ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
V.L.
Applicant
– and –
M.L.
Respondent
Gil D. Rumstein, for the Applicant
Eric Letts, for the Respondent
Pamela Barron, Office of the Children’s Lawyer
HEARD: October 2, 3, 4, 8, 10, 11, 16, 17 and 18, 2019
REASONS FOR decision
Audet J.
1This trial was held before me over the course of nine days. The main issue before me is the determination of which parenting arrangements would be in the best interests of the parties’ 13-year-old son, U.L. More specifically, I was asked to decide which parent should have custody of U.L. and whether he should resume parenting time with his father.
2When this matter came before me in the context of a contested motion on December 21, 2017 (I had previously signed a consent order in July 2017, when the motion was first adjourned), I seized myself of all further motions, as well as of any eventual trial. Over the many months that followed, I made several temporary orders by which I gradually increased the father’s access to U.L. and eventually lifted the need for supervision, only to suspended it altogether on August 28, 2018. During the year that followed, I imposed a graduated therapeutic intervention plan which included individual counselling for the parents and the child, and which was to lead to reunification therapy once U.L.’s counsellor felt he was ready to engage.
3None of my efforts led to any significant progress over the course of that year. In fact, U.L.’s estrangement from his father has amplified and he has regressed: he steadfastly refuses to have any contact with his father and objects to any further forms of therapy. This is due to several factors and events which will be explained in more details below.
4It is the mother’s position that the father was emotionally and psychologically abusive to both herself and U.L. throughout the parties’ marriage. She alleges that the father was also physically abusive to her at the very beginning of their relationship (although not thereafter). She also alleges that the father was physically abusive towards U.L. when he was younger, although such abuse occurred mostly when she was not present. The mother states that she left the marriage to protect U.L., when it became apparent to her that the conflict and abuse in the home was having a serious impact on his emotional health and well-being (he was 10 when the parties separated). She maintains that U.L. has never had a healthy or meaningful relationship with his father and that his refusal to maintain contact with his father after the parties’ separation is reasonable and justified given the abuse he has suffered at his father’s hands. In her view, the father has gained no insight whatsoever into how his own behavior has caused U.L. to be irrevocably estranged from him, an estrangement that began well before she left the marriage.
5It is the father’s position that the mother suffers from mental health issues and has a history of making false accusations against him when the relationship was in trouble. He denies any allegations that he was ever physically, emotionally or psychologically abusive to either the child or the mother. He maintains that the mother has two faces: outwardly, she wants to seem reasonable and supportive of a relationship between U.L. and him, and she tries to look supportive and encouraging of access. Inwardly, the father maintains that she influenced U.L., manufactured stories of abuse and actively interfered with his relationship with him. While he admits shortcomings and a role in contributing to the current situation, the father feels that, absent the mother’s active campaign to sever his relationship with U.L. and remove him from his life, he would still have a strong and healthy relationship with his son.
6The parties submit that this case turns on credibility. If I find that the father is the most credible witness, and that his testimony with regards to relevant events which occurred before and after separation is corroborated by the evidence, he asks the court to reverse custody and primary care of U.L. to him, which would allow him to engage U.L. in much-needed therapy for the purpose of repairing the emotional harm caused to him by his mother and restore his relationship with his father. Once this has been achieved, he would be prepared to return to an equal time-sharing arrangement.
7If I come to the conclusion that the mother is the most credible witness, and that her version of pre and post-separation events is supported by the evidence, she asks the court to maintain the status quo that has been in place since the parties’ separation by giving her sole custody of U.L. with primary residence, and to not force U.L. to have contact with his father against his will. It is her position that U.L. needs time and space to heal before any contact can take place between him and his father if there is any hope that the relationship can ever be repaired at all, to any degree. She is of the view that no access should be imposed on U.L. at this time, and that he should no longer be forced to participate in any kind of counselling, unless he is ready and willing to engage.
8U.L. is represented by Ms. Barron, a lawyer appointed by the Office of the Children’s Lawyer (“OCL”) to represent him. On behalf of her client, Ms. Barron takes the position that it does not matter who is right and who is wrong. In her view, the relationship between U.L. and his father is irrevocably broken, and U.L. has been very clear about his wish to discontinue any form of contact with his father. In fact, it is the OCL’s position that any further attempt to force U.L. to engage in a process against his will, whether it is access, counselling or reunification therapy, will cause him significant emotional harm and may even present a risk of physical harm.
9I have come to the conclusion that it is in U.L.’s best interests that sole custody be given to his mother, and that he continues to have his primary residence with her. I have also come to the conclusion that after all he has been through, U.L. must be given the chance to enjoy the rest of his childhood free from stress, fear, pressure, parental conflict and constant scrutiny and oversight (including judicial). While my decision will undoubtedly be very difficult for the father to accept, I want to believe that if he truly loves U.L., as he says he does, he will put his son’s best interests and well-being ahead of his own and accept this outcome. It is my hope that, even if he disagrees with my factual findings, the father will come to the realization that pressuring U.L. to have a relationship with him any more than we already have will only push him further away, and undoubtedly cause him ongoing emotional and psychological harm: it may even lead to physical harm to U.L.
Background
10The parties are both from Sri Lanka. They were married on February 2, 1998 in London, England. This was a marriage arranged by the parties’ families, as was the custom, at the time, in their culture. The mother testified that one day in 1996, she got a call from her sister advising that the father would come to meet her the next day with a marriage proposal. After only two brief meetings and a long-distance relationship over the telephone, the parties were married. They began living together when the mother moved to Canada in July 1999.
11The mother explained that the relationship was strained from the very beginning. After the marriage, the parties travelled to Sri Lanka to visit their families and conflict immediately arose over the father’s insistence that real property belonging to the mother’s parents be immediately transferred into her own name as part of her dowry and as agreed to between the parties’ families before the marriage. This led to significant conflict between the two families, which continued well after the parties had returned to Canada.
12When the mother immigrated to Canada, she had no formal education (that I was made aware of), and she did not work outside of the home. U.L. was born in June 2006. Although I was not provided with much detail in that regard, I understand that in or about 2011, the mother went back to school and in the summer of 2014, successfully completed a degree in accounting. In October 2014, she began working full-time as a customer representative. U.L. was eight years old at the time. This is the employment that the mother still had when the parties separated in May 2017. However, as of August 2018, the mother is in receipt of long-term disability benefits. The father has been employed throughout by the federal government and at the time of this trial, worked as a support technician.
