establishes that she has done a significant amount of volunteer work. This work has required her to travel, sometimes at least one hour to and then from that work. She has done her volunteer work for weeks at a time and in the range of one half day each time.

[108] Her latest volunteer activity was in 2017 and 2018. Although she claims that she cannot concentrate nor can she sit for longer than 45 minutes, I do not accept that evidence. She sat throughout this trial and was examined and cross examined for almost two days. It was only after the first day of trial that she could not return for the second day. She spent the weekend in hospital due to the stress of her first day at this trial. She did not have any difficulty for the balance of the four days this trial took.

[109] Nevertheless I have no evidence of how much money she could make given her limitations at this stage. I decline to impute any income to her.

[110] D.R.K.’s needs are substantial. She testified that she is unable to take some of her medications. According to her, present coverage from Trillium and ADP will not pay for some of the more expensive drugs like Resotran. She states that that drug alone costs $1,800.00 annually. It used to be covered by GWL. In total she claims that her present shortfall between what used to be covered by GWL and what is covered presently through a combination of public health resources amounts to $21,300.00 annually.

[111] D.R.K. did not provide any corroborating evidence that any of the drugs and services she used to get from GWL were actually submitted and rejected by her present benefit coverage.

[112] The Supreme Court of Canada in Bracklow had to consider a similar complex balancing of factors that I must consider. At para 60 the court stated:

60 Bearing in mind the statutory objectives of support and balancing the relevant factors, I conclude that Mrs. Bracklow is eligible for support based on the length of cohabitation, the hardship marriage breakdown imposed on her, her palpable need, and Mr. Bracklow’s financial ability to pay. While the combined cohabitation and marriage of seven years were not long, neither were they (by today’s standards) very short. Mrs. Bracklow contributed, when possible, as a self-sufficient member of the family, at times shouldering the brunt of the financial obligations. These factors establish that it would be unjust and contrary to the objectives of the statutes for Mrs. Bracklow to be cast aside as ineligible for support, and for Mr. Bracklow to assume none of the state’s burden to care for his ex-wife.

[113] This case represents a difficult balancing of the evidence given all of the objectives and factors that I must consider as set out in the Divorce Act s. 17. The reality, given my findings, is that G.J.B. is not employed as he was in 2011, at the time of the Order subject to this change motion. I have found that he is in his present situation, in large part, due to the actions taken by D.R.K.

[114] Although D.R.K. has the financial needs that I referred to above, G.J.B. does not have the ability to meet those needs at this time.

[115] I also find that D.R.K. is in need both with respect to spousal support and medical expenses. However, there is no ability, at this time, for G.J.B. to pay support at the level requested by D.R.K. She submits that I should impute income to him in the amount of $120,000.00. I decline to impute such an amount. His present income is very similar to the level of income he was earning when this matter came before Justice Sheard. His income is $27,864.84 annually and her income is only what she earns from CPP and ODSP.

[116] Under all of the circumstances I find that G.J.B. shall continue to pay $274.00 per month until there is a review as set out in Paragraph 117 herein.

[117] This order is subject to review in 6 months with the following to be determined at such a review:

1. G.J.B.’s efforts to secure employment either in the field of Electrical Technician or as a Mediator.

2. D.R.K.’s effort to secure a part time position as a researcher in the field in which she has a Master’s degree; or as a librarian or consultant in that field.

3. Up to date financial circumstances of both G.J.B. and D.R.K.

4. The availability of health benefits to D.R.K. from any source, either in the private or public sector.

5. The availability of health benefits available to G.J.B. that would cover D.R.K. and to what extent and the costs thereof.

Restraining Order

[118] Much of the evidence relating previously in this judgment to the posts, texts and messages of D.R.K. applies to the issue of whether a restraining order should be granted. In addition to the posts, G.J.B. filed pictures that he took showing D.R.K. outside of his home parked in a car that faced the backyard and back of the house where G.J.B. and the children live. In addition he filed two pictures showing a close up of G.J.B.’s back yard and his driveway.

[119] D.R.K. admitted that she was the one who took the pictures of his back yard and driveway. For her to have taken those pictures she located herself very close to his fence at that back of the house and right up to G.J.B.’s driveway.

[120] D.R.K. stated that she was in the car with her mother in order to see her children after school. The children had no idea she would be there.

