B. (N.M.) v. K. (P.P.), 2019 ONSC 726

COURT FILE NO.: FS-14-19827

DATE: 20190128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.M.B.

Applicant

– and –

P.P.K.

Respondent

Binu Alex Matthews, for the Applicant

Mark DeGroot, for the Respondent

HEARD: December 3, 4, 5, 6, 7, 10 and 13, 2018

REASONS FOR JUDGMENT

SANFILIPPO, J.

Overview

[1] The parents’ mandate is to act in the best interests of their children. In cases where they are not able to do so, the task falls to the court. This is one such case.

[2] The Applicant, who I will mostly refer to as the “Father”, and the Respondent, mostly referred to as the “Mother”, lived together for almost twelve years before separating on January 1, 2014. They had two daughters: G.E.K-B, whom I will refer to as “Child 1” and G.I.K-B, whom I will refer to as “Child 2”. At the time of this decision, Child 1 was 15 years old and Child 2 was 12 years of age.

[3] The parties’ relationship had episodes of high conflict. The Father testified that the Mother was emotionally and physically abusive toward him and, in his retrospective assessment, alienated the Children from him from birth. The Children were exposed to this conflict. The Mother’s solution in 2013 was to periodically banish the Father to the basement, with a decree to leave the house before the Children woke and to not return until they were asleep. He complied.

[4] Each party believed that they had good reason to be angry with the other. In December 2013 they together told the Children of their decision to separate. On January 1, 2014, they did so.

[5] In the period from January 1, 2014 to August 30, 2014, the parties co-parented the Children, seemingly with less hostility separate than before. The Children had meaningful access with the Father which was remarkable in its harmony, comparatively speaking. The Children vacationed with him one weekend and, in his estimation, these were happy times.

[6] Commencing September 2014, the Children spent less and less time with their Father. Much of the trial was spent in the parties’ development of their theories as to why this occurred, each blaming the other. The Mother attributes the falling-out to the speed by which the Father entered a new relationship, causing the Children to be confused, resentful and anxious. The Father denies this, blaming instead the Mother for restricting access to the Children because she was angry that the Father did not cede to her terms of settlement of economic issues. The Mother declared that the Children would stop having overnight visits with their Father because they needed a time-out, maintaining that the reduction in access was necessary to reduce anxiety for the Children. This would become the Mother’s theme, re-deployed for four years and, indeed, to the end of trial, of over-protective parenting to insulate the Children from a non-threatening Father, throughout deferring to the Children the responsibility for building a relationship with their parent.

[7] In the four-year journey from September 2014 to trial in December 2018, the parents lost their way and the Children lost their Father. The Children no longer speak with their Father: indeed, they are outright rude to him, as they are to all who seek to assist them in reconsidering their relationship with him. The Mother presents a strange duality: she swears that she wants the Children to have a meaningful relationship with their Father, but believes that they should be allowed to do so on their time and terms which, at present, are none. She says that the Children have been through enough already and ought not to be bothered by the stress and anxiety caused to them by further, forced access with the Father. She proceeds erroneously on the misbelief that the Children can be emotionally well while chronically resentful and purposefully disconnected from a parent. Her parenting plan is to empower the Children to totally disregard their Father.

[8] The Father says that the Children have been intentionally alienated from him by their emotionally abusive Mother. He seeks an Order reversing custody of the Children, forbidding contact with their Mother, and requiring the Children to participate in intensive reunification therapy. He states that he is the parent most fit to care for the Children, even though they have not spent meaningful time with him for almost four years.

[9] I have noted, and I understand the Children’s views: they do not want to see their Father. However, the Children’s right to a voice ought not to be confused with a right to a choice. That is what parents are for. The Children’s preference is very important, but only one factor in my search for what is in their best interests.

[10] And so this trial proceeded for seven days, consuming finances that the parties do not have and re-opening past wounds and resentments, because the parents allowed their long-standing disdain toward each other to blind them to their Children’s needs. Each parent undoubtedly thought that he or she was acting in the best interests of the Children. However, in seeking a sudden reversal in custody with restriction on the Children’s access to the Mother, the Father did not appreciate that the Children have a life-long meaningful relationship with their Mother, that there was a risk that they could be harmed by total disconnection, and that Child 1 is now mere months away from being old enough to make her own decisions on residence. The Mother’s anger and distrust of the Father (in her words, “he triggers me”) prevents her from seeing that he was undeniably a part of the Children’s lives and that they have been harmed by losing contact with him. That is why she so easily promotes, without a shred of remorse, a solution whereby they never see him again.

[11] My task is to determine what parenting and custody arrangements are in the best interests of the Children.

[12] For the reasons that follow, I find that it is in the best interests of the Children to have a parenting environment that creates an opportunity to foster a renewed relationship with the Father, and thereby achieve maximum contact with both parents. I disagree with the Father that this can be forced by an extreme intervention, and I disagree with the Mother that it is too late and ought to be left to the Children. I thereby deny each of the parents the primary remedies that they sought. I have determined that it is in the best interests of the Children to implement a comprehensive parenting plan, involving disengaged parallel parenting, counselling for the parents and graduated, step-up access for both Children.

Initializing

[13] The parties jointly requested that I anonymize these Reasons. As this decision affects the custody and access of minor children, I grant the motion to anonymize these Reasons.

I. THE ISSUE FOR DETERMINATION

[14] The Father initiated this Application on November 10, 2014 seeking shared custody of the Children and child support. The Mother answered by seeking myriad economic relief and a competing claim for sole custody of the Children and child support. Almost four years later, all of the economic issues were settled, leaving for determination at trial the issues of custody and parenting.

[15] At the core of the parenting issue is the Children’s lost relationship with their Father. They have not stayed overnight with him since September 2014. Their Saturday visits with him stopped on May 20, 2017, because they refused to engage with him. From May 2017 to June 2018 they saw him only two hours once a week, until that stopped too. Since June 2018, they have seen him only twice: on Child 2’s birthday in November 2018 and on Father’s Day, each time for 1.5 hours.

[16] The parties agree on basic facts and chronology, including that the Father is no longer a part of the Children’s lives. They vehemently disagree on how this came about. The Father’s theory that the Mother has alienated the Children from him stands in stark contrast to the Mother’s contention that the Children have made a decision, which ought to be respected, that they no longer want the Father to be part of their lives.

[17] Each parent agreed that it is in the best interests of the Children to have a meaningful relationship with both parents. At the opening of trial, the parents each presented their proposed terms of Judgment, revealing their vision of how best to achieve this.

A. The Father’s Proposed Judgment

[18] The Father amended his Application on June 29, 2016 to seek sole custody of the Children, on the theory that removing the Mother, and her alleged alienating ways, would cure the Children’s relationship with him. The terms of Judgment sought by the Father may be summarized as follows:

a) A Reversal of Custody: The Father seeks sole custody of the Children, including no requirement to consult with the Mother on any decision respecting the Children.

b) Parenting: The Father seeks an Order that the Children immediately be enrolled in Blended Sequential Intervention that would include the following features:

(i) For a period of no less than 90 days, the Children would have no contact with the Mother, who would not be advised of the Children’s whereabouts, would initiate no contact with them and would resist any contact that they might seek to have with her;

(ii) During this time, the Children and the Father would engage in counselling, without the involvement of the Mother who would, indeed, be restrained from any participation or even contact;

(iii) At the end of the intervention, and before returning home with the Children, the Father and the Children would go on a vacation for no less than five days;

(iv) The resumption, timing and nature of the contact between the Children and the Mother would depend on the outcome of the counselling, the Mother’s conduct during the intervention, and would be determined by further Court order based on re-assessment of whether the Mother’s conduct is consistent with establishing a relationship that is in the best interests of the Children;

(v) The Blended Sequential Intervention would be enforced by the police services should the Mother fail to deliver the Children to the Father, should the Mother interfere or should the Children fail to cooperate.

c) Costs: The Father asked that the Mother pay the costs of the Blended Sequential Intervention, estimated at $35,000 - $50,000, as well as costs of the trial.

B. The Mother’s Proposed Judgment

[19] The Mother sought an Order for sole custody of the Children, and submitted that I should not order any access by the Children with the Father, instead leaving parenting time “at the discretion of each child”.

C. The Parties’ Alternative Submissions – Disengaged Parallel Parenting

[20] I asked the parties to each provide, as part of their closing submissions, alternate positions for parenting in the best interests of the Children, in the event that I should not accept either of their primary positions. I did so because my duty in determining the parenting and custody that is in the best interests of the Children is not limited to that reflected by the parties’ primary positions. I thereby afforded the parties an opportunity to make submissions on alternate comprehensive parenting arrangements for the Children that might meet their needs and circumstances.

[21] Each party provided alternative submissions which, I recognize, do not reflect the primary relief sought by either. Both parties proposed parallel, disengaged models of co-parenting that included a step-up parenting schedule, plans for communication and exchanges and decision-making protocols, and a series of multi-layered, mutually applicable terms that were substantively similar, if not identical, to foster reduction in conflict while co-parenting. The main differences between the alternate positions submitted by both parties were on the issues of sole or joint custody, the details of the step-up parenting schedule and whether parental counselling should be ordered. The parties’ alternate positions for parenting and custody were as stark in their similarity as the primary positions were stark in their extreme contrast.

D. The Issue: What Parenting and Custody is in the Best Interests of the Children?

[22] There is a strange symmetry in the primary positions advanced by each parent. Each seeks sole custody, each stating that the other ought to go away and leave the parenting of the Children, at least for now, to the other. Each plan proposed by each parent provides no certainty that the Children will have a meaningful relationship with both parents, notwithstanding their submission that this is in the Children’s best interests.

[23] The parties were not married. As such, the applicable legislative provisions pertaining to custody and access of the Children are contained in Part II of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Section 19(a) states that one of the purposes of Part II is “to ensure that applications to the court in respect of custody of, incidents of custody of, access to and guardianship of children will be determined on the basis of the best interests of the children”. The lens through which the issues of custody and access must be approached is not from the perspective of the parent claiming these entitlements, but rather from the standpoint of the child: MacGyver v. Richards (1995), 1995 CanLII 8886 (ON CA), 22 O.R. (3d) 481 (C.A.).

[24] My task is to determine the parenting and custody that is in the best interests of these 15- and 12-year-old children. I will do so from the standpoint of the Children, focusing primarily on the Children’s needs to determine what arrangements are best for each of them.

II. ANALYSIS OF THE EVIDENCE

[25] Four witnesses testified: the parents; Ms. Victoria Lang, a social worker and clinical investigator with the Office of the Children’s Lawyer (“OCL”); and Dr. Barbara Jo Fidler, a registered psychologist who conducted a Clinical Intake Consultation of the family in February and March 2018, followed by a feedback meeting with the parents on March 29, 2018.

[26] The Mother was a more skilled historian than the Father, who struggled to be precise on sequence and timing of events. However, they do not so much disagree on facts and chronology as they do on cause and effect. I find that they both presented as parents who love their Children and want the best for them. They just could not agree on how to accomplish this.

[27] Ms. Lang’s evidence was very helpful to understanding the parties’ circumstances at the time of the OCL investigation in the summer and fall of 2015. Dr. Fidler provided valuable insight through her intake assessment of the family in March 2018. She was careful to point out that she was not asked to conduct a custody and access assessment under section 30 of the CLRA, and offered no recommendations in this regard.

[28] An analysis of the trial evidence will allow for an understanding of the Children’s needs and circumstances, and will provide a basis on how best to provide for the Children’s parenting.

A. The Family

[29] The parties met and started co-habiting in 2001 or 2002. There was little evidence concerning the parties’ relationship prior to the birth of Child 1 in April 2003.

[30] The parties agreed that the Mother would stay at home to care for the child, while the Father would earn money for the family. He had normal work hours, but his commute added some three hours to his time away, so that his parenting time was largely in the evenings and on weekends.

[31] Child 2 was born in […] 2006. The Mother experienced a traumatizing post-birth complication. She resented that the Father failed to support her in dealing with this issue, she says by not fully realizing the severity of the situation or reacting accordingly.

[32] The Father denies that the Mother had any basis for resentment, and states that he was overwhelmed by her demands. He swears that he was active in the Children’s upbringing, taking the Children to swimming lessons on the weekend, and karate, art and piano lessons during the week. The Children practiced on a piano that had been gifted through the Father’s family.

[33] The Mother testified that the Father over-represented his involvement in the lives of the Children. She admits that the Father was present after work and on weekends, but states that he was largely disengaged and emotionally absent. She complained that he did not prioritize the Children’s needs. She wanted him to be more interested and involved, to be more of a partner in parenting decisions. The conflict between the parents escalated after Child 2’s birth.

B. The Emerging Conflict

[34] The Mother stated that her disappointment in the Father’s failure to address her medical condition after Child 2’s birth was unresolved and was compounded by other developments. The Mother had a miscarriage in 2012 that brought back ingrained resentments. Her parents died unexpectedly in a car accident, which caused more sadness. These significant events were highlighted by the Mother as examples of events during which the Father was emotionally absent and failed to provide support.

[35] Over time, this emotional hurt was compounded by the Mother’s frustration with the Father’s handling of the family’s finances. She felt that the Father was not truthful about his earnings, which in her view were never enough to put the family on a solid economic footing. The Mother stated that she felt as though she was raising three children, marshalling the Father through his day, trying to prod him along, endlessly attempting to reconcile the family’s budget to avoid further accumulation of debt.

[36] The Father testified that he was subject to physical abuse by the Mother. As examples, he stated that she struck him in the face, bit him on the forearm, kicked him in the ankle, beat him with a bottle, and sprayed him in the face with a household cleaning product. He stated that this abuse continued periodically and at times unexpectedly throughout the time period from 2006 to 2013. He did not report any of these instances to the police, or anyone else, for fear of embarrassment. The Mother did not deny that she had physical confrontations with the Father, stating that her attempts to “vent her frustrations” came out in the “worst possible ways”.

[37] The Father stated that the Children did not witness the physical abuse by the Mother, but that the Mother was at times physically abusive of the Children. The Mother adamantly denies this. The interview of the Children by Ms. Lang did not produce any evidence of physical abuse, although she recorded that the Children were witness to hostility in the household.

[38] The Father testified that he was also subject to emotional abuse. He stated that the Mother demanded that he be available to her throughout his work day, to address immediately any comment or question that she might have, regardless of his commitments at work. The Father painstakingly produced into evidence a number of printouts of minute-to-minute, then hour-to-hour, day-long chats featuring a continuous barrage of rapid-fire questions from the Mother concerning minutia of tasks not yet completed and complaints of chores to do next.

[39] For example, a chat of October 28, 2008 involved the Mother’s search for her missing music playlist. When dissatisfied with the Father’s explanation, she called him a variety of derogatory terms and stated that she was going to kick him when he returned home. On December 15, 2008, when he forgot to bring the stroller into the house from the garage, she wrote that he was a “loser” and stated that she did not “even know how you live with yourself”, then insulted him with demeaning and derogatory terms. On February 6, 2009, when he left dirty items in the sink, the Mother criticized his intelligence, and disparaged him in writing using four different iterations of derogatory terms to convey that he was lazy, inattentive and of low intelligence. In a chat of October 18, 2011, the Mother became increasingly critical of the Father’s inability to earn a higher salary and wrote that she hated him and hoped that he would be “struck by a streetcar” on his way home from work. She followed this with a further statement that she hated him and that he should break his skull against some cement. Each of these rants by the Mother was laced with profanity and expletives, involving a torrent of insulting and offensive comments.