13The parties separated on May 28, 2017. On that day, and while the father was away on a two-week trip to Sri Lanka, the mother packed all of her and U.L.’s belongings and moved out of the matrimonial home without notice to the father. When the father returned home on May 31, a letter from the mother’s lawyer had been left in the home, informing him of the mother’s decision to separate and inviting him to communicate with her to discuss issues arising from the separation, including access between him and U.L.
Court Proceedings
14The father initiated these proceedings on June 13, 2017. I find that it is not necessary to describe in detail all the steps taken by the parties in the context of the two and a half years of litigation that ensued. The following steps in the case are the most important to mention.
Motion of July 25, 2017
15There was very little access, if any, between the father and U.L. following the parties’ separation and until the first motion was brought before me on July 25, 2017. At that time, the parties consented to a without prejudice order granting the father supervised access to U.L. twice per week, for half an hour each, to occur in the presence of a third party agreed upon by the parties. Longer visits were to be accommodated if U.L. expressed the wish to extend his visit with his father. The parties further agreed to retain Ms. Rekha Chagarlamudi to provide counselling to the family in order to ease the child’s fears and anxieties when exercising access with his father, to increase access between the child and his father, to provide the parties with strategies to better co-parent and communicate, and to work towards the elimination of any form of supervision.
16Despite this order, access visits did not proceed according to plan. This was mainly due to the parties’ inability to find a supervisor suitable to them and who could commit to access visits on a regular basis. In addition, the Children’s Aid Society (“CAS”) got involved as a result of various events which need not be related here, but which led to their becoming engaged with the family without a protection application being filed.
Motion of December 21, 2017
17On December 21, 2017, on consent of the parties, the need for supervision was lifted. While the evidence made it clear that U.L. was experiencing significant stress and anxiety around his visits with his father, the cause of that fear and anxiety was unclear. In light of the child’s strong resistance to attend access with his father, and in the hope of avoiding a further deterioration of their relationship, visits were to be exercised in the community twice a week, for two hours every Tuesday after school and for three hours every Saturday. If U.L. expressed his clear wish to end the visit, the father was to return him to his mother. Access was to be reviewed during the week of January 29, 2018, and the parties were to immediately retain Dr. Weinberger to complete an assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”).
18During that time, U.L.’s distress and anxiety continued to intensify. As of December 30, 2017, access had been discontinued by the mother following a visit at U.L.’s family doctor, Dr. Rabie, who wrote a letter recommending that access be immediately suspended. In an affidavit sworn January 16, 2018, Dr. Rabie reported that she had completed several counselling sessions with U.L. and his parents, but U.L.’s anxiety continued to get worse and he had complained of physical symptoms such as vomiting and irritable bowel syndrome. She recommended that U.L. be seen by a psychologist to assist with his anxiety and that visits between him and his father cease until the severity of U.L.’s symptoms subsided.
Motion of January 31, 2018
19When the motion returned before me on January 31, 2018, I expressed significant concerns about the evidence of Dr. Rabie. I was of the view that she gave little context to her recommendation and that she appeared to be advocating the mother’s position rather than providing an objective professional opinion (having now heard all of the evidence, I realize that Dr. Rabie’s recommendations were well informed and quite sound). I was also not persuaded by the mother’s evidence of the “significant distress and anxiety” U.L.’s three access visits with his father had caused him, given that the only difference between the (very limited) access before and after my December 21, 2017 order was that it was now unsupervised. Further, I was distraught by the fact that U.L. had not yet been seen by Ms. Chagarlamudi, which was the responsibility of the mother to arrange.
20Finally, I was of the view that the court needed the insight of Dr. Weinberger’s assessment to be in a position to determine what access, if any, was in U.L.’s best interests, and this assessment would not be possible unless there was meaningful contact between U.L. and his father. As a result, I ordered counselling with Ms. Chagarlamudi to be arranged on an emergency basis and unsupervised access between U.L. and his father was to resume immediately after the first session. The access schedule was slightly modified to ensure that U.L. would not be exposed to further conflict between his parents at exchanges, which I felt might have resulted in some of U.L.’s increased stress and anxiety.
Motion of July 24, 2018
21On July 24, 2018, another motion was brought before me by the father seeking direction following disagreements between the parties regarding pick-up and drop-off locations. Since the existing order provided for U.L. to be picked-up at school by his father, and since school was over by then, U.L. had missed most of his access visits with his father since the end of June because the parties had been unable to agree on a pick-up location. In addition, the CAS, who continued to be involved with the family, was not supportive of continued contact between U.L. and his father, although more aggressive action was still not being taken by it.
22Finally, Ms. Chagarlamudi had terminated her services to the family on March 2, 2018. In a letter dated May 14, 2018, she expressed escalating concerns related to in-session and between-session events; and that by March 2, 2018, she no longer believed it was in U.L.’s best interests to continue counselling due to the damaged therapeutic relationship between her and U.L., and “the mother’s continued lack of insight and commitment to the therapeutic process”. As a result of Ms. Chagarlamudi’s termination of her services to the family, each parent had felt entitled to bring U.L. to their own, unilaterally chosen counsellor, resulting in U.L. having counselling sessions with Ms. Maureen Sullivan while in the care of his mother, and with Ms. Monica Meyer while in the care of his father.
23At the time the father filed his motion materials, Dr. Weinberger had not yet completed his assessment. However, two days before the motion was to be heard, he felt compelled to produce an interim and abbreviated report to provide the court with some insight into the situation until he was able to complete his more comprehensive assessment report. In light of Dr. Weinberger’s reported observations of a visit between U.L. and his father at his home, which I found alarming, I decided to temporarily suspend the father’s access to U.L. until Dr. Weinberger’s comprehensive report could be produced. By the time the motion was finally argued on September 21, 2018, there had been no access between U.L. and his father for over two months.
Dr. Weinberger’s Assessment Report
24In addition to his individual meetings with the parents and his communications with a great number of collaterals, Dr. Weinberger saw U.L. alone on two occasions. U.L. complained to Dr. Weinberger that his father force fed him during visits and that this stopped only recently; that he forced food through his teeth or forced it up with his fingertips and forced it into him, and; that he put strawberry milk up against his mouth and tried to force him to drink it. He reported that once during a visit at his father’s residence, he went into the washroom and locked himself in but that his father tried to pick the lock to gain entry anyway, as he did not want to leave him alone. He expressed being happier when the visits were supervised because there was someone to intervene to make his father stop talking about things he was not interested in, something that was not available to him when the visits were unsupervised. He complained of being hit by his father with a belt up until age 8 or 9, and that sometimes his father hung him by his feet and threatened to drop him headfirst on the kitchen tiles when he was 10 years old.