[121] D.R.K. also stated that she took the pictures in order to try to prove that G.J.B. had a sail boat and other chattels he was not disclosing.

[122] G.J.B. testified that the sailboat and the other items were owned by his girlfriend L.F.

[123] G.J.B. stated that it was intimidating. I agree when one considers this evidence that D.R.K. was that close to his premises especially when taken in the context of her many years of calling him an abuser who should be punished.

[124] In the Case of MBAY v JY, 2013 ONSC 4423, Justice Minemma reviewed some of the factors that Justice Blishen referred to in the case of V.S.J. v. L.J.G., (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319. In that case Blishen J. at page 133 listed the factors most commonly considered by the court in terminating access in the children’s best interests. Two of those factors are applicable to this case:

1. Long term harassment and harmful behaviours towards the custodial parent causing the parent and the children stress or fear.

2. Ongoing severe denigration of the other parent.

[125] In MBAY, the court was dealing with a history of the one parent denigrating the other parent on what was supposed to be a private Facebook site in which “friends” could have access. The unfortunate reality is that once posted denigrating comments can and often do take on a life of their own and the consequences can be dangerous and devastating. Some of the posts by the father in the MBAY were set out in detail by Justice Minemma. Commencing at Para 24:

[24] M.B.A.Y. was able to track J.Y.’s posting on Facebook. J.Y. had a following of ‘friends’ many of whom he did not know in the sense of having actually met them in person, who were sympathetic to him as a father without custody.

[25] J.Y. posted on August of 2010 that his wife had hidden the children and that he was frustrated. A Facebook exchange ensued where at least ten different people contributed, not counting those who indicated their ‘likes’ for what was said. The conversation became more aggressive as it went on, with M.B.A.Y. being called “crazy”, “a fucking nut”, and “selfish” by strangers. A commenter noted that J.Y.’s situation made them all angry.

[126] Commencing at para 29 the court stated:

[29] J.Y. continued to disparage M.B.A.Y. on Facebook and the list of ‘friends’ kept growing, eventually getting to be approximately six hundred. J.Y. started making an allegation that M.B.A.Y. had physically abused A.Y..

[30] After a long time of not seeing the children J.Y. indicated that he was coming in November of 2010 with someone to help him during access, and wanted to take the children overnight. By this point M.B.A.Y. was worried about the Facebook smear campaign, and in particular whether this other person J.Y. was bringing was the “duct tape person” or someone else who had said mean or threatening things in reference to her. J.Y. had exercised very little access since March, even though it had never been restricted. M.B.A.Y. said she told J.Y. that the access could only be with him and it would be day-time access only, not overnight. When she learned that for the visits he had a female friend with him, she cancelled the next day visit as she had no idea who this person was.

[127] After the father in MBAY was subjected to enforcement of support through FRO, he became angry. Justice Minemma describes what occurred at para 36:

[36] J.Y.’s response was outrage. He took to Facebook again painting himself as a victim owing $10,000 in child support arrears. He called M.B.A.Y. crazy, and at one point said in reference to her (translated from French on consent):

“If she could only die somehow, it would make the life of 5 people a lot better. It would be a good riddance, a good for nothing, only good to make shit, nothing else.”

[37] J.Y. had a female follower on Facebook who chimed in calling M.B.A.Y. a “bitch” and “heartless”.

[48] People reading J.Y.’s one-sided and inaccurate narratives on-line accepted his version of events. One of his brothers sent a particularly mean email to M.B.A.Y. on February 6, 2012, calling her selfish, cruel, a mental problem, and suggesting that she did not love her children. Again, M.B.A.Y. had done absolutely nothing to warrant any such reaction.

[128] In MBAY, the father was charged criminally and among other things was placed on probation that restricted his ability to communicate with or about the mother either directly or on Facebook or any other social media site.

[129] Eventually, the father acknowledged that it was wrong for him to denigrate and disparage the other parent. Nevertheless, Justice Minemma ordered:

4. J.Y. shall not post any online comments or material about M.B.A.Y. or the children on any social media directly or indirectly. This shall include written comments, videos or photos which are of or about M.B.A.Y. or the children on Facebook, YouTube, or any other internet sites or social media.

[130] Disparaging and denigrating comments against a custodial parent that are posted on the internet social media and other sites do increase the stress, distress within the family. If they are chronic and protracted they cause emotional harm to children. This is not an issue of freedom of speech. The court has a duty to ensure that children are not harmed.