[40] This sampling of chats was presented to portray a relentless stream of demeaning and insulting comments by the Mother. The Father stated that this continued for years. The Mother responded that the evidence contained in these electronic chats represents “bit and pieces of her life taken out of context”. She regrets the communications, apologized to the Father in court, and stated that she was always committed to the family and, as part of this, struggled to get the Father involved.

[41] I infer from the parties’ evidence that the poison of their electronic chats eventually leached into a hostile environment in front of the Children. Although the parties tried their best, the environment in the household became increasingly embroiled in conflict and, in their small house, the toxicity was evident to the Children: even if only a portion of the exchanges in the chats found their way into the household. This is consistent with Ms. Lang’s reporting that the Children expressed that they experienced their parents’ animosity towards each other on a routine basis.

[42] In an electronic chat of October 19, 2012, frustrated by her inability to reconcile family expenses and blaming the Father, stating that he was either lying or incompetent, the Mother forbid him from entering the house: “Feel free to use the outdoor power for your laptop and sleep in the car if you need to”. He did so. In an email of January 28, 2013, the Mother banished the Father to sleep in the basement, decreeing that he not enter the house until the Children were asleep, and that he must leave the house before the Children awoke the next morning. The Father did so, not only that day, but off and on at the Mother’s request for seven months in 2013.

[43] I accept the Father’s evidence that he complied with these demands in an effort to keep the peace, while looking for a solution for the Children. I accept, as well, the Father’s contention that he maintained a relationship with his Children through these difficult times. He took them to their various lessons and found a way to connect with them notwithstanding the Mother’s demands and criticisms.

[44] The incessant conflict took its toll on both parents. By September 2013, the Father self-referred to a psychologist for counselling for depression and was diagnosed with Attention Deficit Hyperactivity Disorder. The Mother, who had been diagnosed in 2012 with Generalized Anxiety Disorder and had at that time undergone Cognitive Behavioural Therapy, sought a resumption of treatment.

[45] By December 2013, the parties decided to separate.

C. The Children’s Needs and Circumstances at the Time of Separation

[46] In late December 2013, the parents met with the Children and together told them of their mutual decision to separate. They told the Children that the Father would move out and they would stay in the home with the Mother. Neither parent remarked of any adverse reaction by either child, each testifying that the Children accepted without comment that the family would shortly divide.

[47] Having heard the evidence of the parties, and having considered the evidence in the context of the documentary evidence adduced by them, I have concluded that the Children had a meaningful relationship with each parent at the time of separation. The parents’ roles were different, but each was valuable and meaningful to the Children who were, at the time of separation, 10 and 7 years old. The parents were incompatible, but nurturing to the Children.

[48] The Mother was clearly the primary caregiver. She had cared for the Children since birth. I do not accept that she was physically abusive to the Children at the time leading to separation, although she contributed to a hostile environment in the household by reason of her incessant conflict with the Father. She loved the Children, tended to their health and educational needs, guided them and cared for them.

[49] The evidence establishes that the Father loved the Children, and they loved him. He had a different role than the Mother. He supported them, encouraged them at their activities and strongly cared for them. I accept that his relationship with them was strained around the animosity between him and the Mother, but not in the way that he described. The Father stated that the Mother alienated him from the Children “from birth”. I did not see evidence of this. There was undoubtedly constant friction between the parents. But I find that the Father forged a strong bond with the Children that was present at the time of separation, and is evident in the events that happened next.

D. The Period of Peaceful Parenting

[50] Apart from their interpretations, there is no meaningful discrepancy in the parties’ evidence of the events that occurred from the date of separation, January 1, 2014, to August 30, 2014.

[51] Within a week of separation, the Father met a woman. He told the Mother that he had met “the love of his life”. The weekend after, he went away with her, beginning a new relationship within two weeks of separation. On February 14, 2014, the Father moved out of the basement of the family home, where he had resided since separation, to begin living with his new partner.

[52] The Mother was supportive. The Mother helped the Father organize his belongings and provided furnishings for the new apartment he would share with his new partner. The Mother thought that if he was happy, the Father might be a more engaged and collaborative parent.

[53] The parties disagree on when the Father told the Children that he was moving in with his new partner. The Father stated that this was discussed early, but the Mother contends that it was dropped on the Children the day before the move. I accept the Father’s evidence on this point, as the parties concur that the Children went to lunch with the Father to meet his new partner, and in time inspected the bedroom that was designated for them in the Father’s new apartment. The Mother met the Father’s new partner, in a meeting that was said to have been civil and cordial.

[54] The Father recalled that the Children were fine with the Father’s move and new relationship: indeed, even excited by the new adventure and undoubtedly relieved by the reduction of conflict in their home. The Mother emphasized that the Children were confused but gave no evidence of disruption in the Children’s relationship with their Father.

[55] In the period from February to September 2014, the Children resided with the Mother in the family home. She continued as their primary caregiver. The Father had regular communications by email with the Children. They saw him each Tuesday, for two hours when he would take them to piano lessons. They started weekend visits with him on March 15, 2014, for six hours, and on April 12, 2014 had their first one-night sleepover. The Mother readily agreed to the Children’s visits with the Father, including overnight, testifying that she wanted the Children to have the love of both their parents, and recognized the importance to the Children of continued healthy relationships with both.

[56] The exchanges of the Children, from the Mother to the Father, were conducted at the curb. The pick-ups and drop-offs at the family home were uneventful and cordial. When the Father came to the door, there was no conflict. Often, the Mother would accompany the Children to the Father’s car, acknowledging the new partner when she was present. There was no evidence of tension or of hesitancy on the part of the Children to visit their Father and, along with him, his new partner.

[57] The Mother highlighted some email communications with the Father during this time where they disagreed on issues pertaining to the Children. I find these to be largely civil and unremarkable, especially in comparison to the bitterness in the chats between the parties in the period prior to separation. Both parties testified that during this time, they communicated effectively, by telephone and electronically, on issues affecting the Children.

[58] The Children had one-night sleep-overs with the Father every other weekend in April and May, three weekends in June and one weekend in July 2014. The Father recalled that the Children were happy during these times. The Mother testified that she became concerned because the Children would return to her increasingly anxious and nervous. However, these concerns did not prevent the Mother from agreeing, in August 2014, that the Children would stay with the Father and his partner every weekend, now for two-night sleepovers, one involving a cottage trip to Kawartha Lakes. The Father recalled these visits from March to September 2014 fondly, stating that the Children enjoyed themselves with activities and outings.

[59] All of this ended in September 2014.

E. The Turning Point

The News of the Engagement

[60] On August 29, 2014, while the Children were with the Father for a two-night overnight visit for the Labour Day long-weekend, he announced to the Children that he and his partner were engaged to be married. The Father testified that the Children were subdued. He asked if they would attend and be part of his wedding. They wanted to think about it, and subsequently told him that they did not want to attend. The Children’s decision to decline attendance at their Father’s wedding showed, through conduct, that they were not comfortable with his new relationship.

[61] When the Father spoke by telephone with the Mother to convey his news, she became upset and angry, despairing of the implications. She testified that she was concerned about the Children, who had been told of this news at the start of a long weekend, depriving them of the opportunity to discuss it with her. The Father conceded in cross-examination that it was a mistake not to consult with the Mother concerning the best way to communicate to the Children his decision to marry.

The Conflict on Terms of Separation

[62] On September 3, 2014, having just announced his engagement, the Father sought to discuss with the Mother changes in the child support that he was prepared to pay her and his plan for resolving the outstanding economic issues between them. When the Mother responded, by email, that she was not prepared to discuss these issues at that moment, the Father persisted, writing that the timing of these discussions were not up to her: “Unfortunately, you don’t have the luxury to postpone things”. He then unilaterally reduced the amount of child support and special expenses that he had been paying since separation. Additionally, he proposed a form of separation agreement that called for the sale of the family home in which the Mother and the Children were residing.

[63] The Father was insensitive to the two trigger points that he had just touched on. By unilaterally reducing the amount of support, the Father surgically struck the nerve of financial inadequacy that the Mother had long dwelled on. By demanding the sale of the family home, at the start of a school year, the Father created uncertainty about the Children’s ongoing ability to reside in the home they have lived in since 2008 which, given their age, was the only home they had ever known. He had unwittingly unleashed the two most significant points of pent-up tension in his relationship with the Mother.

[64] The Mother’s email to the Father of September 8, 2014 represented a fundamental shift in their parenting of the Children. The Mother stated that the Father reneged on the economic terms for settlement that she thought were agreed upon in principle, and that he was thereby threatening the Children’s home, their support and the Mother’s ability to return to the workplace. She testified that he had broken the trust that she had in him and wrote that he had “no honour”. She maintained that he did not have the Children’s best interests in mind, including that he was insensitive to their ability to process his developing relationship while handling the start of a new school year. The Mother wrote that she would no longer speak to the Father directly, limiting all communications to writing, that she would not meet with him when exchanging the Children, and that she was unilaterally suspending overnight access:

I will get back to you about future plans for them to spend time with you once I have had the chance to hear clearly from them what they want. I want them to have a proper relationship with you, but I’m not going to force them into more than they’re comfortable with right now. Not any longer. They already have enough to adjust to.

[65] This unilateral pronouncement by the Mother that the Children’s access with the Father would be placed firmly in their hands was made when Child 1 was eleven years old and Child 2 was not yet eight. She saw nothing wrong with leaving the weighty responsibility of determining their relationship with a parent on such young children. The evidence showed that the two themes of the Mother’s position in this trial, that her restriction of the Children’s access to the Father was based on a desire to protect the Children in sensitive times and that the wishes of the Children were paramount in determining parenting, had their origin on September 8, 2014 and, although molded to fit other events and occurrences, continued unabated thereafter to this day.

[66] On September 10, 2014, the Father requested weekend access, and the Mother offered a day visit, citing the Children’s preferences: “I’ve suggested next weekend to them and they think they would be comfortable with a day visit.” On September 30, 2014 the Father requested access for an overnight visit and the Mother again offered a day visit, citing the Children’s preferences. And so, the pattern began.

[67] The parties have conflicting evidence of how the Children felt during this time. The Mother stated that they were confused and hurt. The Father stated that they were fine. The events that would unfold established that they were far from fine.

The Increasingly Strained Environment for the Children

[68] On September 30, 2014, the Mother had a medical emergency, necessitating transport by ambulance to hospital. This occurred while the Children were with their Father at their Tuesday piano class. The Mother asked that the Father bring the Children to the hospital. He refused, preferring to take them to his residence. The Children overheard the parents’ heated exchanges on this issue, which also featured the involvement of the Father’s fiancée, coaching on his behalf. Thereafter, the Mother allowed only day-time access by the Children with the Father in October 2014, justifying this restriction on the basis that they were anxious about being with him.

[69] In the face of his downward spiraling relationship with the Children, on October 29, 2014, the Father married his new partner. He did not tell the Children or the Mother his wedding date beforehand. The Father and his Wife then travelled to Europe on a honeymoon from October 30, 2014 to November 9, 2014. On November 16, 2014, the day after the Children celebrated their Mother’s birthday, the Father told the Children that his marriage had occurred. The Father testified that the Children did not react, at all, to his news of his marriage. The Mother contends that the Children were anxious, confused and disillusioned by the Father’s conduct. She stated, and I agree, that he gave priority to his new life over the feelings and sensitivities of the Children.

[70] The Children’s access to the Father through November and early December 2014 was limited to the Tuesday night piano lessons, when the Father would pick up the Children, accompany them to the piano lessons, and return them home, and day-time visits on two Saturdays in October and one Saturday in November 2014. The Father noted that the Children were becoming increasingly colder and more distant in their relationship. They would not engage with him or his Wife. They were not responsive to questions, wanted to spend most of the visit in their room, and repeatedly asked when they could return to their Mother.

[71] On December 16, 2014, during a break in her piano lesson, the Father decided to read to Child 1 a letter that he had written, he says to apologize for the distress caused to her by the transitions since separation and to acknowledge his role in the separation. The Mother has different evidence, stating that the Father disclosed to Child 1 the conflict between the parties, blame for the breakdown of the relationship and his sense of having been marginalized. The letter was not tendered into evidence at trial. I do not accept the Mother’s evidence on this point, which is based on unreliable hearsay. I do accept, however, the Mother’s evidence that the Father’s message, delivered suddenly to an eleven-year-old in the piano teacher’s premises in the setting of a lesson, caused Child 1 distress, anxiety and confusion, and showed lack of sensitivity for the child’s needs.

[72] I accept the Father’s evidence that he did not disparage the Mother in the letter that he read to Child 1 in December 2014. In fact, considering all the evidence, I accept the Father’s testimony that he did not disparage the Mother in discussion with the Children at any time.

[73] The Father recalls vividly that Christmas 2014 was a landmark in the Children’s strained relationship with him. When present with him, his Wife and his parents for a day-time visit on December 27, 2014, the Children were distant and dismissive, responding to him with only single word answers. They ceased to engage with him or anyone with him. The parents both knew at this time that the Children had a problem.

F. The OCL Involvement

[74] In the period from Christmas 2014 to April 2015, the Children had access with the Father weekly during the Tuesday evening piano lessons, and day-time visits of four hours on one Saturday in January, one Saturday in February, none in March, and two Saturdays in April 2015.

[75] The email traffic between the Children and the Father stopped and there was no telephone contact. The Mother says that this was all the access that the Children wanted. The Father testified that the Children were increasingly uncivil with him, facing the wall while with him in an elevator, ignoring him during time together, and responding to him only with one-word answers. He was at a complete loss as to how to improve his relationship with the Children.

[76] On April 24, 2015, the parties attended their first case conference and agreed on terms of a consent Order reflecting their agreement on interim support, a plan for the sale of the family home and, importantly, the Court’s request for an investigation by the OCL.

[77] Ms. Lang was appointed by the OCL to conduct an investigation regarding the custody and parenting arrangements for the Children. Ms. Lang is a social worker, with undergraduate and post-graduate degrees in this area, who has been a full-time employee of the Children’s Aid Society since 2010. She was accepted by the parties as a qualified clinician with material evidence concerning her investigations. Ms. Lang issued an interim report on October 14, 2015 and a final report on April 1, 2016, both of which will be referred to in these Reasons. She did not make any final recommendations regarding parenting or custody.

[78] Ms. Lang interviewed each of the parties, and then observed and interviewed the Children in the Mother’s home on August 27, 2015 and in the Father’s home on August 29, 2015.

[79] Ms. Lang was alert to the Father’s statements that the Mother was abusive of the Children but did not detect any signs of physical or emotional abuse in either party’s parenting. She made no observation that would cause her to question the ability of either parent to attend to the needs of the Children. The Children presented as anxious, but well-cared for.

[80] Child 1 was observed as doing well academically, then-enrolled in a gifted program. She had been seen medically for anxiety. Child 2 was noted as outgoing, and both Children were in an obviously close relationship. They were observed as well cared for, intelligent, sensitive, anxious and creative children who were more at ease with their Mother, who has always been their primary care giver, than their Father.

[81] When observed at the Mother’s home, the Children were noted to be “happy, perky and bubbly”, proudly displaying to Ms. Lang their artwork and schoolwork. They appeared to interact easily and comfortably with their Mother.

[82] This was in significant contrast to the observation of the Children while with their Father on August 29, 2015. When in his home, the Children appeared to Ms. Lang as “sullen, slouched and barely spoke”. They did not smile or laugh, they spoke perfunctorily only when spoken to, sat on the corners of the couch or their bed and were awkward and uncomfortable. This visit was just the third time that the Children had been with their Father from April to August 2015.