25U.L. further stated that at a recent Vesak celebration (a holiday traditionally observed by Buddhists), which he said his father “forces him” to attend, and during which his father “forces him” to make a speech in front of the crowd, he told the audience that he hated his father and would rather die than to be with him. He reported being afraid that his father would poison him after he made such a hateful public speech, and that if he was ever going to put him on stage again, he would expose him for “what he was doing to him.” U.L. went on to complain about his father ranting all the time, which is why he would never sit in the front seat of the car with him, hoping to get away from his father’s incessant talking, and that there was absolutely nothing enjoyable to be had with his father. He expressed that his father never listened to him no matter how many times he told him his views, and that he forced him to do things that he had made clear he did not want to do (such as playing golf, fishing, or going to a particular school).
26U.L.’s account of his relationship with his mother was completely the opposite. He expressed being heard and listened to by her, and that his mother would ask him if he would like to do something and then go with his expressed wish instead of pressuring him to do things, as did his father. He reported enjoying activities with his mother such as baking and making Jell-O, going on play dates or doing his homework. Whereas there were some concerns that U.L. had suffered from suicidal ideations in the past, he expressed to Dr. Weinberger that he no longer felt like hurting himself and that when he did, it was related to “seriously” hating the visits with his father. He further stated, “I love what happens except for the visits, but the visits don’t happen a lot of the time so I’m more happy than I am sad.”
27Despite U.L.’s completely positive report of his relationship with his mother, Dr. Weinberger was of the view that the information obtained through his interviews with the mother and from others showed a significant influence on her part, which might have contributed to the problem to a certain extent.
28In his final report, Dr. Weinberger reproduced his observations from visits at both parents’ homes, which he had felt was important for the court to be aware of at the July 24, 2018 motion. Of particular note is Dr. Weinberger’s observations during a visit between U.L. and his father which occurred on May 15, 2018. During that visit, U.L.’s tone in response to his father’s attempt to engage him in conversation was cross and irritated, and he refused to engage in any way with his father. When the father tried to disengage him from his iPad or to interest him in another activity, U.L. would react aggressively, yelling at him to stop staring, to be quiet, to leave him alone and to shut up “for once.” The father’s response to his son’s dismissive and rude behaviour, according to Dr. Weinberger, was inappropriate which prompted U.L. to respond even more derisively, telling his father to “stop laughing like that, that it was infuriating.” In his report, Dr. Weinberger stated that a striking aspect of his observations was the stress the child was experiencing and the blatant stance he took vis-à-vis his father who he clearly stated he did not want to be with.
29As a complete contrast to this behaviour while with his father, at his mother’s home, U.L. was observed to be calm, polite, and easily engaged by his mother. Dr. Weinberger observed an obvious pattern of communication, collaboration, and mutual ease and comfort throughout the session. U.L. showed no disrespect or attitude, whatsoever, toward his mother and always participated positively with her.
30In light of the above, Dr. Weinberger concluded that the significant stress that U.L. was experiencing, and the blatant stance he took with his father, “was extraordinary”. He concluded: “That there is something terribly amiss here seems patently evident and reinforces the many other examples of how distressed and conflicted the relationship has become between U.L. and his father.” He pointed to U.L. being under significant stress, and that the potential repercussions on his mental health over the long term, should conflict persist, could not be understated.
31Regarding the father, Dr. Weinberger concluded that he rambled, that his thinking was often not well organized and that he could get over-animated. The father had a way of persisting, and to excess. Dr. Weinberger was of the view that U.L.’s forceful complaints of feeling harassed by his father should not all be dismissed given his father’s behaviour style. He felt troubled by the father trying to convince U.L. to tell Dr. Weinberger that all was well at the visits, something U.L. flatly denied. He felt that the father’s intensity in his approach might interfere with his ability to listen or to take direction when it came to his son and family. He also questioned whether the father was able to interpret well, given his comments to the effect that U.L. and he were close, that access had gone well and that he had good communication with U.L.’s school; all of which was clearly untrue. The father’s belief that his problems with U.L. were solely the result of the mother’s influence, and not at all his own actions, was problematic.
32Regarding the mother, Dr. Weinberger expressed clear concerns about the negative influence she had on U.L. with regards to his relationship with his father. Her explanations with regards to the father’s motivating intention about attending events to which he was not invited (“he just wants to stir U.L. up”) showed, not only her negative view of the father, but also her questionable thinking. Dr. Weinberger was of the view that, given the very close and purposeful mother-child relationship, it was difficult to see how the mother’s own strongly held views about the father (she compared him to a pedophile at one point) would be fully shielded from the child. Rather than challenging U.L. to consider an alternate view or other ways to behave with his father, he felt the mother might advertently or inadvertently be abetting the conflict.
33Despite the above, Dr. Weinberger concluded that, to whatever degree they each contributed to the problem, both parents nevertheless love U.L. genuinely and deeply and are immensely proud of his academic success. Since U.L. is their one and only child upon which to shower their attention, he expressed the view that both could contribute immeasurably to his life and well-being, so long as “things could be put on a healthier footing.” Dr. Weinberger expressed that the current regime was both unworkable and untenable; U.L. refused to go with his father and access, at this time, was stressful for him and presented emotional and physical concerns.
34In Dr. Weinberger’s opinion, both parents had so much to criticize about the other that it became difficult to see an end. He felt that, given the significant level of difficulty in this family, it was very important that there be assistance from the court to not only keep the parties separate from each other, but to also make professional help, once again, a priority requirement for everyone, and particularly for U.L. Dr. Weinberger expressed the view that U.L.’s mental health had become increasingly compromised by, among other things, the stress of his relationship with his father and his inability to be heard by him and others.
35Based on all the above, Dr. Weinberger made the following recommendation with regards to therapeutic intervention for this family:
For the father, completing a structured anxiety management program to help reduce his, at times, exceptional anxiousness and fears of losing his child and how upset he can get with the mother; therapy aimed at helping him continue to develop self-awareness and insight into how he contributes to the problem and to provide him with problem-solving skills to better relate to U.L. and to cooperate with the mother;
For the mother, therapy aimed at helping her continue to develop self-awareness and insight into how she contributes to the problem including how she influences U.L. against his father, intentionally or otherwise; and to help her build her co-parenting skills;
For U.L., private counselling sessions aimed at providing him with a private forum to learn how to better deal with his issues with his father and how to manage the stress he is under. If the parties cannot agree, the court should appoint that counsellor. There should be strict boundaries for the parents to comply with as far as U.L.’s counsellor and counselling sessions are concerned;
For U.L. and his father, joint counselling sessions to try to rebuild a functional and healthy relationship.