[131] I adopt the words of Gagnon J.C.S. in Droit de la family – 14560, A.R. v. C.S. 2014 CarswllQue 2234 at para. 54:

54 Children instinctively love both their parents. When one parent disparages the other, the children suffer the offense personally, as if half of their own self was being denigrated as well.

[132] Ongoing severe denigration of the other parent is harmful to children. It cannot be tolerated. (See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk, supra.)

Facebook Posts Directed at L.F.

[133] D.R.K.’s disparaging and denigrating comments in her Facebook posts about G.J.B. extended to G.J.B.’s girlfriend L.F. who was cohabiting with G.J.B. and the children. L.F. is a registered psychotherapist. G.J.B. testified that a simple Google search of L.F.’s name brings up the following post authored by D.R.K.:

If you are a Victim of Domestic Violence and/or your children please read this about L.F. registered psychotherapist on Lake Street St. Catharines, Family Counselling Centre St Catharines, who sits on the Board of Directors of Women’s Place. L.F. through her intimate association with an arrested abuser who plead guilty to assault, in effect condones the abuse done against his children as well as the continued abuse he enacts against the disabled mother of these children through the court by parentally alienating them for her, depriving her of needed medications and financial security.

Peter Jaffe put out a publication about how parental alienation is used by abusers for the past 20 years to gain 100% custody of the children in order to continue their control and abuse to the victims.

[134] D.R.K. went on to accuse the father of not telling her children about reconciliation counselling that she had set up. She went on to state:

At the time I was up in Hamilton at the neurologist who was tending to my incomplete quadriplegic condition which was caused from the abuse of my ex, L.F.’s partner.

There is no possible way L.F. wouldn’t know any of this since she has been involved long enough to know not only what happened with me, but all of his conquests. She through continued association obviously condones this type of abusive individual and their behavior.

L.F. is trained to recognize abnormal psychology traits in individuals and she is either totally unaware and clueless, which I doubt, or else she likes partnering up with them to partake in their abuse?

The serious threat from L.F. regarding my children is the coercive control she has over them with her position as a psychotherapist. L.F. has indicated through continued association with this man that she accepts abusive behavior inherent in her partner in front of my children and done to my children presently by taking away phones and accounts used to communicate to me through. In particular since my daughter reached out to me via messenger her distressing news of assault and me with me on [sic] June 7 for 2 hours against her fathers will. There is no possible way that L.F. wouldn’t be aware of any of this man’s controlling and domineering behaviors and physical actions of abuse.

If L.F. condones abuse from an abuser in her personal intimate relationship how can she address a victim escaping abuse or looking to escape abuse? Question is what else does L.F. condone and how many other vulnerable victims have fallen plight to her counselling and behavior if she is okay with abuse and arrested abuser as an intimate partner?

Abuse of power and authority is problematic especially when vulnerable individuals are at risk from interacting with them. In particular when abusers use a psychotherapist knowledge to use against their victims.

Counsellors, psychotherapists, social workers, police, lawyers, judges and all front line workers who deal with vulnerable victims should be tested for abnormal psychology often throughout their career, Society after all doesn’t need more Carla Homolkas and Paul Bernardos working together.

[135] D.R.K.’s disparaging and denigrating comments about G.J.B., I find were made to the following:

Scouts Canada;

His former employer H[...];

Her group Facebook;

Her personal Facebook

FACS Niagara;

The Niagara Police;

Her personal and group Facebook relating to G.J.B.’s girlfriend, L.F.;

Numerous affidavits that she swore in these proceedings.

[136] Having regard to all of the above evidence it is my view that a restraining order is appropriate.

[137] D.R.K. shall be restrained from posting or otherwise sending any comments about G.J.B. or his girlfriend L.F. directly or indirectly. This prohibition includes any comments that are disparaging or denigrating on Facebook or any other social media site, by text messages, email or other electronic means.

[138] D.R.K. is restrained from attending within 500 metres of G.J.B.’s place of residence or any place in which it is reasonably known that he is working.

Costs

[139] If costs cannot be agreed to, the parties may submit written submissions no longer than 5 pages double spaced in length together with their Bill of Costs, no later than May 30, 2019.

Harper J.

Released: April 26, 2019