[83] Ms. Lang noted that Child 1 expressed disappointment that the Father had moved too quickly with his relationship with his Wife. There was nothing about her Father’s parenting that concerned Child 1, but she felt uncomfortable with the Wife. Child 1 stated that visits with the Father for weekly piano lessons and one weekend day a month was all that she wanted at that time.

[84] Child 2 echoed Child 1’s sentiments, particularly about her unwillingness to engage with the Father to a greater extent. She recalled periods of hostility in the household prior to separation, and felt that it was better that her parents were no longer together. There was no report of any abuse or harm caused to either Child by either parent.

[85] Ms. Lang was questioned at trial on the Interim Report that she delivered on October 14, 2015. Ms. Lang concluded, at that time, that the Children were clearly uncomfortable with their Father. Although they did not want to end visits with him, they wanted the visits to be shorter. They were not able to explain the reason why, other than to comment that they felt that he moved too quickly in the relationship with his Wife. They had nothing else negative to say. They were not fearful of him. They were not angry with him, just disappointed.

[86] Ms. Lang concluded at that time that the Children had consciously or sub-consciously aligned with their Mother’s view of the Father, and had embraced the power provided to them by their Mother to decide when they see, or refuse to see, their Father. The Mother felt uncomfortable in the presence of the Father and this sentiment had transferred to the Children.

[87] Further, the Mother was at that time withholding from the Father critical information concerning the Children’s health, which she justified on the basis that Child 1 had asked for privacy in her medical care. Ms. Lang observed that this caused the Children to view the Father as a secondary parent. Overall, Ms. Lang noted that the parties were simply unable to communicate effectively about their Children, as they had done previously.

[88] Ms. Lang testified that the Mother’s surrender to the Children, then 12 and 9 years of age, of the power to decide when to see their Father ceded to them an unreasonable amount of decision-making power about their relationship with their Father, shifted the weight of this relationship to the Children instead of the adults and presented this relationship as an option as opposed to a necessity, thereby consigning the Father to a secondary or minor role in the Children’s lives. In this aspect, I find that the Mother’s parenting was not in the Children’s best interests in that she simply gave the control and responsibility that should have belonged to her, as the parent, to them.

[89] In her Interim Report of October 14, 2015, Ms. Lang made two recommendations to curtail the eroding relationship between the Children and their Father: the family and the Wife were to participate in counseling that specifically looked at the Children’s relationship with the Father, and; the parties needed to implement a consistent parenting schedule and should, at a minimum, maintain the parenting schedule of the Children’s access with the Father at weekly piano lessons and once each month for 4 hours until the counselling begins, with access to increase through the counseling when the Children are ready.

[90] Ms. Lang would come to discover, at the time of her next contact with the parties some four months later on February 1, 2016, that the parties had not by then initiated counselling. Indeed, despite court orders, the parties would not initiate counseling until July 2016.

G. The Children’s Needs and Circumstances During the Litigation

[91] While the parents disagreed on many parenting issues, the fulcrum on which their protracted disputes would pivot was the issue of counselling for the Children. An inordinate portion of the trial was consumed in the parties’ debate over which parent was responsible for the failure to provide their children with the counselling that each parent recognized as critical for the Children and which was stressed in importance by Ms. Lang. I conclude that each parent had a role in stringing the counselling along interminably until its usefulness for the Children had expired. The issue of which parent is more at fault for the failure to provide counselling to the Children is material to the Father’s contention that the Mother strategically delayed and frustrated counselling as part of her design to alienate the Children from him. I will outline and analyse this evidence in order to assess this submission.

Both Parents Voiced the Need for Counselling for the Children

[92] In his lawyer’s letter of November 18, 2014, the Father proposed that the Children should start counselling. He said that he did so because he wanted the Children to have a good relationship with both parents. The Mother did not respond to this suggestion, other than to state, through her lawyer, that while she “continues to foster and encourage the children to have regular contact with their father, she cannot and will not force unwanted access, especially given the children’s expressed wishes and the emotional impact on them.”

[93] Ms. Lang recorded in her Interim Report that in August 2015, the Mother was “open to counselling for the entire family to help the girls move forward and accept their new life circumstances.” This is consistent with the endorsement rendered by Kiteley J. on April 24, 2015 that “the Mother sought counselling for the Children”.

The October 2015 Order

[94] The Father obtained an Order on motion heard on October 1, 2015 (the “October 2015 Order”) that included the following terms:

a) The Father would have interim access with the Children every Tuesday evening for their piano lessons and every second Sunday for four hours from 10:00 am to 2:00 pm. The Father undertook that his Wife would not be present for the access visits;

b) The Mother was ordered to provide the Father with an Offer to purchase the family home by November 1, 2015, failing which the house would be listed for sale.

[95] The endorsement rendered further to the October 2015 Order detailed the parties’ agreement to arrange for counselling for the Children. On October 30, 2015, upon receipt of Ms. Lang’s Interim Report, the Father proposed that the Children should start counselling.

The Medical Issues

[96] The Father learned in November 2015, through the Mother’s Settlement Conference Brief, that Child 1 had a serious medical issue. Masses had been identified on her back that necessitated investigation by a pediatric oncologist. The Mother had not informed the Father of this serious development. She had not consulted with him on the recommended alternatives to treatment, findings, or next steps in the child’s care. She left it to be addressed at a Settlement Conference.

[97] The Children had visits with the Father on alternating Saturdays in October and November 2015: October 4, 17, 31 and November 14 and 28, 2015. It is telling that throughout these access visits the Father was not able to relate with Child 1 on the potentially life-altering medical situation that she was confronting.

[98] The Mother testified that she did not disclose this medical information to the Father at Child 1’s request. At that time, Child 1 had the right to privacy in her medical treatment, but the Father had the right to know what the Mother knew. At trial, the Mother apologized for the non-disclosure to the Father, stating that she was overwhelmed, unclear on how to handle this issue, and now fully understands her obligation to involve the Father in the Children’s medical issues.

[99] A biopsy conducted on Child 1 on December 2, 2015 cleared the medical concern that had been identified, and the medical issue resolved. The Father was notified of follow-up appointments, and attended and supported to the extent that Child 1 permitted.

[100] By December 8, 2015, through exchange of lawyer’s letters, the Mother agreed to provide the Father with details of the Children’s medical treatment. The Mother consented to an Order rendered in June 2016 to provide the Father with “all information and contacts pertaining to medical or educational professionals who have dealings with the Children”.

The January 2016 Order

[101] In the period from October 30, 2015 to January 2016, the parties exchanged lawyer’s letters in an effort to agree on a counsellor for the Children, without success. The Father proposed that they select a therapist from his Employee Assistance Program (“EAP”). The Mother questioned whether the EAP was able to provide the family-based therapy that she considered necessary.

[102] Some ten lawyer’s letters were exchanged, from November 2015 to January 2016, each espousing the importance of immediate counselling for the Children and each posturing for control of the counselling for reasons that had nothing to do with the best interests of the Children. The Mother stated that she distrusted a therapist appointed by the Father’s benefits program because she suspected “bias”. The Father similarly distrusted the Mother’s judgment.

[103] Ultimately, on January 6, 2016, the Mother provided the Father with a list of four therapists acceptable to her, who she said she had interviewed, and asked the Father simply to select one. The Father did not respond. Instead, he advanced a motion, supported by an affidavit sworn January 18, 2016, in which he deposed that efforts to schedule counselling with the Mother “have been futile” and that he believed she was purposefully delaying counselling.

[104] The Father’s motion of January 18, 2016 was dealt with on consent, resulting in an Order (the “January 2016 Order”), that established a protocol for the Mother’s purchase of the family home by August 1, 2016, established the amount of interim child support to be paid by the Father and, ordered that the Father would provide a direction allowing the Mother to contact the EAP to obtain a list of therapists. The Mother was to pick one no later than March 1, 2016.

The Efforts to Coordinate Counselling from February 2016 to June 2016

[105] On February 24, 2016, the Mother’s lawyer wrote that the EAP does not provide a list of therapists, but rather assigns a therapist, and the suitability of the therapist is assessed at the initial intake consultation. The Mother raised a concern that the EAP did not provide specialized family therapy involving children, but funded only general therapy.

[106] On February 26, 2016, the Father’s lawyer wrote that he would take the steps necessary to initiate the counselling, by contacting the EAP and selecting a counsellor, after which he would advise the Mother of the selected counsellor. On March 2, 2016, the Mother stated, through counsel that she agreed. After a three-letter skirmish on scheduling, on March 16, 2016 the Father’s counsel reported that the EAP had arranged an initial therapy session with a counsellor on March 21, 2016.

[107] In a letter of March 17, 2016, the Mother proposed using the first day of counselling for each party to separately meet with the counsellor, and sought the Father’s agreement. The Father did not respond until a letter forwarded by his counsel 23 minutes before the scheduled start of the session. As such, the opportunity for counselling on March 21, 2016 was lost.

[108] Five lawyer’s letters later, bickering raged about who was responsible for delay in counselling, each blaming the other for scuttling the process, until the Father’s lawyer advised on April 8, 2016 that the EAP was not able to provide family therapy counselling of the nature needed by the Children, vindicating the statement made by the Mother in this regard on February 24, 2016.

[109] While the parties were in the midst of this interminable exchange of lawyer’s letters, jockeying for position in controlling their Children’s counselling, Ms. Lang released, on April 1, 2016, the OCL’s Final Report, which was based on interviews conducted by Ms. Lang of the parents on February 1, 2016. She did not speak with, or observe the Children at that time.

[110] Each party conveyed to Ms. Lang their objective in initiating counselling for the Children, and their frustration that this had not yet begun: each blaming the other. Ms. Lang was very concerned that the counselling had not initiated and told the parties that this needed to occur immediately. Ms. Lang’s final report of April 1, 2016 conveyed to the parents the following:

a) The OCL’s “great concern” that counseling for the Children had not yet begun. The OCL communicated to the parties clearly its conclusion that “it is in the best interests of the children for their parents to address this issue urgently and to commence work with a psychologist as a matter of great urgency”;

b) The Father should be notified of all of the Children’s medical appointments in advance so that he can participate in the decision-making for the Children.

[111] At this point, the parties did not need the OCL’s advice to know that there was a failure in addressing the Children’s needs. The Children’s visits with the Father, which continued from January to April 2016 for piano lessons every Tuesday and every other Saturday for four hours, were increasingly strained and anxiety-riddled events. The Children were no longer even responding to the Father when he spoke to them. If they did respond, they were rude and dismissive.

[112] Perhaps in reaction to the strong statement of urgency made by Ms. Lang, on April 13, 2016, the Mother proposed to the Father that he simply provide a list of four proposed therapists and she would select one, or the Father could select one of the therapists identified by the Mother in her counsel’s letter of January 6, 2016. In either event, she urged that a counsellor be identified and activated immediately. On April 25, 2016, having received no response, the Mother’s counsel followed-up with a letter wherein she emphasized the Mother’s position that “it is imperative for the children to move forward with appropriate therapy as they are experiencing increasing issues with access currently”. The Father responded through counsel on April 29, 2016, that he would bring yet another motion to determine the issue of selection of a counsellor.

[113] On May 4, 2016, the Father rejected considering any list of counsellors proposed by the Mother, announcing for the first time that his distrust of her selection was based on his suspicion that she had an inappropriate amorous relationship with a treating psychotherapist. The Mother denied any such relationship. Even this suspicion, and its questionable disqualifying effect on the Mother’s ability to research counsellors for the Children, did not explain why the Father declined to act on the Mother’s proposal on April 13, 2016 that he should compose a list of four therapists from which she would choose one.

[114] On May 10, 2016, the Mother suggested another solution. In the absence of any list from the Father of proposed counsellors, and on the basis of the Father’s rejection of any therapists proposed by her, the Mother proposed that the parents request and accept a recommendation for counselling from the Children’s pediatrician. Since she had treated the Children since birth, the Mother suggested that the pediatrician could provide a wise referral in the Children’s best interests. The Father rejected this suggestion and, instead, brought another motion.

The June 2016 Orders

[115] The Father’s motion of June 7, 2016 was settled, such that two Orders were rendered on consent: an Order stipulating access by the Children with the Father (the “June 2016 Access Order”), and an Order addressing a variety of relief (the “June 2016 Order”), as follows:

a) The Father was provided with access to the Children for three Saturdays consecutively, each from 10:00 am to 6:00 pm, on a four week schedule;

b) The Father was provided with authority to solely select a therapist to conduct the counselling of the Children, the first session to involve only the parents, with the Mother being provided with all details;

c) The Mother was to provide the Father with all information and contacts pertaining to medical or educational professionals who have dealings with the Children;

d) The Mother was ordered to notify the Father of any upcoming medical appointments, with sufficient notice to permit him to participate meaningfully;

e) The Father was granted leave to amend his pleadings to include a claim for sole custody of the Children.

[116] In compliance with the June 2016 Order, the Children initiated counseling with a therapist selected by the Father: Ms. Stella Kavoukian.

[117] The Father’s desire to amend his pleadings to seek sole custody of the Children was based on his view that by the delay in arranging for counselling, and unilateral restrictions in access, the Mother was purposefully alienating the Children from the Father.

Newly-Generated Conflict After the June 2016 Orders

[118] In accordance with the June 2016 Access Order, the Children had three Saturday access visits with the Father in June 2016, each from 10:00 am to 6:00 pm: June 12, 19 and 25, 2016. The Father chose to have his Wife present for these access visits even though he had undertaken, according to the October 2015 Order, that she would not be present. The Children reported this to their Mother, who through counsel challenged the appropriateness of the Wife’s participation in access visits.

[119] But the act whereby the Father inflicted sizable harm to his tenuous, flailing relationship with the Children occurred on Saturday, June 25, 2016. As the Children had by then adopted a pattern of sitting on their bed, silently “on strike” for the bulk of the eight hour duration of the access visit, the Father decided that the way to restore a civil relationship would be to remove the door to the Children’s bedroom, relied upon by them for comfort and privacy.

[120] Later, considering this step, Dr. Fidler would testify that this was “not a good parenting move”, made out of desperation and showing poor parenting judgment.

[121] The Mother’s reaction was swift and determinative. On July 2, 2016, the Mother’s lawyer wrote that the door removal deprived the Children, now aged 13 and 10, of privacy during the time that they were in his residence. The Mother demanded that the Father replace the door on the Children’s bedroom and comply with his undertaking to not have his Wife present during the visits.

[122] The Father stubbornly took issue with both points. In terms of the presence of his Wife at the access visits, the Father through counsel advocated a technical interpretation of his undertaking, stating that it applied to access established by the October 2015 Order but not access provided by the June 2016 Access Order. I find that not only was this a distinction without a difference, but it showed that the Father failed to appreciate the Children’s sensitivities: that they had expressed a clear preference that his Wife not be present.

[123] On the issue of the removal of the door, the Father contended that since he did not have overnight access with the Children, the removal of the door was not relevant. At trial, the Father acknowledged the folly of seeking to rekindle a flickering relationship by removing the Children’s bedroom door.

[124] In response to the Father’s insistence that access visits take place with the involvement of his Wife, and with the door removed from the Children’s bedroom, the Mother’s lawyer wrote on July 8, 2016 that she would suspend access, as the Children were firmly resisting visits with the Father and she had no means by which to force them to attend.