36The following conclusions of Dr. Weinberger were noteworthy at the time of the motion before me, and continued to be very relevant in the context of this trial:
The reconstructive work cannot be in a vacuum if there is to be hope of success. The foundation for it will need to be built via each of the individual counselling efforts above-noted. There needs to be at least some measure of progress at the father’s end, the mothers’ end, and at U.L.’s end, for the reconstructive process to have something to work with to give it practical support.
There is no quick fix that I can see to this situation given the strength of emotions and the embeddedness of some of the challenges. For the needed changes to occur one can foresee that intervention will need to be comprehensive, integrated, and over the long-term.
There is so much conflict here that regardless of the multi-faceted counselling it is difficult to see how progress will be made without the continuing oversight of the court and the setting of requirements for each parent that they are to participate and demonstrate progress subject to further action by the court.
37Regarding access between U.L. and his father, Dr. Weinberger was of the view that access should be supervised, on the short-term, if it was to happen at all. He suggested that supervised access was to occur in a formally recognized site with an established structure, rules and trained staff who could impartially monitor, observe, and document and no less importantly, intervene, should there be risk to the child’s emotional or physical safety.
Motion of September 21, 2018
38Based on all the evidence before me at the September 21, 2018 motion, I was convinced that the estrangement between U.L. and his father had been caused by many factors, not the least of which was the father’s own conduct and behaviour towards him over the course of many years. While I found that the mother, despite her voiced willingness to support the relationship between U.L. and his father, by her actions, had conveyed a very different message to U.L. I did not accept that the mother had engaged in parental alienation as alleged by the father. I accepted Dr. Weinberger’s opinion that without an integrated professional therapeutic intervention with the entire family, any hope to rebuild a positive relationship between U.L. and his father would be lost forever. I was of the view that there was simply no legal solution for this family unless it was grounded upon and supported by therapeutic assistance.
39As a result, and despite U.L.’s alleged strong resistance to participate in any further counselling, I followed Dr. Weinberger’s recommendations and made the multi-faceted therapeutic orders he had suggested in his report. Of particular note, for the purpose of this trial, are the following aspects of my temporary order of October 10, 2018:
A lawyer was appointed to represent U.L.;
The parent’s and U.L.’s proposed therapists were to be approved in advance by Dr. Weinberger and a copy of Dr. Weinberger’s assessment as well as my lengthy reasons for decision were to be provided to those therapists once retained;
U.L.’s individual counselling sessions were to be entirely confidential and aimed at providing him with a private forum to learn how to better deal with his issues with his father, prepare him for the resumption of access with his father, and help him manage the stress he was under. His confidential counselling included the prohibition of his counsellor participating as a witness in this court proceeding, subject to the counsellor’s discretion to do so on his or her own volition;
U.L.’s counsellor was permitted to consult with other professionals providing services to U.L. as he/she deemed necessary, to provide U.L.’s lawyer with an update and to communicate with the parties or the court, as he or she may deem necessary and/or appropriate, at his/her sole discretion. Neither parent was permitted to communicate with U.L.’s counsellor, once retained, unless at the counsellor’s specific request, which was to be made known to both parents;
U.L. was to be in charge of choosing his own counsellor, with the assistance of his lawyer;
At the request of U.L., and with the consent of his counsel, a meeting could be arranged between U.L., his lawyer and myself, to give U.L. an opportunity to discuss with me my decision, hear his concerns about it, and insist on his meaningful collaboration and involvement in this process;
Another motion hearing was to be scheduled before me on or before December 20, 2018, to revisit the issue of temporary access and joint reintegration counselling between U.L. and his father.
40U.L. did opt to meet with me to discuss my decision. This judicial meeting took place in November 2018 with only his lawyer present. At the end of that meeting, U.L. had reluctantly agreed to engage in confidential counselling as previously ordered by me.
Case Conference of November 15, 2018
41On November 15, 2018, a case conference was held before me, as directed by me in my October 2018 order, to discuss the family’s progress and/or any difficulties in engaging in the services outlined in my order. It is important to mention that in my endorsement following the completion of this case conference, I noted the following:
U.L.’s readiness to begin contact with his father is an issue.
U.L.’s right to absolute confidentiality regarding counselling is a priority.
Both parents agree that some input as to U.L.’s readiness to engage in reunification therapy or contact with his father needs to be provided before decisions with regards to future motions for access can be made.
Both parties and U.L.’s counsel agree to retain the services of Ms. Nadine Crowley to provide reunification therapy to the family if/when U.L. is ready. To that extent, Ms. Crowley is permitted to discuss with U.L.’s counsellor but the content of those discussions will not be subject to scrutiny by the parties.
Motion of April 25, 2019
42On April 25, 2019, the father brought a motion seeking the resumption of his access with U.L. He urged me to impose some supervised access between him and U.L. whom he had not seen for nine months. The father was highly concerned that the lengthy delays in reinstating some form of access between them would irrevocably end any possibility of reunification between him and U.L. The mother maintained that U.L. was not ready to begin the reunification process, or to have contact with his father.
43In the context of that motion, I found that both parents had fully met their obligations pursuant to my October 2018 order as it related to them accessing therapeutic services for themselves. The services of Dr. Goldstein had, by then, been retained to provide U.L. with individual counselling, but U.L. had only met with her on five occasions. According to psychological testing performed by Dr. Goldstein and shared with the parents, U.L. was found to show signs of severe trauma, anxiety, depression, uncertainty, fear, anger and sadness. He continued to be steadfastly opposed to access with his father.
44It is important to note that in the context of this motion, it was brought to my attention that the father had had an hour-long session with Dr. Goldstein, contrary to my October 2018 order which made it clear that neither parent was to have any contact with U.L.’s counsellor in any way, except for the mother to schedule appointments, and unless requested by U.L.’s counsellor. At the time, it became clear that Dr. Goldstein was not aware of my October 2018 decision and its provisions preventing the parents from communicating with her unless at her specific request, which was to be made known to her by both parents.
45Based on the additional evidence before me in the context of this trial, I find, as a fact, that Dr. Goldstein was not aware of the provisions of my October 2018 order, and that she contacted each parent to schedule an initial intake meeting with them. While the mother strongly objected to Dr. Goldstein’s request for an intake meeting with her, bringing to her attention the existence of a court order preventing such contact, when contacted by Dr. Goldstein for the same reason (previously) the father did not question Dr. Goldstein’s request, and readily agreed to meet with her.