[125] On July 12, 2016, the Father’s lawyer wrote that his client believed that the Mother’s conduct was a deliberate attempt to “frustrate access, to hamper, block and delay counselling and to breach Orders of the Court” in what he considered to be a “clear campaign of parental alienation” on the part of the Mother. The Mother’s lawyer responded that access by the Father with the Children could resume immediately if he replaced the door on the Children’s bedroom and agreed that his Wife would not be present during access visits, “for the time being”. The Father refused, resulting in both parties bringing further motions.

[126] The Children did not visit with their Father, apart from the Tuesday night piano lessons, from June 25, 2016 to determination of the motions brought on August 25, 2016.

The August 2016 Order

[127] On August 25, 2016, both parties advanced motions on issues of parenting and custody. The Father sought an interim order reversing custody of the Children from the Mother to him. The Mother sought an Order for sole custody.

[128] The Court noted that the parties had greatly differing evidence on the reasons for the suspension of the weekend access visits. The Court stated that the counselling proposed for the Children was “absolutely essential”, and must continue with the full commitment of the parties. The Court ordered that the Father’s access visits be resumed immediately.

[129] The Court declined to make any Order on custody, or any change in primary residence, as the significantly conflicting evidence in the two records did not allow for such determinations on motion. Rather, on August 25, 2016 the Court ordered (the “August 2016 Order”) that the Father shall exercise access with the Children in accordance with the June 2016 Access Order, and that the Father shall ensure that the door to the Children’s bedroom is not removed, at any time.

[130] The parties complied with the August 2016 Order. The Children visited with their Father three Saturdays in September, four Saturdays in October, three Saturdays in November and four Saturdays in December 2016, which included both Christmas Eve and New Year’s Eve.

The Counselling with Ms. Kavoukian

[131] In accordance with the June 2016 Order, the Father selected Ms. Stella Kavoukian to provide counselling for the Children. The Mother complied, although she stated at the outset, on July 2, 2016, her objection that the counselling should not take place in a closed session, as was Ms. Kavoukian’s approach, but rather in an open session, as stated in the OCL’s Interim Report.

[132] Commencing on July 20, 2016 and continuing to November 18, 2016, the Children engaged in eight counselling sessions with Ms. Kavoukian. The Father took the Children to five of these sessions, and the Mother took them to the other three. The timing of all sessions was coordinated through letters between the parent’s lawyers. In the first three sessions, Ms. Kavoukian met only with the Children, and in the next three with the Children and the Mother, followed by two final sessions with only the Children.

[133] The Father recalled that the Children blamed him for “forcing” them to go to counselling, asking: “Why are you making us do this”? The Mother stated that they were similarly resentful of her insistence that they engage in counselling. Their resentment of counselling, and of their Father, did not relent through these sessions.

[134] The last scheduled session of December 14, 2016 was cancelled. On January 19, 2017, the Father’s counsel advised that “it appears that the counselling with Ms. Kavoukian will not continue”. No explanation was provided, except for the Father’s statement that the sessions “were not working”. Ms. Kavoukian was not called to give evidence at the trial.

The Debate Concerning Further Counselling

[135] In January 2017, the Father’s counsel wrote that Ms. Kavoukian had provided a referral to Mr. Howard Hurwitz, and that the Father was agreeable to the Children attending at counselling with Mr. Hurwitz. He also accepted the Mother’s suggestion that the counselling be open.

[136] On January 24, 2017, the Mother rejected the suggestion that counselling be conducted by Mr. Hurwitz, proposing instead that counselling be conducted by one of the four therapists first proposed by the Mother on January 6, 2016. The Mother renewed her proposal that the Father choose any one of the four therapists first proposed by the Mother over a year earlier, in order that counselling for the Children could resume immediately.

[137] The debate concerning the selection of a new therapist continued through an exchange of letters in February 2017, with the Father insisting on his unilateral entitlement to select the counsellor, Mr. Hurwitz, relying on the June 2016 Order. This debate ceased when the Father finally made inquiry of Mr. Hurwitz only to learn that he was not available to accept a referral.

[138] On April 26, 2017, the Father proposed that the Children’s counselling be conducted by Dr. Barbara Fidler. There is a sad, tragic twist in this. Almost a year earlier, on May 10, 2016, when the Mother proposed that the parties jointly ask the Children’s pediatrician to recommend a therapist for the Children, the pediatrician wrote a consultation referral to Family Solutions Toronto, a group of therapists with which Dr. Fidler was, at that time, associated. This consultation note, dated May 11, 2016, was provided to the Father in an affidavit sworn by the Mother on May 18, 2016. Had the Father accepted the Mother’s proposal to accept a referral from the Children’s pediatrician, counselling for the Children with Dr. Fidler could have begun a year earlier.

[139] While the debate concerning selection of a therapist re-ignited, the Children’s access visits with the Father were deteriorating. On the Father’s evidence, there was little meaningful exchange. I accept the Father’s evidence that the Children’s disrespect and disconnect reached unrealized heights. They were clearly “on strike”: protesting their disagreement with the mandatory visits by refusing to engage. The Father began simply to return the Children to their Mother even before the expiry of the eight hours allotted for their visits by court order. And so it was that on January 21 and 28, 2017, the Children were returned an hour or so earlier; on February 25, 2017 almost four hours early and, ultimately on May 13, 2017 almost five hours early.

Steady Degradation in Children’s Relationship with Father

[140] On May 20, 2017, Child 1 locked herself in the bathroom and refused to go out for an access visit. The Mother testified that she was powerless to cause the child to leave the house. Child 1 came out of the bathroom only after the Father drove away.

[141] The Mother asked the Father, through counsel, to agree to terms whereby he and his Wife would not: question the Children about their home life with the Mother; suggest to the Children that they have mental health issues; threaten or insist that he will bring the Children to Court; or deprive them of private time during the visits. The Father denied that any of this conduct had occurred and thereby refused to consent to these terms. He also refused to agree that his Wife would not be present for the access visits. On the basis of this disagreement, access was suspended.

[142] The access visit of May 13, 2017, which ended early with the Father’s return of the Children due to unbearable tension, would mark the last access visit that the Father had with the Children apart from the piano lessons. From the cancelled access visit of May 20, 2017 to June, 2018, the Children saw their Father only on Tuesday evening, for two hours for piano lessons.

The February 2018 Order

[143] On October 19, 2017, the parties brought further motions on parenting, custody, as well as on economic issues, again on highly conflicting affidavit evidence. The parties consented to an Order that they would attempt to resolve the issues of parenting, custody and counselling.

[144] On December 27, 2017, the parties jointly filed a consent motion, in writing, for a final Order on all economic issues, and a temporary Order to engage Dr. Fidler to conduct therapeutic counselling services for the Children. After modification to address issues identified in the proposed final order on the financial terms, an Order was issued on February 12, 2018 that finally settled all issues between the parties except for parenting and custody (the “February 2018 Order”). This Order required, on the consent of the parties, counselling for the Children, as follows:

a) The parents shall jointly engage Dr. Fidler to provide therapeutic services for the Children, and shall prepare the intake materials necessary for this to occur;

b) The parents shall share the expense of the sessions with Dr. Fidler with 80% of the expense being paid by the Father and 20% of the expense paid by the Mother. The parties will bear their own expense of any individual counselling that they may engage in with Dr. Fidler;

c) The issue of access and counselling, including the resumption of access between the Children and the Father, shall be guided by the recommendations of Dr. Fidler.

[145] By the time that the February 2018 Order was issued, the Children had not stayed overnight with their Father for 3.5 years, had not visited with him beyond Saturday visits and Tuesday evening piano lessons for over three years, and the Saturday day-time visits had not taken place for nine months, having stopped in May 2017. The Children had not had a meaningful discussion with their Father, or spent civil time peacefully with him for some three years.

H. The Involvement of Dr. Fidler

[146] Dr. Barbara Jo Fidler is a registered psychologist, acknowledged by the parties as widely-published and experienced in high-conflict custody and access situations. Over the course of her clinical experience and independent practice from 1986 to present, she estimates having assisted over 1,000 families. She was presented jointly by the parties as an expert in clinical psychology. A book that she co-authored, “Best Practice Guide: Emotional Harm and Parent-Child Contact Problems in High Conflict Separations”, Barbara Jo Fidler, Nicholas Bala and Howard Hurwitz [“Best Practice Guide”], was marked as a trial exhibit.

[147] Further to the February 2018 Order, Dr. Fidler was engaged by the parties and initiated a Clinical Intake Consultation with the parents at the end of February 2018, conducting meetings with the Mother, the Father and his Wife, and the Children. Dr. Fidler provided feedback to the parties and their lawyers on March 29, 2018. On July 11, 2018, she issued a report, entitled “Clinical Intake Consultation – Recommendations”, that the parties jointly filed and jointly rely upon (the “Fidler CIC Report”).

Limitation in Role

[148] Dr. Fidler explained what she was retained to do, and what she was not retained to do. Dr. Fidler’s role was to conduct a Clinical Intake Consultation and to identify options for the family. Dr. Fidler was not retained to conduct a custody and access assessment, under section 30 of the CLRA. She did not conduct a “best interests analysis” and did not provide any recommendations to the parties apart from the therapy recommendations contained in the Fidler CIC Report.

Dr. Fidler’s Observations

[149] Dr. Fidler noted that the Children were clearly angry with all the adults – the Father, the Mother and Dr. Fidler – for their role in compelling them to attend the meeting. The Children did not have any meaningful relationship with the Father, and Child 1 stated that she did not agree with her Mother’s statement that it was in her best interests to repair this relationship. Child 2 was observed concurring with Child 1’s statements, treating her older sister as spokesperson.

[150] Dr. Fidler met with the Children in the presence of the Mother, as they refused to meet with her on their own. The Children were certain that they wanted to terminate all contact with the Father, forever. They were convinced that they would not want to re-establish this relationship, stating that he was not responsive to their needs and would never change.

[151] The parents provided different views to Dr. Fidler of the nature and character of the Father’s relationship with the Children prior to separation, the Father contending that it was good and the Mother stating that it was largely non-existent. In regard to the reasons for the Children’s attitudes towards the Father after separation, the Mother stated that the Children were “on strike” and there was nothing she could do about it, and the Father voiced his long-held view that the Mother was intent on alienating the Children from him.

[152] Dr. Fidler noted that the Children had not reacted well to the Mother’s delegation to them of the decision-making power over when they would visit with their Father. This provided too much power to the Children, too young, and Dr. Fidler observed that this rendered the Children rude and omnipotent. They not only failed to respond appropriately to their Father, but they were similarly rude and dismissive to both Dr. Fidler and their Mother. These observations ran entirely counter to the Mother’s statement that the Children were doing “just fine”.

[153] Dr. Fidler testified that she was struck by the disproportionate reaction by the Children to the issues that they identified in their Father’s conduct toward them. The Children’s complaints were that he was insensitive to their needs, did not prioritize them and would never change in his approach toward them. For this they had decided to exclude him from their lives. I agree that the Children’s reaction to their Father was disproportionate to their complaints of him.

Dr. Fidler’s Conclusions

[154] Dr. Fidler stated that the issue that she identified with this family was not a “children’s problem” but a “parents’ problem”. The parents’ parenting had destroyed the Children’s relationship with their Father.

[155] On this finding, Dr. Fidler concluded that there would be no benefit in individual child therapy for the Children. Indeed, in her view, this would almost certainly only engrain their current thoughts further, as a form of self-justification. The Mother had organized an appointment for the Children to see a therapist and, on Dr. Fidler’s recommendation, she cancelled it. Based on the strained relationship between the Father and the Children, Dr. Fidler also concluded that Multi-Faceted Therapy on an outpatient basis was not suitable for the family.

[156] Dr. Fidler voiced her concern that the Children’s relationship with the Father had been allowed to erode for years, unchecked and uncorrected, without even the semblance of a parenting plan, which she termed “unconscionable”. Dr. Fidler testified that, in her experience, there are many circumstances in family breakups where the Children are resistant to contact with a parent, but each family must recognize that it is in the child’s best interest to repair the relationship. Dr. Fidler reported that the Mother exhibited the same strange duality as at trial, where she voiced agreement that it was in the Children’s best interest to repair their relationship with the Father but was not prepared to exert her parental authority to achieve this.

[157] Dr. Fidler recommended therapy, not for the Children but for the parents. The parents’ communications on parenting had been conducted entirely through legal counsel, which was simply not sustainable. Dr. Fidler concluded that in such circumstances, “conventional practice and wisdom emphasizes the need for a disengaged, parallel model of co-parenting.” Disengaged parallel co-parenting is an arrangement whereby the parents each parent the Children while having limited contact (disengaged) with each other. To effectively co-parent the Children, Dr. Fidler made the following therapy recommendations in the Fidler CIC Report:

a) Therapy for the parents, jointly and individually, but not family therapy involving the Children. This is designed to improve each parent’s parenting skills, their co-parenting communication and enhance their appreciation of the following:

(i) The seriousness of the current situation to the Children’s well-being and the urgency of the need for both parents to understand their responsibility for the circumstances that place the Children at risk of emotional harm;

(ii) The negative impact of their conflict on the Children;

(iii) The dynamics of anxiety as it may impact their own and the Children’s functioning;

(iv) Appropriate problem-solving and conflict resolution skills for both their individual parenting and co-parenting.

b) A detailed parenting arrangement that allows the Children time to rekindle and regenerate their relationship with the Father;

c) Multi-layered, detailed terms consistent with a disengaged co-parenting model that set out detailed, unambiguous protocols for parent conduct, parent rules of engagement, co-parenting communication and information sharing;

d) An open-ended invitation to the Children to participate in the parents’ counselling.

[158] Dr. Fidler’s conclusions were provided to the parents at a feedback meeting on March 29, 2018, and then explained fully in the Fidler CIC Report of July 11, 2018. Dr. Fidler provided the parties with resources designed to assist them in approaching disengaged co-parenting, including a set of proposed terms titled Partial Co-Parenting Agreement Recommendations (the “Sample Co-Parenting Agreement”) and a Parenting Plan Checklist for High Conflict Co-Parenting and a Memorandum outlining the advantages of Brief, Informative, Friendly and Firm (“B.I.F.F.”) communication, all of which were entered as trial exhibits.

[159] The parties did not implement any of Dr. Fidler’s conclusions. They agreed to participate in sixteen sessions of parents’ counselling, but failed to proceed by reason of a disagreement on the sharing of the costs: the Father proposing a 60:40 split, with him bearing 60%, and the Mother insisting on an 80:20 allocation. No parenting arrangement was implemented. The parties’ failure to implement these steps validated Dr. Fidler’s conclusion that they needed parental counselling.

[160] Instead of taking Dr. Fidler’s recommendations, the parties perpetuated their conflict in parenting, focusing on other options identified by the Fidler CIC Report.

The Parties’ Pursuit of Other Options

[161] Dr. Fidler stated that options that could be considered by the parents, counsel and the Court included, but were not limited to the following:

a) The Mother may seek an Order denying the Children parenting time with the Father;

b) The Father may choose to decline to seek parenting contact with the Children, for now, deferring any resumption of his relationship with the Children;

c) Either parent could seek the Court’s assistance to establish a reasonable and normalized parenting arrangement that is in the Children’s best interests;

d) The Father may seek interim or permanent sole legal custody of the Children, combined with a period in which they would have no contact with the Mother, with multi-day Blended Sequential Intervention, followed by re-integration of the Children with both parents.

[162] Dr. Fidler did not recommend these options. Each parent pursued at trial the option most extreme in his or her own favour: the Mother sought an Order that the Children’s access to the Father be left to their discretion, effectively representing a denial of parenting involvement by the Father; while the Father sought a reversal of custody and reunification therapy.

I. Status Leading to Trial

Erosion of Children’s Time with Father

[163] In all of 2018, there were no Saturday access visits by the Children with the Father. Rather, the Father saw the Children only every Tuesday, for roughly two hours, for their weekly piano lessons. Even this ended on June 26, 2018.

[164] In mid-June 2018, the Father made arrangements to pick up from the Children’s home the piano that the Children had played since they began their lessons, many years earlier. This piano was passed through the Father’s family and, according to the Mother, was gifted to Child 1 when she was born. The Father stated that he would purchase and arrange for the delivery of an electronic keyboard to replace the piano.

[165] The week following the Father’s retrieval of the piano, on June 26, 2018, the Children announced to their piano teacher that they were quitting piano lessons. This had not been discussed or cleared with either parent. Neither parent has taken any step to resume piano lessons.

[166] With the piano lessons now cancelled, and no Saturday visits planned, the Children had no organized or scheduled time with their Father after June 26, 2018. They saw him just twice between then and the time of trial: on Father’s Day, June 17, 2018, and on Child 2’s birthday in November 2018.

[167] The Father’s Day visit did not go well. Child 1 told the Father, for the first time, that she hated him, and referred to him only by his first name. She asked him repeatedly if she can go home. The Father returned the Children to their Mother one-half hour early, reducing a scheduled 2-hour visit to 1.5 hours. The November birthday visit was more civil and without confrontation.

[168] These two visits, totaling some three hours, account for the Children’s total time with the Father from June 2018 to the trial in this case in December 2018. The Mother states that she proposed access visits to the Father, who considered it advisable to await the implementation of a comprehensive parenting plan before attempting further contact with the Children.

Improved Parenting Communication

[169] On August 29, 2018, the parties consented to an Order that “the parties shall immediately enroll and start communicating about the children through Our Family Wizard”. This is an electronic communication program that facilitates communication between parents in conflict. The modest cost was shared. They agreed as well to use the B.I.F.F. communication principles recommended by Dr. Fidler.

[170] Print-outs of the communications on the Our Family Wizard program in the period from August 29, 2018 to trial were introduced into evidence. They showed a pattern of productive communications between the parties, conducted in a civil and cordial manner, concerning issues affecting the Children. The Mother provides the Father with updates concerning the Children’s activities.

[171] The Father has attempted direct dialogue with the Children on Our Family Wizard. Notwithstanding the Mother’s encouragement that they communicate with him, and her direction that they regularly check for messages from him, the Children have not responded to any of his messages.

J. Summary: Identification of the Children’s Needs and Circumstances

[172] I found earlier that the Children had healthy relationships with both parents prior to separation, and that during that time the Father parented the Children equally with the Mother. He had a role in their lives. I found as well that this conclusion was validated by the Children’s continued relationship with the Father for nine months after separation. It would definitely have been in the Children’s best interests for this relationship to continue to thrive, but it did not.

[173] In the over four years since September 2014, the Children have not had a single overnight visit with their Father. For the most part, in the period from September 2014 to May 2017, they saw their Father every Tuesday night for two hours and every weekend for between 4-8 hours. From May 20, 2017 to June 26, 2018, the Children saw the Father only for two hours on Tuesday for piano lessons. After the termination of the piano lessons on June 26, 2018, the Children have seen their Father only twice, for a total of three hours.

[174] The parents collectively failed to provide the Children with the counselling that they required on a timely basis. Despite the repeated urging of all professionals, and their own commitment to providing counselling for the Children when it was most needed, the parents’ incessant squabbling and lack of trust resulted in their failure to do so. This joint parenting failure contributed to the Children’s loss of their Father. Additionally, the Mother failed to protect the best interests of the Children in the following ways:

(a) By delegating to the Children the decision-making regarding when to see their Father;

(b) By failing to keep the Father informed and involved in the Children’s health issues, including Child 1’s serious medical issue, thereby marginalizing him and fostering a circumstance in which the Children could perceive him as a secondary parent;

(c) By allowing her perception of the Father’s new relationship, and feelings about its timing, to affect, or perhaps to validate the Children’s feelings. The Children’s expression to Ms. Lang, when aged 9 and 12, that their Father had moved too fast in his new relationship was a child’s articulation of an adult’s sentiment;

(d) By abdicating to the Children her responsibility as a parent to promote an environment in which they had a chance to develop their relationship with their Father, which was clearly in their best interests. It is noteworthy that the Mother was seemingly capable of causing the Children to attend to all the other obligations expected of children their age except access visits with their Father.

[175] Additionally, the Father failed to protect the best interest of the Children in the following ways:

(a) By the speed by which he commenced his new relationship, at a time of transition for the Children, without appreciation of the potential impact on the feelings and sensitivities of the Children;

(b) By his insistence that his new partner, then Wife, form part of his access time with the Children, without consideration that the introduction of a new person during the Children’s time of transition could contribute to their anxiety. This was compounded later when the Father insisted on the involvement of the Wife in strained visits after the Children had become distant;

(c) By failing to detect unease on the part of the Children, as exemplified by reading to Child 1 a letter of apology in the awkward circumstances of a piano lesson;

(d) By failing to be sensitive to the Children’s feelings and needs, as seen by telling them of his decision to remarry without consulting with the Mother, by unilaterally reducing child support in September 2014, by removing their bedroom door and by removing the piano that they had long-used as part of their piano training.

[176] Having heard and considered all the evidence, however, I am satisfied that the parents have moved forward, have learned from their experiences and are both committed to the Children re-establishing a solid relationship with both parents. The Mother apologized to the Father for her conduct prior to separation and for her failure to keep him informed on Child 1’s serious medical issue. She explained that she is committed to doing whatever is required of her to cause the Children to improve their relationship with the Father. The Father recognized the folly of removing the Children’s bedroom door, and of other parenting decisions, and equally stated that he is committed to doing better.

[177] I will proceed on the basis that the parties’ approach to parenting has improved, in terms of communication, attitude and civility, and will continue to improve.

[178] Both parents have testified that the Children’s lost relationship with their Father is not in their best interests. It has the potential for long-term impact to the Children’s emotional well-being. I accept the evidence of the parties, Ms. Lang and Dr. Fidler, that it is best for the Children if the relationship could be restored.

III. APPLICATION OF THE LAW

[179] The law is well-established that custody is to be decided only on what is in the best interests of the children, as stated by Gillese J.A. in D.D. v. H.D., 2015 ONCA 409, 62 R.F.L. (7th) 261 at para. 87:

First, the courts are to consider only the children’s best interests when making custody decisions. A court cannot award custody to one parent to punish the other for non-compliance with court orders. [Emphasis in original]

[180] The Court is required to determine what is in the best interests of the child when the parents are not able to do so. Court intervention on this issue is usually not required when parents agree on the care of their children. As Abella J. stated in MacGyver at para. 28, “the only time courts scrutinize whether parental conduct is conducive to a child’s best interests is when the parents are involved in the kind of fractious situation that is probably, in the inevitability of its stress and pain and ambiguity, less conducive to the child’s or anyone’s best interests”.

[181] The assessment is child-centric, in that the analysis of the child’s best interest must be conducted from the standpoint of the child, not the parent. “It is a mistake to look down at the child as a prize to be distributed, rather than from the child up to the parent as an adult to be accountable”: MacGyver at para. 38.

[182] The principle that the children should have as much contact with both parents as is consistent with the children’s best interests is legislatively codified in the Divorce Act, R.S.C. 1985, c. 3, sections 16(8) and (10). Even though the maximum contact principle is not expressly articulated in the CLRA, which is applicable to this case, it is nonetheless a fundamental component of a best interests analysis.

[183] Justice Abella stated, in MacGyver at para. 27, that the best interests analysis requires “an informed opinion made at a moment in the life of a child about what seems likely to prove to be in that child’s best interests.” Justice McLachlin expanded on and clarified these comments in Gordon v. Goetz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 20, making clear that the paramount issue is determining what is best for the welfare of the child:

The best interests of the child test has been characterized as “indeterminate” and “more useful as legal aspiration than as legal analysis”: per Abella J.A. in MacGyver v. Richards [citation omitted]. Nevertheless, it stands as an eloquent expression of Parliament’s view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child’s best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child’s best interests to expediency and certainty.

A. Analytical Principles Underlying the Best Interests Analysis

[184] Section 24 of the CLRA is the legislative codification of the principle that the merits of an application for custody or access to a child shall be determined on the basis of the best interests of the child. To assess the best interests of the child, the Court is required to consider all the child’s needs and circumstances, including those listed in subsection 24(2) of the CLRA:

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

[185] Section 24(3) of the CLRA requires consideration of a parent’s past conduct only if it is relevant to the person’s ability to act as a parent. Section 24(4) of the CLRA mandates consideration of whether the parent has, at any time, committed violence or abuse against a member of the person’s household, including his or her spouse in addition to any child.

[186] All factors set out in section 24 must be considered and balanced in analysing the parenting and custody arrangement that is in the best interests of the Children.

B. Application of the Analytical Principles

[187] I will apply the analytical principles that have been identified to assess whether the parenting and custody arrangements proposed by each of the parties are in the best interests of the Children.

(i) Love and Affection (CLRA, sec. 24(2)(a))

[188] Neither parent questions that the other loves the Children and seeks to have a strong relationship with them.

[189] The Mother has always been the Children’s primary caregiver and source of guidance and support, both pre-separation and post-separation. Only the Mother has had a loving relationship with the Children for the past four years. During this time, the Father has not had even a relationship that allows for a meaningful understanding of the Children and their needs.

[190] The Father has, throughout, shown concern for the Children’s well-being and a steadfast, persistent willingness to go to great lengths to assist in their emotional and physical care. In this trial he has shown that he refuses to abandon them and craves a role in their lives.

(ii) Child’s Views and Preferences (CLRA, sec. 24(2)(b))

[191] The Children have shown that they do not currently want to spend time with their Father. They have so stated to Ms. Lang and to Dr. Fidler and, most importantly, have made this clear, through words and conduct, to the Father.

[192] The Children’s views and preferences are an important factor to be considered in a best interests analysis. In Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (O.N. C.A.) at para. 13, the Court of Appeal emphasized that: “While the child’s best interests are not necessarily synonymous with the child’s wishes, the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes.” See also Fraser v. Logan, 2013 ONCA 93; O’Connell v. McIndoe (1998), 1998 CanLII 5835 (BC CA), 42 R.F.L. (4th) 77 (B.C. C.A.). In assessing the significance of the Children’s preferences, I consider the factors identified by the Ontario Court of Appeal in Decaen v. Decaen, 2013 ONCA 218 at para. 42:

In assessing the significance of a child’s wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view…

[193] I have determined that the Children have unambiguous views concerning the parent with whom they wish to reside, and have held these views for a considerable period of time, particularly given their ages. I am mindful that where a parent has undermined the relationship of a child with a parent, the views of the child cannot be accepted as independently provided: A.G.L. v. K.B.D. (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (S.C.). Although, as noted above, the Mother’s feelings may have affected the Children’s views, I do not have a basis on which to conclude that these views have been dictated, or even coached by the Mother. Both Children have been described by all as mature, clever and intelligent. In the case of Child 1, the preference is strongly asserted by self-help steps taken to impede the scheduled access visits with her Father.

[194] As such, I place significant weight on the Children’s preference to maintain their primary residence with their Mother and also to be principally parented by their Mother. I place less weight on the expression that they do not want any meaningful relationship with their Father, at least presently. I do so because this preference is, on all the evidence, uninformed and disproportionate to the reasoning expressed for this conclusion.

[195] The Children’s primary criticism of the Father, as distilled from the evidence of all witnesses, is that he moved too quickly in re-partnering and thereby withdrawing from the family relationship, that he did so in a manner that was insensitive to the Children’s needs, and that he has exhibited poor parenting judgment. The Children’s reaction of feeling hurt and confused is understandable, but life-long estrangement from their Father is a disproportionate consequence. While I recognize the Children’s right to voice this preference, I do not accept that, in this case, they have a right to choose this result.

(iii) Stable Home Environment (CLRA, sec. 24(2)(c),(f))

[196] The court has recognized that, as a general rule, it should be reluctant to disrupt an environment that has, like here, provided stability in care for young children for a long period of their lives: Poole v. Poole, 1999 BCCA 203, 45 R.F.L. (4th) 56 at para. 23. The Children are excelling at school. They have both been identified as academically gifted. There are no concerns regarding their peer relationships or social integration. They are physically healthy and currently have no medical concerns.

[197] That the Children are thriving at school and engaged in extra-curricular and social activities are definitely factors to be considered in the best interests analysis: A.M. v. J.M., 2016 ONCA 644 at para. 16.

[198] I do not accept the Father’s evidence that the Children’s home life with the Mother is unstable. I prefer the Mother’s evidence that the Children are engaged in a structured home and school environment, living in the same house that they have known as a home since 2008 and attending the same activities in the same neighbourhood as they have for their entire lives. The Children’s medical needs are readily addressed, as is their academic performance. The only issue that needs to be improved, their lack of relationship with their Father, must be addressed without disrupting the elements of the Children’s lives that are in order.

(iv) The Ability and Willingness of Each Parent (CLRA, sec. 24(2)(d)

[199] Both parents did their best to cope as parents in trying times. Both had their own issues with anxiety and with stress. The issue of whether the Father was a good husband or the Mother a good wife, which consumed an inordinate amount of trial time, is not relevant to whether they are able and willing to parent.

[200] Neither Ms. Lang nor Dr. Fidler identified any impediment to either party parenting the Children. Having considered all the evidence, I reach the same conclusion.

[201] My assessment of the Father as a parent was consistent with the view expressed by Ms. Lang and by Dr. Fidler. He is not a difficult person to deal with. He presented throughout trial in a forthright and honest manner, and he undoubtedly cares for the Children. His testimony demonstrated that he has learned from past parenting experiences and is eager to be an able parent to the Children. The Mother shares the Father’s love of the Children and has always been their principal caregiver, nurturer and mainstay. I am satisfied, from her testimony and from her conduct, that she too has learned from the problems of parenting in conflict and is committed to doing what is best for the Children.

[202] I find that both parents are able and willing to effectively contribute to the parenting of the Children.

(v) The Plan Proposed by Each Parent (CLRA, sec. 24(2)(e))

[203] Section 24(2)(e) of the CLRA calls for consideration of the plan proposed by each person applying for custody of or access to the Children for their care.

(a) The Father’s Plan: Reversal of Custody Based on Alienation

[204] The Father submits that it is in the Children’s best interests to reverse custody, providing him with sole custody, and order intensive reunification therapy based on his theory that the breakdown in the Children’s relationship with him is based on intentional parental alienation perpetrated by the Mother.

1. Case Law Relied on by the Applicant

[205] The Father’s claim for a finding of parental alienation relies on the authority of three cases: B. (S.G.) v. L. (S.J.), 2010 ONSC 3717, 102 O.R. (3d) 197; M.M.B. (V.) v. C.M.V., 2017 ONSC 3991; and L. (A.G.) v. D. (K.B.) (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (S.C.). Each of the cases found that a favoured parent had alienated the children against the excluded parent, and each granted the remedies sought by the Applicant Father in this case: a reversal of custody, prohibition of parenting involvement by the alienating parent and gradual reintegration by use of reunification therapy. Each case turns on its facts.