46While I find that the father did not intentionally breach my October 2018 order, as his meeting with Dr. Goldstein had been specifically requested by her as permitted by my order, the unfortunate result is that U.L.’s trust in the process and in his own counsellor’s loyalties was significantly shaken once he became aware of the fact that his father had met with his counsellor for a lengthy meeting “against my order”.
47Ultimately, I refused to reinstate access between U.L. and his father. I was of the view that U.L. was just starting to build some trust with Dr. Goldstein and that the parties had to let the process of reunification play out as anticipated and recommended by Dr. Weinberger. This was reinforced by Ms. Crowley and Dr. Goldstein’s common view that U.L. might be ready to begin the process of reunification, but that it would have to be at his own pace. I was concerned that forcing U.L. to have contact with his father, if not yet ready, would undermine the reunification process and might even defeat the therapeutic efforts entirely.
48While I refused to reinstate access at that time, I agreed with the father that counselling was not going at the pace it should if there was any hope of progress before the trial set to proceed in September. I ordered the mother to ensure that U.L. attended counselling with Dr. Goldstein every second week, beginning May 6, unless Dr. Goldstein was of the view that the duration and frequency of sessions became detrimental to U.L.’s emotional or psychological well-being. Counsel for U.L. was asked to obtain Dr. Goldstein’s view at the end of June as to whether U.L. was ready to begin the reunification process with Ms. Crowley. The parties were asked to re-appear before me at the end of June to reassess the situation.
Motion of July 2, 2019
49On July 2, 2019, the parties re-appeared before me. By then, counselling sessions between Dr. Goldstein and U.L. had stopped due to U.L.’s refusal to continue to attend. Through discussions between him and Dr. Goldstein between April 25 and May 17, U.L. discovered that his father had had a meeting with Dr. Goldstein (as mentioned above), which made him very upset. Based on his discussions with Dr. Goldstein, he came to believe that the whole purpose of his counselling sessions with her was to force him to see his father again, and that “the whole thing was a conspiracy to send him back to his father”. At that time, he conveyed to his mother that I had promised him when he and I met (back in November 2018) that if he went to counselling, I would put more weight on his expressed wishes and preferences, and that both myself and Dr. Goldstein had lied to him and “backstabbed him”.
50As a result of these events, counselling sessions between U.L. and Dr. Goldstein were suspended by myself in the context of a Case Conference held on May 17, 2019. On the same day, and with the consent of both parties, I asked Ms. Crowley to meet with U.L. and/or both parents, as she deemed appropriate or necessary, to assess whether therapeutic reunification would be appropriate in light of all the circumstances.
51In the context of the father’s motion heard on July 2, Ms. Crowley had met with U.L. and his parents, had spoken to U.L.’s therapist, and provided a brief report. She informed me that U.L. had made it very clear that he was refusing to attend any further sessions with her or any joint sessions with his father. Even though Ms. Crowley was of the view that it was important for U.L. to be provided with an opportunity to rebuild his relationship with his father through a series of joint meetings with her, in her view, reunification therapy would not be moving forward due to U.L.’s steadfast refusal to engage. U.L.’s counsel also confirmed on that day that U.L.’s views and preferences were made consistently clear to her by him and that he would not consent to, or cooperate with, any order forcing him to attend supervised visits with his father.
52By then, U.L. had turned 13.
53In light of all this, I found myself unable to decide what was best for U.L. without the benefit of a full-blown trial where all of the parties’ evidence and allegations could be fully canvassed and tested. As I stated at the time, if the mother’s version of the facts was to be believed, I would be forcing U.L. to have contact with a man whom he and his mother had fled as a result of significant abuse (both before and after separation), and with whom he had never had a close or healthy relationship. If the father’s version of the facts was to be believed, U.L.’s views and experience of his father had been significantly influenced by an alienating parent and the steps to be followed to reintegrate him into his father’s care would be drastically different.
54In those circumstances, I declined making a temporary order for supervised access, and left the issue of the father’s future contact with U.L. for trial, which was set to proceed, at that time, three months down the road.
Findings of Facts
Credibility
55Based on all the evidence before me, I conclude that U.L.’s relationship with his father was significantly damaged long before his parents separated. This was the result of many factors which will be explained in more detail below. Although I find that both parents share the responsibility for this increasingly damaged relationship, I find that U.L.’s estrangement from his father is mainly due to the father’s abusive behavior and lack of insight into how his actions have significantly alienated his son from him over the years. Even though the mother is not without blame for this deeply sad outcome, overall, I found her testimony on critical events much more credible than the father’s, for several reasons.
56First of all, her testimony as well as her experience with the father is corroborated by many witnesses including many professional witnesses with whom she has had contact years before the parties’ separation. More importantly, and although I find that U.L.’s perception of events have been influenced to a certain extent by his mother, U.L.’s personal experience of his father is mirrored by the mother’s and by many other individuals (many were witnesses in this trial) who have had contact with him in the past. Overall, most of the witnesses who appeared before me in this trial corroborated U.L.’s and the mother’s testimonies on several key events.
57Secondly, I found the mother much more balanced in her testimony: when she was not sure, she said so; she was able to admit that, at times, her interventions with U.L. have not been helpful or appropriate; she was conscious of the fact that her actions, reactions and inactions during the marriage had contributed to U.L.’s mounting emotional and psychological distress, and she expressed regret. Overall, and although there remains much work to do on her part, I found that through the involvement of the various professionals who have assisted this family since the beginning of these proceedings, she has shown some insight as to the role she has played in U.L.’s ever-increasing estrangement from his father. As an example, the mother was able to clearly articulate and explain the obvious inconsistency between her stated desire to promote U.L.’s relationship with his father and the position taken by her in this trial wherein she is objecting to U.L. having contact with his father at this time.
58In contrast, the father admitted no responsibility whatsoever in U.L.’s current estrangement from him. Throughout this trial, his position remained unchanged: the mother is solely and entirely responsible for the current state of affairs, and he played absolutely no role in it. The father’s testimony throughout this trial made it clear that he never had, and to this day continues to lack, insight into how his behavior has negatively impacted his relationship with U.L. Despite the clear evidence showing the opposite, throughout the trial the father maintained that he and U.L. shared a close and loving relationship until the parties’ separation. Despite a detailed account by Dr. Weinberger of an exceptionally disastrous observation visit between U.L. and his father, and despite U.L.’s detailed and repeated account to several witnesses over many years of his very negative experiences of him, the father adamantly maintained that he and his son were very closely bonded until he left with his mother, and that father and son always had a great time during access visits post-separation. This significantly affected the father’s credibility in this trial.