[206] In B. (S.G.) v. L. (S.J.), Mesbur J. found that the conduct of the father had severely and deliberately undermined his son’s relationship with his mother. Mesbur J. concluded that “irrational parental alienation” was present, which occurs where a child’s reaction in completely rejecting a parent is totally out of proportion to that parent’s conduct and is caused or supported by the favoured parent. Since therapy and counselling do not work in circumstances where the alienating parent continues to have contact with the child, there must be an interruption in that contact to allow the child to be free from the emotional abuse by the favoured parent, undergo counselling designed to stabilize and restore the relationship with the rejected parent, and then reintegrate back with the favoured parent. Mesbur J. found that the extreme evidence of parental alienation in her case established the basis for ordering the reversal of custody and reunification program sought by the rejected mother.

[207] In M.M.B. (V.) v. C.M.V., three children, aged 10, 12 and 14 at the time of trial, were primarily resident with their father in circumstances of high conflict between their separated parents. The 185-page decision detailed the involvement of the Children’s Aid Society and 30 police occurrence involvements, not to mention a parenting coordinator, a custody access assessment and more than 15 court orders. The evidence established that the respondent father had poisoned the minds of the children against their mother, whom they treated horribly. The Court found, at para. 333, that the respondent would “stoop to any level to try to hurt the applicant and to destroy any relationship that the applicant may have with” her daughter. The court found that this behaviour was far from being in the best interests of the children involved.

[208] The court found that alienation had occurred. The alienating parent was causing emotional harm to the child, to the point of abuse, with the result and indeed objective that the child had no relationship with the alienated parent. This alienation occurs most frequently when one parent’s anger at a former partner is so extreme that the child is directly involved in the dispute and, often, used as a pawn in the ongoing conflict. The court described this at paragraph 1196: “This is tantamount of being so desirous of taking out the applicant that [the alienating parent] was not the least bit concerned that by doing so he was thrusting the bayonet through his child to get to the applicant”.

[209] Parental alienation was also found in L. (A.G.) v. D. (K.B.), where McWatt J. concluded that the mother’s unrelenting attempts to undermine the children’s relationship with their father constituted emotional abuse. The court found that the alienating parent had moved the children’s residence further away from the father, was unconvinced that they would benefit from a relationship with their father, undermined his attempts to contact them or to have time with them, purposefully involved the children in the dispute and the resultant litigation and incessantly spoke disparagingly of the alienated parent. As in the other cases relied on by the Father, there was expert evidence that concluded that irrational or unjustified parental alienation had occurred. As a result, McWatt J. ordered a reversal of custody and a program of reunification therapy.

2. Application of Principles

[210] The Father first alleged that the Mother was intentionally alienating the Children from him in July 2016, stating his belief that the Mother’s conduct was a deliberate attempt to “hamper, block and delay counselling” as part of a “clear campaign of parental alienation”. He first testified to his belief that the Mother was “poisoning the Children against” him in an affidavit sworn on August 5, 2016. The significance of this is that the Father held the view that the Mother was engaged in parental alienation years before all the events from August 2016 to trial. He did so, at least in part, based on his history of dealings with the Mother.

[211] The Father led evidence of emotional and physical abuse of him by the Mother in the period prior to separation. Apart from providing context and background, this evidence was presented to establish that the Mother behaved badly and denigrated the Father prior to separation and must logically have continued this conduct after separation. He sought to establish that as the Mother harmed and disparaged the Father prior to separation, she must have set out to harm and disparage him after separation. Since she was, in the Father’s view, an unfit spouse she must then be an unfit Mother.

[212] While I do not in any manner condone the Mother’s unacceptable conduct in her dealings with the Father prior to separation, alienation cannot be established on supposition or logical extension of past bad conduct between parents. It must be established on evidence of harm to the best interests of the Children. The Father did not establish that the Mother denigrated or disparaged him in front of the Children after separation or otherwise purposefully brought them into the parental conflict post-separation. As such, the Father’s claim that the Mother has intentionally alienated the Children from him rests principally on analysis of the following conduct:

a) Purposeful delay in obtaining counselling for the Children;

b) Improper restriction of his access to the Children;

c) Failing to notify the Father of the Children’s medical and health needs.

Alleged Delay in Counselling as a Tool of Alienation

[213] I conclude that the Mother promoted counselling for the Children shortly after this issue was first raised by the Father. This was noted in Kiteley J.’s endorsement of April 24, 2015, which followed the Father’s first suggestion of counselling in November 2014. In fact, there is no evidence that the Mother rejected proposed counselling for the Children until after the Mother concluded that eight counselling sessions with Ms. Kavoukian from July to December 2016 caused the Children to have counselling fatigue.

[214] The Mother is not alone responsible for the interminable selection process that the parties underwent to identify a counsellor. The Mother gave the Father the right to unilaterally select a counsellor from a list provided by her on January 6, 2016. On April 13, 2016, she committed to choosing a therapist from any list provided by the Father, which he did not prepare or send. She consented to the June 2016 Order that expressly gave the Father the right to select the therapist. The Mother cannot be faulted for the time lost while the Father attempted unsuccessfully to arrange counselling through the EAP and for time lost while the Father delayed or failed in providing a list of his proposed therapists. I have noted, as well, that had the Father consented to the Mother’s proposal of May 10, 2016 that the Children’s pediatrician select their therapist, Dr. Fidler would have seen the Children in 2016 instead of almost two years later in 2018.

[215] I find that the Father has not established that the Mother intentionally delayed counselling. I also conclude that her approach to counselling for the Children was not intended to alienate the Children from the Father.

Alleged Restriction in Access as a Tool of Alienation

[216] The Mother did not restrict access by the Children with the Father in the period from separation, January 1, 2014, through to September 2014. The Father did not even request overnight access until April 2014, but when he did, the Mother not only scheduled the access requested but supported the Children’s visits with their Father.

[217] This changed in September 2014, and went continuously downhill thereafter. I do not agree with the Father’s contention that the Children’s diminished access with him was part of the Mother’s plan to alienate the Children from him. I conclude that it was a by-product of an overwhelmed, over-protective parent who misunderstood what was in the Children’s best interest.

[218] I have not seen any evidence that the Mother disparaged the Father in front of the Children after the time of separation. The Father has no evidence to contradict the Mother’s testimony, which I accept on this point, that she throughout urged the Children to spend time with their Father and develop their relationship with him. The Mother’s restriction of access after the Father’s admitted parenting error in removing the bedroom door on June 25, 2016 was a parenting reaction to the Children’s distress. The Father’s failure to agree to basic terms for access to resume prolonged this troubling period unnecessarily.

[219] On May 20, 2017, when she was unable to coax Child 1 out of the bathroom and out the door to her visit with the Father, the Mother shirked her parental responsibility to make Child 1 do something that she found difficult. However, to focus overly on this development would be to ignore the multitude of times in which the Mother coaxed the Children to access visits and counselling sessions that they did not want to go to.

[220] I accept the Father’s submission, supported by Ms. Lang and Dr. Fidler, that the Mother made an error in granting the Children too much say in access with their Father, at too young an age. Children ought not to have the weight of a life-altering decision. As stated by Dr. Fidler in the Best Practice Guide at pp. 67-68: “Most want to be kept informed, consulted and have their views considered, but generally they do not want the responsibility for making decisions”. I do not accept the Father’s submission, however, that the Mother restricted the Children’s access to him as a tool of alienation.

Alleged Withholding of Information on Children’s Health Needs as a Tool of Alienation

[221] In November 2015, the Mother withheld from the Father information pertaining to a medical issue with potentially serious consequences to Child 1. Fortunately, the medical issue cleared, the Father became involved, and the Mother consented to an Order that he be notified of all information pertaining to the Children’s medical and educational issues.

[222] Additionally, on two occasions the Mother arranged for child-focused counselling for the Children, using counsellors selected by her, without informing the Father. These counselling sessions were in addition to the family therapy being arranged by the parents collaboratively.

[223] Withholding information concerning the Children’s medical issues was wrong. Section 20(5) of the CLRA codifies the parent’s right to “make inquiries and to be given information as to the health, education and welfare of the child”. The Mother’s conduct caused the Father to be marginalized as a presumptively equal parent. The Mother’s justification that she was only acceding to the request of her Child in withholding the information is yet another example of the Mother defaulting in her duty as a parent to fully explain to Child 1 the importance of the Father’s involvement.

[224] Although the Mother erred, I see no evidence that the Mother’s conduct was intended to alienate the Children from the Father. I accept the Mother’s evidence that the improper withholding of information was in error and not through design.

3. Conclusion: The Father Has Not Established Alienation

[225] Unlike the cases relied upon, the Applicant Father did not tender any expert evidence that parental alienation has occurred. Dr. Fidler was presented as an expert, but specifically disclaimed any retainer to provide any expert opinion or recommendation concerning the best interest analysis, or custody or access, including any expert opinion on the presence in this case of parental alienation. Rather, the Applicant relied on extracts of Dr. Fidler’s book, Best Practice Guide, particularly at pages 40-43, in submitting that the characteristics of alienation identified by Dr. Fidler and her co-authors are present in this case. However, both Ms. Lang and Dr. Fidler were examined on these characteristics, and an analysis of them shows that most were not present:

a) While the Children have a close relationship with their Mother, they do not idolize her, as is seen in cases of alienation;

b) There is no vicious vilification or campaign of hatred or malice against the Father. The Children simply do not want to be with him. The experts reported that the Children were not angry with their Father but were disappointed that he moved past them too quickly;

c) There is no evidence that the Children talk openly to others about the Father’s shortcomings, and they do not communicate to others about their disappointment in their Father;

d) Ms. Lang did not observe the Children mimicking their Mother’s complaints of the Father. There was no evidence of any such behavior by the Children;

e) Neither Ms. Lang nor Dr. Fidler found the Children’s language or expression of their feelings to be coached, artificial, rehearsed or unchildlike in nature;

f) The Children did not express any worry for the preferred parent, or desire to care for that parent, as is seen in cases of alienation;

g) There was no evidence that the Children were involved in the matrimonial litigation by either party. The Children did not mention any of the economic issues or financial aspects of the separation with anyone.

[226] On the evidence presented at trial, the Father’s case on parental alienation rested on suspicion as opposed to proof. The Father submitted that consequences of alienation are present: the rejection of the Father; the disproportionately small justification for the estrangement; the lack of hope for eventual reconciliation. However, the Father did not have evidence of the cause of the alienation that he perceives. The Father did not establish evidence for his belief that the Mother “poisoned” the Children’s minds, or even that she disparaged him with them.

4. The Plan Proposed by the Father is Not in the Children’s Best Interests

[227] Parental alienation is not established by analysing pointed, positional lawyer’s letters or by bald assertions in affidavits filed on motion and untested through cross-examination. Alienation is not established by logical extension of pre-separation conduct to a post-separation environment. Alienation is established by evidence of a poisoned environment created or supported by the alienating parent causing emotional harm to the child, with the intended or inevitable result that the child has no meaningful relationship with the rejected parent.

[228] I do not find, on the evidence adduced in this trial, that the Mother has intentionally alienated the Children from the Father. As such, the Father has not established that reversal of custody is in the Children’s best interest as he has not proven that their current home environment is causing them any harm. He has also not established that their interests are better served by residing primarily with him, particularly when they have not done so for over four years. The Father’s claim for reversal of custody is denied, on the basis that it would not be in the Children’s best interests.

[229] Last, I reject the Father’s proposal for Blended Sequential Intervention Therapy (“BSI Therapy”) for the Children. The Father did not lead any expert evidence that BSI Therapy is required. Indeed, Dr. Fidler testified that there is no certainty that the Children would even qualify for BSI Therapy as this would not be known until the requisite clinical intake assessment is conducted. There is no evidence that these parents would be able to pay the cost of the BSI Therapy, estimated by Dr. Fidler to be in excess of $30,000. Finally, having found that it is not in the Children’s best interests to reverse custody or deny access by them with their Mother, even temporarily, there is no therapeutic framework in which to conduct the BSI Therapy.

[230] The Father’s claim for reversal of custody, temporary denial of access by the Children with their Mother and BSI Therapy, is dismissed.

(b) The Mother’s Plan: Access at the Discretion of the Children

[231] The Mother seeks continuation of the status quo: to leave the rehabilitation of the Children’s relationship with their Father to the Children, in the hope that it will repair itself over time. I will now analyse this parenting plan.

1. Case Law Relied on by the Respondent

[232] The Respondent Mother agrees that the lens through which the issues of custody and access must be approached is not from the perspective of the parent claiming these entitlements, but rather from the standpoint of the child, focusing particularly on the child’s needs in order to determine what arrangements might best meet those needs: Cox v. Stephen (2002), 2002 CanLII 78080 (ON SC), 30 R.F.L. (5th) 54 (O.N. S.C.) at paras. 43-47, aff’d (2003), 2003 CanLII 18571 (ON CA), 47 R.F.L. (5th) 1 (O.N. C.A.). The Mother relies on those cases that have concluded that the child’s relationship with the rejected parent is so critically flawed, and the age of the child so advanced, that it is unrealistic to consider that any order can be rendered to restore the relationship.

[233] The Mother seeks a determination such as that made in Fraser v. Logan, 2012 ONSC 4087. In that case, Johnston J. granted a change of an existing Order to relieve two children, aged 16 and 13, from the obligation to reside in alternate weeks with their father. The Children, on evidence provided through the Children’s Lawyer and through their conduct, clearly expressed that they did not want to spend time with their father. Johnston J. stated, at para. 47, that the Court must “take into account the reality of the situation ‘on the ground’”, with the result that it was not in the best interests of the children to force ongoing residency with the father. The Court of Appeal upheld the trial judge’s decision that the “best interests of the children are best served by the access order … that respects their views”: 2013 ONCA 93 at para. 3.

[234] A similar result was reached in J.L.M. v. I.H.M., 2004 CanLII 47774 (O.N. S.C.), where Gordon J. declined to make an Order that would have the effect of forcing three children, ages 16, 14 and 11, to have access visits with their mother against their strongly stated preferences, finding that the visits would serve no practical use. The court relied on similar findings by Spence J. in Goodman v. Browne, [2003] O.J. No. 2495 (C.J.) and by Poupore J. in St. Cyr v. St. Cyr, 1996 CanLII 11966 (ON SC), [1996] O.J. No. 171 (C.J.).

[235] In DeMelo v. DeMelo, 2014 ONSC 6225, Arrell J. granted summary judgment awarding sole custody to the mother with access to the father at the discretion and initiation of the children. The OCL clinician in that case provided evidence that the children, aged 15 and 13, were fearful of their father, but otherwise were doing well with their mother, and wanted an end to involvement in their parents’ conflict and related high-conflict litigation. The court found that the mother had not alienated the children from the father, but rather had encouraged their relationship. The court found, at para. 26, that “forcing access against their wishes would be counter-productive, detrimental to their emotional well-being, and likely futile in any event”. This finding was upheld on appeal, 2015 ONCA 598, particularly at para. 14: “The evidence established that the children are of sufficient age and maturity so as to warrant judicial respect for their positions on these matters”.

[236] There are, of course, cases where courts have taken a different approach, and have denied the submission that they should simply let the children decide. By way of example, in B. (S.G.) v. L. (S.J.), at paras. 63-64, Mesbur J. rejected the submission that the best path to reunification was to do nothing, stating that the decision to take no step in curing a failed parental relationship usually does not work:

Of course, the last potential remedy, if one can call it that, is to do nothing at all, and let nature take its course, hoping that at some point in the future the relationship will simply re-establish itself. Dr. Korenblum testified that simply letting reunification happen over time usually does not work. All the other psychiatrists agreed.… First, doing nothing and simply hoping alienated parent and child will re-connect at some time in the future does not work. What this means is that leaving things as they are and letting [the child] decide cannot be in his interests. As all agree, it is in [the child’s] best interests to have a relationship with his [alienated parent].

[237] The Mother’s plan does not differentiate between Child 1, who will shortly be 16 years of age, and Child 2, who has recently turned 12. However, there are different considerations affecting the two Children by reason of their age. These will now be assessed.

2. The Child’s Right to Withdraw from Parental Control at 16

[238] In R.G. v. K.G., 2017 ONCA 108, 136 O.R. (3d) 689 at para. 43, Benotto J.A. noted, considering the appeal of a declaration that a seventeen year old child had withdrawn from parental control, that “it has always been a rule of common law that a parent’s right to custody will not be enforced against a child’s will once the child has reached the ‘age of discretion’”, citing R. v. Greenhill (1836), 4 A. & E. 624, 111 E.R. 922 (K.B.) and R. v. Howes (1860), 3 E. & E. 332 (Q.B.). In Ontario, the age at which the court would not force a child to return to a custodial parent, but rather would allow the child to choose where to live, is codified in section 65 of the CLRA as “sixteen or more” years old: “Nothing in this Part abrogates the right of a child of sixteen or more years of age to withdraw from parental control”.

[239] There is no question that the Court retains authority over Child 1 even after age 16: B. (S.G.) v. L. (S.J.) at para. 25. Section 18(2) of the CLRA states that its custody and access provisions apply to a child while the child is a minor, that is under the age of eighteen, so long as the child has not withdrawn from parental control.

[240] However, Child 1’s views and preferences must be given greater importance by reason of her age. In H. v. H. (1976), 1976 CanLII 724 (ON SC), 13 O.R. (2d) 371 (H.C.J.), Galligan J. emphasized that the wishes of the child become of increasing importance as a child approaches age 16: “It seems to me that in this case, when the children are aged 14 and 16, their wishes become a very important factor indeed.” A similar statement was made by Steinberg J. in Tapley v. Tapley, [1983] O.J. No. 920 (U.F.C.) at para. 44: “It would appear that where, as with Christopher, a child is approaching the age of 16 years, the court should abide by his wishes and preferences unless there are serious reasons for doing otherwise.”

[241] This is why it is rare for a Court to make a custody and access Order in relation to a child who is 16 years of age or older. While the voice of the child is important in all matters concerning minors, it is particularly important as the child approaches 16 years of age and beyond. Benotto J.A. emphasized this point succinctly in R.G. v. K.G. at para. 67:

This appeal demonstrates the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors. The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge’s discretion as she seeks to determine the child’s best interests. When, as here, the child is months away from her eighteenth birthday, a continuation of litigation involving her indicates more about the parent’s needs than the child’s.

3. Should Access with the Father be left to the Discretion of the Children?

[242] I accept the proposition in the line of cases relied on by the Mother that, in certain instances, there is no meaningful step that can be ordered that will assist the Children in establishing maximum contact with both parents. I also accept that this determination is highly fact-specific, and based on a finding that there is a fundamental flaw or insurmountable obstacle that prevents the child from having a relationship with the rejected parent.

[243] I see no such fundamental flaw or insurmountable obstacle in this case. The Children are not fearful of their Father. There have been no arguments between the Father and the Children, no threats, no hostility by him and no confrontations, as is seen in the cases relied on by the Mother. There has been no need for involvement of child protection agencies, community support or police services.

[244] The most important assessment must be on whether or not contact with the rejected parent, regardless of the reason for the strained relationship, is in the Children’s best interests. I find that in this case, it is.

[245] The evidence shows that the Children’s disengagement from their relationship with the Father resulted from disappointment, frustration with him as an absent Father and their conclusion that he was insensitive to their needs and desires. They perceived that he had poor parenting skills, did not understand them and would never change. These elements were identified by Ms. Lang and by Dr. Fidler, and came forward in the testimony of the parents.

[246] These elements certainly called for the Children to engage in counselling, as was recognized early and ineptly provided late. This caused the seeds of disconnection to grow, to the point that the Mother considers irreparable.

[247] However, the Children benefited from a relationship with their Father prior to the separation, and I find that it is in their best interests to have ample opportunity to have one now. The disconnection with the Father is entirely disproportionate to the conduct of the Father, as established at trial. I agree with Mesbur J. in B. (S.G.) v. L. (S.J.) that, in circumstances such as those established in this case, to do nothing and hope for the best is not a viable solution.

[248] I thereby reject the Mother’s plan that the Children’s access with their Father should be left to their discretion.

[249] In making this determination, I am mindful that the Mother will be put to the task of causing the Children to attend access visits in circumstances where they have shown a disinclination to attend. The Mother testified that she is a “rule follower” who has been successful in causing the Children to attend counselling sessions and prior access visits contrary to their expressed will. They do not miss school or extracurricular activities or counselling sessions, no matter how much they do not want to go. I adopt the statement by Quinn J. in Geremia v. Harb, 2007 CanLII 1893 (ON SC), [2007] O.J. No. 305 at para. 44:

Undoubtedly, there are many tasks that a child, when asked may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

[250] Last, in dismissing the Mother’s parenting plan in favour of implementing access visits by the Children with the Father, the detail of which I will address later, I have fully taken into consideration that Child 1 will shortly be 16 years of age. I place a large weight on her views, given her age and evidence of her maturity. However, I have decided to include Child 1 in the required access visits with the Father to provide an opportunity for her to re-establish a relationship with him, together with Child 2’s renewed access with the Father. The Children have always supported each other in their initiatives, and this is an opportunity for them to do so in restoring a relationship with their Father.

[251] My determination that it is in Child 1’s best interests to make every effort to restore her relationship with her Father is based on my finding that this relationship once existed, that it is best for Child 1 if this relationship could be restored, and that I see no reason why this cannot be done. To do so will obviously require time and commitment. The years that it took for this case to come to trial bring Child 1 close to the age where she can decide to withdraw from parental control, and it will take responsibility, maturity and an open-mind on her part to give a full opportunity for her Father to re-enter her life. The comprehensive parenting plan that I will implement is designed to provide her, together with Child 2, every opportunity to do so.

4. The Mother’s Claim for Sole Custody

[252] The last element of the Mother’s parenting plan that I must address is her claim for sole custody of the Children. This raises the question of whether an order for sole custody is in the best interests of the Children. Does it serve any purpose in the context of a case, such as this, in which a status quo in parenting decisions has been established and operative for over four years?

[253] The Mother relies on Kaplanis, at para. 11, wherein the Court of Appeal stated that joint custody is not possible where the conflict between the parents does not allow them to communicate effectively with one another. She relies as well on DeMelo as an example of a court awarding sole custody in the context of a high conflict dispute that endured years of litigation. The proposition relied on by the court in that case, at para. 19, that joint custody is not appropriate in high conflict cases is, of course, well-established. However, the facts are distinguishable from those in the present case. In DeMelo, the conflict between the parties had resulted in criminal charges against each party and the involvement of the Children’s Aid Society, elements that are simply absent in the present case.

[254] In Berman v. Berman, 2017 ONCA 905 at para. 5, the Court of Appeal stated that it is “for the trial judge to assess whether the parties’ ability to cooperate and communicate effectively in making parenting decisions warrants a finding that joint custody is in the best interests of the child”. In that case, neither party had requested parallel parenting.

[255] In my view, the parties, and importantly the Children, do not need a custody order. In M. v. F., 2015 ONCA 277, 58 R.F.L. (7th) 1, Benotto J.A. considered a parent’s claim for custody of a six-year old child in a high conflict parenting situation and determined that a custody order was not necessary. She commented, at paras. 38-40:

The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1)(a) of the CLRA is permissive, not mandatory: The court … by order may grant the custody of or access to the child to one or more persons (emphasis added).

For over 20 years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access”. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody”. It was also in keeping with the well-recognized view that the word “custody” connotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

[256] I agree with the analysis by Chiappetta J. in Knop v. Nezami, 2016 ONSC 3179 at para. 214, that it is the structuring of the parenting relationship that is significant when considering the best interests of the children and “not necessarily which parent wears the ‘C’ badge upon the assessment”.

[257] I dismiss the Mother’s claim for sole custody on my finding that such an order is not necessary and may, indeed, be contrary to the best interests of the Children.

[258] I will now discuss the reasons for my determination that the best interests of the Children are served by a disengaged parallel parenting, step-up access for the Father and status quo on primary residence and decision-making.

IV. DETERMINATION OF PARENTING IN CHILDREN’S BEST INTERESTS

[259] Having dismissed the terms of judgment sought by each of the parents for addressing the Children’s parenting and custody, I have analysed the parenting and custody arrangements that are in the Children’s best interests. In doing so, I have taken into consideration the alternative submissions made by the parties which, as noted earlier, share significant common elements. This reflects that both parties have had the benefit of input from Dr. Fidler, who suggested a disengaged co-parenting model, and to the resources provided by Dr. Fidler, which include the Sample Co-Parenting Agreement, the Parenting Plan Checklist for High Conflict Co-Parenting and the Memorandum outlining the benefits of B.I.F.F. communication.

[260] I have found that it is unacceptable for the Children to be deprived of a relationship with their Father. Having found earlier that each parent is committed to the Children establishing a meaningful relationship with both parents, but that the parents remain in conflict, I have determined that it is in the best interests of the Children to implement a comprehensive parenting plan that is based on disengaged parallel parenting.

[261] The comprehensive parenting plan will include status quo on primary care and decision making, and stepped-up access for the Children with their Father. I accept the expert evidence of Dr. Fidler, and the recommendations set out in the Fidler CIC Report, that parental counselling is required by the parties to enhance their parenting skills and their appreciation of the impact of their conduct on the Children, and that the only manner of viable co-parenting by them is disengaged parallel co-parenting. Multi-layered terms are required to ensure proper conduct and communication, consistent with the alternate submissions made by both parties.

[262] I will explain the basis for each of these components, my determination of the differences between the parties on the elements of a comprehensive parenting plan, and the orders that will be made to implement these terms.

A. Disengaged Parallel Parenting

[263] Disengaged parallel parenting allows the Children to have the benefit of the parenting of each parent, while minimizing the necessity for interaction or coordination between the parents. This will allow each parent to maximize their involvement with the Children while minimizing their involvement with each other. I have concluded that this is the parenting arrangement that provides the greatest possibility of the Children re-establishing their relationship with the Father.

[264] The parties shall co-parent the Children using a disengaged parallel parenting model of co-parenting, in accordance with the multi-layered terms that follow. This term of the Judgment, as set out in paragraph 3 of Part V of these Reasons, Disposition, is implemented from paragraph 1 of the Mother’s alternative comprehensive parenting plan (“A.C.P.P.”), filed as part of the closing submissions and paragraphs 1 and 2 of the Father’s A.C.P.P.

B. Primary Care to Mother with Status Quo on Decision Making

[265] The Mother’s claim for sole custody is denied. The status quo for both residence and decision-making, which have been in place for several years, will be continued. The Children shall reside in the primary care of the Mother. The Mother shall seek and consider the input of the Father prior to making decisions for the Children’s care and well-being. If the parties are unable to come to a consensus, the Mother shall have the final say. Each parent shall be responsible for making routine decisions while the Children are in his/her care, and shall keep the other party informed.

[266] The terms pertaining to primary care and decision-making are set out in paragraphs 4 and 5 of Part V of these Reasons, Disposition. I accept paragraphs 37, 38, 39, 40, 41, 42, 43 and 45 of the Mother’s A.C.P.P., and implement them in the terms set out in Part V of these Reasons, Disposition, at paragraphs 6, 7, 8, 9, 10, 11 12 and 13.

C. Parental Counselling

[267] Dr. Fidler recommended that the parties engage in parental counselling in March 2018, consistent with the finding made by Ms. Lang in her interim report of October 14, 2015. This is key to the parties’ ability to engage in parallel parenting and to focus on common issues in the best interests of the Children, particularly given their history of issues with communication. I agree that the parties must engage in the recommended counselling as changes and improvements in parental conduct are essential.

[268] The Father has throughout agreed to participate in parental counselling. The Mother agreed to participate in parental counselling when first proposed by Dr. Fidler. The parental counselling did not take place prior to trial because the parties could not agree on an allocation for its funding, terminating discussions when unable to bridge a gap between the Mother’s proposed split of 20:80 and the Father’s proposed split of 40:60 of a per session cost of $300. This represents a monetary discrepancy of $60 per session or a total of $960 for the maximum 16 sessions proposed. This cost is miniscule in comparison to the costs that that the parties have invested in this litigation, including this seven-day trial.

[269] The Mother now states that she opposes parental counselling, but gives no basis for the change in her position other than to state that $960 in family resources could be better directed to other purposes.

[270] I am mindful that in Kaplanis, at para. 14, the Court of Appeal held that a trial judge erred in making an order for parents to attend counselling where the parties had not co-operated in the selection of a counsellor, or even a process to do so, and had not provided any indication that they were willing to submit their issues to a counsellor for assistance.

[271] These elements are not present here. First, the parties consented to the February 2018 Order which not only caused them to retain Dr. Fidler but also required that the parties attend any sessions with Dr. Fidler upon her request, and to be bound by Dr. Fidler’s determination of the frequency and duration of any such sessions. Second, the parties agreed, just months ago, to the parental counselling recommended by Dr. Fidler. They concurred in the importance of these sessions in parenting in the best interests of the Children, but allowed a disagreement on the sharing of costs to preempt this important counselling. Third, the Mother testified that she felt safe with Dr. Fidler, and trusted her to assist the parents through counselling. As such, the complicating factors present in Kaplanis, namely uncertainty of process and demonstrated unwillingness to engage, are not present in this case.

[272] On the basis of the parties’ consent to the September 2018 Order, their past involvement with Dr. Fidler, their acknowledgement of the importance of parental counselling as a component of disengaged parallel parenting, and their prior commitment to engage in parental counselling, and on the basis of my inherent jurisdiction to make a counselling order that is in the best interests of the Children, and following the finding of Audet J. in Leelaratna v. Leelaratna, 2018 ONSC 5983, para. 45, that the court has jurisdiction to make a therapeutic order on the basis of sections 28(1)(b) and (c) of the CLRA, I order that the parents engage in a maximum of 16 parental counselling sessions with Dr. Fidler. The number of these sessions is to be determined by Dr. Fidler on her assessment of the parties’ needs. The costs of these sessions shall be shared equally by the parties.

[273] In making this order, I have considered whether the expense is practical and the allocation reasonable. If the parties can afford the significant cost involved in the seven day trial, which followed the legal fees the parties incurred for four years in communicating on parenting issues only through lawyers, and if they can afford the cost of commissioning a report from Dr. Fidler for trial purposes, then it is reasonable for me to conclude that they can afford to share in the cost of 16 therapy sessions designed to enhance their ability to parent, using the expert that they jointly selected and trust.

[274] I order that the parties shall commence co-parenting therapy with Dr. Fidler no later than February 15, 2019, unless Dr. Fidler is not available, in which case they shall commence this therapy at Dr. Fidler’s earliest available date. The term of my Judgment that will implement my finding that the parties shall engage in parental counselling, which applies paragraph 31 of the Father’s A.C.P.P., in part, is set out in Part V of these Reasons, Disposition, at paragraph 14.

D. Step-Up Access for Children with Father

[275] Dr. Fidler determined in March 2018 that the Children’s best interests necessitated resuming access visits with the Father at the first opportunity. A similar finding was made by Ms. Lang at the time of her investigations. Each of the interim court orders rendered in this Application found that the Children’s best interests necessitated access with the Applicant.