59During her lengthy testimony and cross-examination, the mother was able to provide a very detailed account of innumerable events and incidents of conflict and abuse which occurred over the course of the parties’ relationship and during U.L.’s life. The mother’s testimony with regards to many of those events was corroborated by many other witnesses as well as documentary evidence including CAS records, police records and health professionals’ records. More importantly, her description of many of those events was mirrored by U.L.’s own reports of those same events which he communicated to his teachers, doctors, counsellors, Society workers, Dr. Weinberger, his own lawyer and Ms. Norgaard (to name only those). While I have some concerns about U.L.’s recollection of key events being somewhat influenced by his mother, overall their stories “stick” and overwhelmingly support their version of what transpired in their home and within their family unit both before and after the parties’ separation.
60In contrast, in the face of the mother’s, U.L.’s and various other witnesses’ very detailed accounts of specific events involving him, the father’s general response was to deny that these events unfolded the way others described them (without giving his own explanation of what might have actually occurred), or to significantly downplay the intensity or seriousness of his actions or reaction to specific incidents.
61Many of the father’s answers to questions asked of him during his cross-examination also made me seriously question his credibility. For instance, although in his examination in chief he was able to remember very precise details of events having occurred many years before (the father often went on and on describing many details which had very little bearing on the question that was asked), when asked in cross-examination if he remembered his wife leaving him in 2000 to go to a women’s shelter, he could not remember. His response was that he had “trouble remembering what he ate the night before, so how could he remember something that might have happened in 2000?”. I venture to say that one’s partner leaving one’s home to flee to a shelter as a result of alleged domestic violence is one of those remarkable events in a couple’s relationship that one does not forget.
Allegations of abuse
62As stated above, the parties’ relationship was acrimonious from the very beginning, starting when the parties travelled to Sri Lanka to visit their families after their wedding. The father’s insistence in the mother being immediately made the owner of her parents’ home in Sri Lanka instead of receiving it through inheritance at their death, was a major point of discord between the young spouses and continued to give rise to important conflict upon their return to Canada.
63The mother testified that shortly after returning to Canada, she already wanted to separate. She stated that she felt without a voice and was required to do as the father said. She alleged that he became physically violent towards her. Regardless of whether there was physical violence in the home, in the winter of 2000, less than a year after she had arrived in Canada, the mother left the matrimonial home to go to a women’s shelter. Because there was no place in Ottawa for her, she was placed in a shelter in Cornwall. The mother testified that she was miserable there as she felt no affinity with the other women residing in the shelter and saw no future for herself; having no money, no work and no other place to stay. In light of the father’s contrition and promise to change, she eventually reconciled with him and returned to their shared home. I accept her testimony in that regard.
64The mother admitted that the father was never physically abusive towards her after this. However, she stated that the verbal and emotional abuse more than made up for the lack of any physical abuse. I accept that from the mother’s perspective, her relationship with the father was toxic, unhealthy and provided her with very little, if any, joy or happiness. I accept that she felt trapped in this marriage and that she felt compelled to remain in it for U.L.’s sole benefit. Until she started working in the fall of 2014 (that is, 15 years after she arrived in Canada), the mother had no money of her own and no community that she could have turned to for help. I accept her testimony to the effect that she was the subject of emotional and verbal abuse at the hands of the father, such as name calling, yelling and being constantly put down. I accept that the father had complete control over the family’s finances and that the mother’s contact with her family members, who all lived outside of Canada, was also limited and monitored by the father.
65The mother’s testimony in that regard is supported by historical records from the CAS who became involved with this family in 2012. Following the loss of a man who was very important and influential for the father (and whom the mother alleged the father really wanted to impress), the father’s intimidating and emotionally abusive behavior intensified. This had a significant impact on her mental health which deteriorated to the point of her being hospitalized for five days in 2012 due to a diagnosis of depression. As part of her treatment, the mother started to see a counsellor. In the context of her sessions with that counsellor, she opened up about what was going on at home. The mother’s disclosure led the counsellor to alert the CAS. The mother stated, and her testimony in that regard is supported by the Society’s records, that she was very fearful of involving the CAS as she feared the father would use her history of depression against her and that U.L. could be apprehended.
66It is not necessary for me to come to definite conclusions as to whether all the mother’s reports of abuse against the father, in the context of the CAS involvement, were true or not. I find as a fact that the mother’s account of the father’s controlling, intimidating and emotionally abusive behaviour towards her and U.L. is consistent with the innumerable examples of similar behaviour reported by her and U.L. to various third parties, including several witnesses who appeared before me in this trial, throughout the years that followed.
67It is also important to note that none of the CAS’ many investigations with this family were prompted by the mother’s own complaints to it. Every time the CAS became involved, it was as a result of a report made by a health professional involved with the family or by U.L.’s school.
68During the mother’s interview with a Society worker back in 2012, the possibility of her leaving the father and going to a shelter with U.L. was contemplated and discussed. However, after the worker met with the father, who denied all allegations of abuse, the father immediately retained counsel who quickly advised the CAS that all consents, releases, authorizations or directions that might have been signed by the mother during her interview with the worker were revoked. The mother testified that during her meeting with this lawyer, the couple was told that their chances of avoiding more intrusive CAS intervention would be increased if they showed a united front. She stated, and I believe her, that the father played on her vulnerability to make her believe the CAS would use her history of mental health issues to apprehend U.L. or put him in his father’s sole care. The mother stated that she was afraid, had no money and felt utterly powerless. As a result, she stopped working with and/or cooperating with the CAS.
69Although the CAS concluded that some of the allegations were verified, there were several risk reducing factors within the family including a lack of previous CAS or police involvement, U.L. being visible in the community, and the parents connecting to and engaging with community services. As a result, the file was closed.
70The CAS intervention and the mother’s disclosure in that context made matters worst for her at home. I accept the mother’s testimony that she was blamed for the CAS involvement and that the parties’ already toxic relationship deteriorated even more after 2012.
71I pause at this point to make the following comments. I find that the mother’s allegations to the effect that she was the victim of emotional and verbal abuse is corroborated by much of the evidence before me in this trial. Many of the professionals who have been involved with this family have expressed concerns about family violence in the home and have tried to assist and support the mother in leaving this relationship with U.L. The counsellor that the mother began seeing after she was hospitalized in 2012 felt compelled to report her concerns to the CAS. Ms. Laura Bowerman, the Society worker who interviewed the parties and U.L. in 2012, verified allegations of physical punishment towards U.L. and felt it necessary to discuss safety planning with the mother before closing her file. In 2017, Ms. Stacey Segal, the family therapist retained to treat U.L.’s severe symptoms of anxiety and stress, felt compelled to make a report to the CAS after her individual intake meetings with each family member, and expressed that she was very worried about the mother and the child. When the CAS became involved with the family in 2017, it supported the mother’s plan to leave the relationship (while the father was away) with U.L.
72In addition, many individuals who testified in this trial or who were interviewed in the context of Dr. Weinberger’s assessment have experienced first-hand the father’s intimidating and abusive behaviour and have readily shared this with Dr. Weinberger or with this Court.
73Ms. Kamani Weerasinghe, the mother’s sister, was one of the mother’s witnesses in this trial. She testified to the events which transpired during the two weeks that she and her husband travelled to Canada in 2014 to visit with her sister’s family. She stated that from the very outset, the father was not very welcoming to her and her husband. She explained that he never asked how they were doing or how their trip was, and as soon as they landed, the father started talking about himself, his community and the many important people he knew and was connected to. Ms. Weerasinghe testified that the father was very controlling of the whole family, including themselves, throughout their visit and insisted on deciding every aspect of their stay.
74She related in much details how, during their visit to the father’s temple, the father had started to demean her husband’s religion which led to an altercation between the two men. The dispute continued during the ride back home and degenerated even more thereafter. The father’s angry and demeaning behaviour throughout, which occurred in the presence of U.L., was such that Ms. Weerasinghe and her husband felt it would be better for all if they moved into a hotel room that day. For the rest of their visit in Canada, they were only able to see the mother and U.L. when the father was at work.
75Ms. Weerasinghe also testified about the very noticeable change in U.L.’s demeanour when in the presence of his father. She described a phone call that they received from the father when the mother and U.L. were in their hotel room and during which the father could be heard threatening the mother that he would call the police and have her sister charged with kidnapping if they did not return home immediately. She stated that she was so afraid for her sister that day that she insisted on the mother calling her that night from the home to confirm that she and U.L. were safe. I found Ms. Weerasinghe’s testimony very credible. Further, her version of what occurred during that trip was not disputed by the father who did not feel the need to correct any of her testimony in his reply evidence.
76Ms. Sandy Pyett, a child protection worker with the CAS, also felt intimidated and threatened by the father during some of her encounters with him. Ms. Pyett was involved with the family in 2018, after this litigation was commenced. At the request of the father, she agreed to facilitate a court-ordered access visit between the father and U.L. by driving U.L. to a local sports center where the father was supposed to pick him up. When the father arrived at the sports center, U.L. steadfastly refused to leave with him. After having deployed quite some effort in trying to convince U.L. to leave with his father without success, Ms. Pyett told the father that it was enough and that she would be leaving with the child.
77According to Ms. Pyett, the father became quite angry at this turn of events and followed them to the parking lot, all the while yelling at her and challenging her decision to leave with U.L. The father created such a commotion that a stranger, who was parked a couple cars away, felt compelled to intervene and asked the father to leave. This did not deter the father. According to Ms. Pyett, he proceeded to take his phone out of his jacket and was about to take a picture of her license plate when a City employee, who became aware of the scene, provided assistance which allowed Ms. Pyett to finally leave with U.L. (who was present throughout the whole scene).
78During her interview with Dr. Weinberger, Ms. Heather Graham, the school principal at U.L.’s school, expressed that the father had been a force to contend with. She explained that he was relentless and frustrating to her with his questions and his persistent pressuring. She added that the father shared personal emails about the family conflict with her and that she had been forced to ask him to stop, and that she had been forced to set very clear guidelines with him in that regard. She reported that the father was exhausting and frustrating for everyone at the school. This is confirmed by an email exchange between the parents and Ms. Graham in June 2018 in relation to U.L.’s graduation, where Ms. Graham states “Dad will only attend the Graduation at AYJ and not come to JYES today […]. I will not negotiate this with you Visita. Please do not involve me or any staff members further in your discussions.”
79In his report, Dr. Weinberger confirms that his own experience with the father aligns with that of others who he had interviewed in the context of his assessment. He reports the words of Ms. Christine Harrison, a team manager of the VAW and Counselling Services at the Western Ottawa Community Resource Center, in an email to the father in May 2018 in which she tells him “I have clearly stated that you will need to make an appointment with me to discuss any concerns. I am clearly telling you now to stop contacting me via email/telephone unless you need to meet to discuss. Please make note of this email.”
80All the above, coupled with U.L.’s own complaints of feeling harassed by his father, brought Dr. Weinberger to the conclusion that the mother’s and U.L.’s complaints could not be dismissed given the emerging picture of the father’s behaviour style. In an addendum to his report, Dr. Weinberger noted that the father had sent him 14 emails over three days after he notified him that he would not be accepting further submissions, and that this behaviour only gave credence to what others had complained about; that they could feel overwhelmed in that the father pushes too hard until he gets his way because he is so taken by the rightness of his view that he has difficulty accepting less.
81It is important for me to state my findings with respect to all of the above, because I am of the view that the mother’s experience of verbal and emotional abuse at the hands of the father has had a significant impact on the decisions that she has made both before and after the parties’ separation and on her ability and willingness to foster and promote U.L.’s relationship with his father post-separation. In other words, although it does not excuse her behaviour, which at times I find adversely affected U.L.’s perception of his father and increased U.L.’s sense of entitlement to make his own decisions, it provides a context to her actions and gives a much different colour to the many of the events that occurred after she finally left the marriage. More especially, I accept that at times, she made questionable decisions because she felt completely powerless in the face of her son’s mounting distress and the court’s continued efforts to impose access (such as bringing U.L. to the police station to make his own complaint or suggesting to him that he would end up in Society care if he did not comply).
U.L.’s relationship with his father before the separation
82From in or about 2012, when U.L. was six years old and in the years that followed, the mother testified that U.L. increasingly complained to her about his father’s behaviour and actions. She indicated that U.L.’s complaints became more frequent after she started working in 2014, and U.L. was left more often in the care of his father.
83U.L.’s allegations to his mother of mistreatment by his father prior to the parties’ separation were many. For the purpose of this trial, U.L. was interviewed by Ms. Victoria Norgaard, a clinical investigator with the OCL. During this trial, Ms. Norgaard testified as to what U.L. had conveyed to her during her interviews with him. Ms. Norgaard’s evidence was admitted on consent of all parties, but only to establish U.L.’s state of mind, not for the truth of the information he relayed to her.