[276] Each of the parties’ A.C.P.P.’s provided that access visits by the Children with the Applicant should take place on Saturday. The Respondent also proposed a mid-week visit for two hours. The parties differed considerably on the amount of time that the Children would be with the Father on Saturday visits as well as the pace of increase for the access time week-to-week.

[277] The Applicant submitted that the length of the access visit should be six hours on the first Saturday, should increase to eight hours the Saturday after and then overnight visits the Saturday following, building to a shared access schedule by July 2019. The Respondent submitted that this was too much, too soon, contending that the access visits should take place every other Saturday, and increase gradually: 4 hours each visit for 12 weeks, then 6 hours for a further 12 weeks, then 8 hours for a further 12 weeks, and then in December 2019 overnight visits each weekend.

[278] In my assessment, the step-up access plan submitted in the Mother’s A.C.P.P. is in the Children’s best interests. It takes into consideration that there will be access every Wednesday, and that access visits on every other Saturday will remain 4 to 6 hours in duration while the parents are engaged in parental counselling. The pace of the Mother’s plan properly reflects the historic access that the Father had before its suspension in May 2017, and takes into consideration that the Children have not spent meaningful time with the Father over the last year and will need time to adapt. The Father’s proposal for the Children to spend overnight time in his residence within the first month of renewed access ignores the fact that they have not had an overnight visit with him in over four years.

[279] I agree with the Mother’s submission that if parental therapy is ordered, as it now is, the access visits should only resume after the parents have had an opportunity to engage in some parental counselling. As such, the access visits should resume within thirty (30) days of the first parental counselling session, estimated as March 15, 2019, but I will build in some additional time to account for possible plans already made for the March Break week and additional time for scheduling the parental counselling.

[280] I thereby order that the first access visit by the Children with the Father shall take place on Wednesday, March 20, 2019, from 5:00 pm to 7:00 pm, and for the same time each Wednesday following, accepting substantively paragraph 47 of the Mother’s A.C.P.P. The Applicant’s first Saturday access visit will take place on March 23, 2019, from 10:00 am to 2:00 pm, and continuing every other Saturday in accordance with the step-up parenting schedule set out in paragraph 48 of the Mother’s A.C.P.P. I also accept the term proposed in paragraph 49 of the Mother’s A.C.P.P. that the Applicant shall have more access if the Children so request. These terms will be implemented in paragraphs 15, 16 and 17 of Part V of these Reasons, Disposition.

[281] This step-up access schedule must be flexible to meet the Children’s requirements, while at the same time respecting the time for the Applicant’s access visits. As such, the Applicant’s access time may be modified to accommodate a special occasion, holiday or school activity or excursion provided that the time so taken from the Applicant’s access entitlements is replaced. This term is substantively accepted from paragraph 50 of the Mother’s A.C.P.P. It will be implemented at paragraph 18 of Part V of these Reasons, Disposition.

[282] The Applicant shall have parenting time with the Children on Holidays. I accept the Holiday schedule submitted in paragraphs 55, 56 and 57 of the Mother’s A.C.P.P., but with an increase of the number of hours of each such visit in recognition that this parenting entitlement will happen in the future, when the duration of the Applicant’s parenting time will have increased. These orders shall be implemented in the terms set out in Part V of these Reasons, Disposition, at paragraphs 19 and 20.

E. Proper Communication and Conduct

Communication

[283] It is in the Children’s best interests to know that both parents know about and are involved in significant aspects of their lives. Disengaged parallel co-parenting requires that the parties’ communications take place in a manner that does not foster or allow for conflict. The parties have already enrolled in Our Family Wizard and have already agreed to communicate using the B.I.F.F. principles. Paragraphs 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 33 of the Mother’s A.C.P.P. are substantively identical to paragraphs 16, 17, 19, 20, 21, 22, 23, 25, 26, 27 and 29 of the Father’s A.C.P.P. These terms are all designed to reduce conflict in the parties’ co-parenting communications.

[284] As reduction in conflict is essential to achieving disengaged parallel parenting, I order that the communication protocols that have been identified by the parties in both of their A.C.P.P.’s, and that are in large part already in place, shall be implemented as part of my Judgment in the terms set out in Part V of these Reasons, Disposition, at paragraphs 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30.

Conduct

[285] The parties recognized, in their testimony, the need for good and ongoing relationships between each of the parents and their extended families. The parties acknowledged that the Children must not be involved in their conflict, in any way possible. Paragraphs 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 15 and 17 of the Mother’s A.C.P.P. are substantively identical to paragraphs 2, 3, 4, 5, 7, 8, 9, 10, 11 and 13 of the Father’s A.C.P.P. These terms are designed to ensure that the parties’ conduct in co-parenting is in the best interests of the Children.

[286] As proper conduct between the parties in co-parenting is essential to achieving disengaged parallel parenting, I order that the conduct guidelines that have been identified by the parties in their A.C.P.P.’s, and said by them to be part of their commitment as co-parents, shall be implemented as part of my Judgment in the terms set out in Part V of these Reasons, Disposition, at paragraphs 31, 33, 34, 35, 36, 37, 38, 39 and 40.

Exchanges of the Children for Access

[287] The access visits require that the Father pick up and return the Children to the Mother. Neither party has attended at the home of the other except for this purpose. Each provide for this term in paragraph 14 of each of their A.C.P.P.s.

[288] For the safety and supervision of the Children, I order that exchanges shall take place at the Mother’s home. It is essential that there be no conflict at the exchange of the Children between the parents. In accordance with the protocol that the parties have adopted, and unless the parties agree on other arrangements, the Father shall remain in his vehicle in the driveway and the Children will meet him in his vehicle at pick-up and leave him in his vehicle at drop-off. These terms shall be implemented as part of my Judgment in the terms set out in Part V of these Reasons, Disposition, at paragraphs 41 and 42.

V. DISPOSITION

[289] For the reasons set out above, I order as follows:

1. The Applicant, N.M.B.’s claim for reversal of custody, temporary denial of access by the Children with the Respondent and Blended Sequential Intervention Therapy, is dismissed.

2. The Respondent, P.P.K.’s claim for sole custody, and for an order that access by the children, G.E.K-B, born [...], 2003, and G.I.K-B, born […], 2006 (the “Children”), with the Applicant be left to the discretion of the Children, is dismissed.

Parenting

3. The Applicant and the Respondent shall use their best efforts to co-parent using a parallel, disengaged model of co-parenting in accordance with the terms of this Judgment, keeping at the forefront the best interests of the Children. The Children’s needs shall be paramount when the parties address child-related matters of any nature.

Residence and Co-Parenting Decision-Making

4. The Children shall reside primarily with the Respondent.

5. The Respondent shall seek and consider the input of the Applicant prior to making decisions for the Children’s care and well-being. If the parties are unable to come to a consensus, the Respondent shall have the final say.

6. The Applicant and the Respondent shall each be responsible for making routine decisions while the Children are in his/her care and shall keep the other party informed.

7. The Respondent shall inform the Applicant of medical and dental appointments with the Children, which the Respondent will attend, and provide the Applicant with an update.

8. The Applicant and the Respondent may each schedule his or her own parent-teacher meetings to discuss the Children’s school progress.

9. The Applicant and the Respondent shall each immediately alert the other parent in the event of a medical emergency impacting one or both Children.

10. The Respondent shall provide the Applicant with a weekly report on Our Family Wizard concerning the Children, including the activities in which the Children are involved, progress in school, significant events and matters concerning their well-being.

11. The Applicant and the Respondent shall each be entitled to receive copies of all medical, dental, school and other reports related to the Children, and shall each be entitled to consult with the Children’s teachers, caregivers, physicians, dentists and other health care providers concerning the general well-being of the Children.

12. The Applicant and the Respondent shall provide each other with the names and contact information for any professionals involved with the Children within five days of the professionals becoming involved.

13. Both parties shall be named as emergency contacts with the Children’s schools. The Mother shall always be called first and if she cannot be reached the Father will be called.

Parental Counselling

14. The Applicant and the Respondent shall commence co-parenting therapy with Dr. Barbara Jo Fidler no later than February 15, 2019, unless Dr. Fidler is not available, in which case they shall commence this therapy at Dr. Fidler’s earliest available date. The costs of the sessions shall be shared equally by the parties. The parties shall engage in the number of sessions recommended by Dr. Fidler up to 16 sessions, after which either party may withdraw.

Step-Up Parenting Schedule

15. Commencing March 20, 2019, the Applicant shall have access with the Children every Wednesday from 5:00 pm to 7:00 pm.

16. In addition, the Applicant shall have stepped-up parenting time with the Children as follows:

(a) Commencing March 23, 2019, and every other Saturday thereafter for 12 weeks, from 10:00 a.m. to 2:00 p.m.;

(b) Commencing June 15, 2019, and every other Saturday thereafter for 12 weeks, from 10:00 a.m. to 4:00 p.m.;

(c) Commencing August 17, 2019, and every other Saturday thereafter for 12 weeks, from 10:00 a.m. to 6:00 p.m.;

(d) Commencing November 9, 2019, and every other Saturday thereafter for 12 weeks, from 10:00 a.m. to 8:00 p.m.;

(a) Commencing February 1, 2020, and every other Saturday thereafter, from Saturday at 10:00 a.m. to Sunday at 10:00 a.m.

17. If the Children, or either of them, requests more time, the Applicant and the Respondent shall confer and construct a schedule where the Child or Children has more access time with the Applicant.

18. If special occasions, holidays, school activities or excursions or other presently unforeseeable opportunities beneficial to the physical, educational, social or emotional development of the Children become available to them, or to either of them, the parties shall accommodate the Children’s participation in any such event, in accordance with their best interests. In the event that any such event were to fall on the time of an access visit with the Applicant, the time shall be replaced and substituted with another day to ensure that the frequency and duration of the Applicant’s time with the Children remains intact.

19. The Applicant shall have parenting time on the following holidays commencing immediately, each time they occur:

(a) Boxing Day, December 26th, from 12:00 p.m. to 9:00 p.m.;

(b) Good Friday, from 12:00 p.m. to 9:00 p.m.;

(c) Father’s Day, from 12:00 p.m. to 9:00 p.m.

20. If the Children, or either of them, request additional time with the Applicant around the Holidays, the Applicant and the Respondent shall accommodate and schedule such time.

Proper Communication

21. To foster consistency, predictability, stability and continuity of care for the Children, the Applicant and the Respondent shall continue to communicate primarily using Our Family Wizard (“OFW”).

22. The Applicant and the Respondent shall maintain their enrollment in OFW until at least January 28, 2020. Each shall pay one-half of the annual enrollment fee. Neither party shall fail to renew the annual subscription unless agreed upon by the parties or further Order of this Court.

23. The communication and information exchange by the Applicant and the Respondent through the OFW shall be child-related information (including healthcare, welfare, significant accomplishments and challenges, education, medical information, extracurricular activities, routine, the need to consult or the need to change or modify any scheduling item) and shall be future-focused regarding an emerging problem, or informative, such as providing information about a medical appointment.

24. The Applicant and the Respondent shall ensure that the Children do not see any of his or her emails or other communication that concern the other party.

25. The Applicant and the Respondent shall respond to messages for which a response is required within 48 hours of receiving an email or message. If a reply requires more time, owing to the need to gather more information, an email or message shall be sent within the 48 hours advising the reply cannot reasonably be given within the 48 hours and advising when it can be expected.

26. For emergencies or time-sensitive, urgent or day-to-day matters requiring a quicker response than within 48 hours, the parties may text or telephone the other parent, who will reply as soon as he or she receives the communication.

27. The Applicant and the Respondent shall continue to follow the B.I.F.F. (Brief, Informative, Friendly and Firm) protocol. For clarity, “Brief” means that each email shall be less than 7 sentences.

28. The Applicant and the Respondent shall demonstrate polite and respectful behavior to each other at all times, not only in their written communications or when the Children are present or nearby. No abusive, insulting, sarcastic or profane language shall be used in any communication. Further, the parties shall refrain from including information reflecting their personal opinions and feelings about the other party. Any concerns or questions shall be presented neutrally without blame or criticism.

29. The Applicant and the Respondent shall not delete emails that they exchange. In the event that any parenting issue is returned to this Court, the communication on the OFW may be copied and filed with the Court.

30. The Applicant and the Respondent shall share all documents pertaining to the Children by scanning and storing the information into OFW where the information can be accessed by the other party. The parties shall not have the Children transport documents between them.

Proper Conduct

31. The Applicant and the Respondent shall make every effort to facilitate the Children’s relationships with the other party and their extended families.

32. The Applicant and the Respondent shall not denigrate or be critical of the other party, either overtly or covertly, in any communication with the Children or with others when the Children are present, or even nearby in a position to overhear.

33. The Applicant and the Respondent shall advise others, including friends, new partners, relatives and extended families, to refrain from criticizing or disparaging the other party to or in front of the Children.

34. The Applicant and the Respondent shall not discuss with the Children or with another person in the presence of the Children, any legal proceedings affecting them, issues or conflicts between the parties related to any such legal proceedings, including the Reasons for Judgment herein, until first having commenced the parental counselling, having obtained the input of Dr. Fidler, and agreeing upon common messaging to the Children of the parenting arrangements, going forward.

35. The Applicant and the Respondent shall not ask or encourage the Children to make requests or proposals on his or her behalf, or to relay sensitive or contentious information from parent to parent. The Children shall not be asked by the parties to transport mail, documents or any materials between them.

36. The Applicant and the Respondent shall not comment, initiate discussion or question either child about the other parent’s work schedule, arrival and departure times, parenting behavior, personal life, whereabouts and activities. The Applicant and the Respondent shall encourage the Children to talk directly to the other parent.

37. The Applicant and the Respondent shall address each other cordially and respectfully at all times in the presence of the Children. The parties shall not communicate with each other about contentious or potentially contentious issues or non-emergency arrangements when the Children are present or nearby, at transitional times or exchanges, extracurricular activities, school events or other special events involving the Children.

38. The Applicant and the Respondent shall not interfere, directly or indirectly, into the lives, activities or routines of the Children when they are with the other party. Unless indicated in this Judgment, or unless with the consent of the other party, neither party shall schedule activities or events during the Children’s time with the other party.

39. The Applicant and the Respondent shall not leave out or make available to the Children any written or digital information, including legal or other documents, pertaining to any issues arising from their disputes and litigation.

40. The Applicant and the Respondent shall not use any form of social media to post information about the other party or any issue between them as parents.

Exchange of the Children for Access

41. The Applicant and the Respondent shall not go to the other party’s home or place of employment except for the purpose of picking up or dropping off the Children, or either of them, or on the consent of the other party.

42. The Applicant shall pick-up the Children at the Respondent’s home and, unless the parties agree on other arrangements that shall not cause any conflict, the Applicant shall remain in his vehicle in the driveway and the Respondent shall direct and cause the Children to meet him at his vehicle.

VI. COSTS

[290] I encourage the parties to discuss and agree on the issue of costs.

[291] If the parties are not able to agree on the issue of costs by February 28, 2019, the Applicant may deliver to me written submissions on costs, of no more than 4 pages in length (plus his cost outline, any offer to settle and authorities relied on) by no later than March 15, 2019. The Respondent shall then deliver to me her written submissions on costs, of a similar length, within 15 days of receipt of the Applicant’s cost submissions or by March 29, 2019, whichever is earlier.

[292] If neither party delivers written costs submissions by March 29, 2019, I will deem the issue of costs to have been settled.

Sanfilippo J.

Released: January 28, 2019