84U.L. had the following to say about his relationship with his father prior to his parents’ separation. He reported that his father always yelled at his mother and hurt him emotionally. U.L. recalled that his father yelled at his mother during conflict about money or about parenting (for instance his karate lessons). He recalled that his father made up bad stories and accusations about him and threatened to tell them to neighbours, friends and school officials.
85U.L. believed his father hated when he was with his mother because whenever he did things with her, his father would disrupt it. He reported his father telling him not to hug or kiss his mother. He reported that his father ridiculed him for calling his mother “Amma”, which is a term of endearment for a mother in his family language and culture, and for seeking comfort from his mother. He said that his father threatened to tell people that he slept with his mother and accused him and his mother to have sex together.
86U.L. described that when he was a child, his father forced him to sit on his lap or get into his bed. He recalled being forced to massage his father, in his bed, despite U.L.’s refusals (although U.L. confirmed that he did not feel his father’s interest was sexual). U.L. recalled, at times, being forcefully removed from his mother’s bed by his father in the middle of the night and felt his father may have drugged both he and his mother because on some occasions neither of them woke up when it happened.
87U.L. advised that his father forced him to spend time with people and do things he did not like. For example, he stated that he was forced to do things with another child named Yevin to “suck up to his (Yevin’s) parents” who organized dances for his father’s events. He complained about his father taking him to political campaigns and other events organized by him or his friends and described how once his father dragged him onstage and forcefully kept him there, gripping his wrist and hurting him.
88U.L. reported that his father blamed him and his mother for various things, and often said bad things to him about his mother, her family and her friends. He said that he was not allowed to speak with his mother’s family but that he was forced to speak with his father’s family. U.L. reported that his father hurt him by calling him names, shaming and threatening him.
89U.L. said that just before his parents separated, his father threatened to put his mother on the street and to put him in foster care and that “he would not give me a penny”. At other times, his father threatened to take him to Sri Lanka for good so he would never see his mother again. U.L. stated that his father would threaten him to be silent about negative experiences he or his mother had had with him. He recalled that once his father stated “you saw nothing and heard nothing” while waving a knife around in his hand. Alternatively, he said that his father would give him money to keep him silent.
90U.L. did not only allege that his father abused him emotional and psychological, he also alleged that his father physically abused him. He stated that his father hit him with “hands, wire, belts and other objects like kitchen utensils”. He said that his father bit him, slapped him and dug fingernails into him. He alleged that his father hung him upside down and threatened to drop him on the tiles many times. U.L. recalled that if he could get to his mother, she would protect him from his father, but that his mother typically was not home when his father hurt him. U.L. stated that his mother always believed his allegations but asked him not to dwell on it. He believed his mother knew about the abuse he was experiencing in the relationship with his father for five to six years before his parents separated. On several occasions, he said that he wanted to call the police but that his mother did not want that.
91The mother’s account of U.L.’s relationship with his father prior to the parties’ separation pretty much mirrored U.L.’s own account. She testified that as U.L. grew up, the verbal and emotional abuse she was enduring at the hands of the father was also increasingly directed at U.L. She also testified that, while U.L. was reporting allegations of physical abuse by his father to her, she was never present when the alleged events took place. As such, she could not verify that those events actually occurred.
92In her testimony, the mother talked about the events which unfolded in the context of a school project that U.L. was required to complete in March 2017. The mother had helped U.L. brainstorm around what his project would look like, and U.L. had chosen various pictures of himself in various contexts. Unfortunately, none of those pictures had his father in it. When the father arrived home, he made no comment on the project. However, that night, he became very angry and demanded that U.L. change his project to include pictures of him as well. While the mother tried to explain to the father that the goal of the project was not to present his family but rather to use pictures which promoted the use of complicated words within the description, the father would have none of it. He continued to berate U.L. for his lack of consideration of his father and followed him around the house, blaming him, scolding him and demanding that he change his project. At one point, the mother decided it was enough and sent the project through the school’s website against the father’s objection.
93By the mother’s account, the father’s rant about U.L.’s project continued well into the night. The next day, she had an appointment with her counsellor and was forced to leave U.L. in the care of his father before school. When she returned home at the end of the day, U.L. told her that his father had made him change his project that very morning before going to school. The father went as far as writing a note in U.L.’s agenda, including yet more pictures of him and his son to prove his point that he had also had a positive influence in U.L.’s life. The father’s behaviour that day was so emotionally harmful to U.L. that he had “an accident” that day as school and was unable to deliver his presentation correctly due to the late change.
94In his testimony, the father painted a very different picture of his relationship with U.L. prior to separation. He stated that he and U.L. shared a close and loving relationship. He said that he was mainly responsible to take U.L. to the dentist, the eye doctor or Dr. Rabie for regular checkups and flu shots. He said that he would often bring U.L. to play dates, to the park or to museums, and that U.L. loved to spend time with him during those activities. He indicated that he and U.L. shared a passion for robotics, and that he would often bring toys and projects at home that he and U.L. would build together. They also shared a common interest for chess which they played and practiced together regularly. Contrary to what was alleged by U.L., the father says that U.L. very much enjoyed attending public events with him and meeting important people and dignitaries that he knew and who attended those events.
95Throughout the trial, it was the father’s position that U.L.’s complaints and allegations of verbal, emotional or physical abuse by him before the parties’ separation were pure fabrication; stories of abuse that had been manufactured and actively ingrained in his brain by his mother’s active and purposeful efforts to poison his relationship with him. To support his position in that regard, the father points to the marked change in the allegations made by U.L. against him to Ms. Norgaard for the purpose of this trial, as compared to earlier reports of abuse he made to Society workers, counsellors and to Dr. Weinberger, which in his view, were far less elaborate and certainly not as detailed.
96Further, the father points to striking similarities in U.L.’s description of events and alleged abuse found in his typed notes to his lawyer as well as words and phrases that he used to describe those events, with words and phrases used by his mother to describe those same events in her emails and affidavits. The father submits that those similarities, which have also been noted by Ms. Norgaard, support a finding that U.L.’s reports have been significantly influenced by the mother, and as a result, are unreliable and not credible.
97The father also submits that the CAS interventions with this family reveals significant flaws in its 2012 investigation process, based on misinformation provided by the mother in which led to a mishandling of the file during the course of its 2017 investigation based on a preconceived assumption that abuse was verified in 2012. The father argues that this preconceived and incorrect assumption led to actions on the part of the CAS that facilitated and encouraged the mother’s alienating behaviours and played a significant role in empowering U.L. to reject his father.
98While I agree that there are, indeed, striking similarities between some of the terms and expressions used by U.L. and his mother to describe their experience with the father or of events related to him, and which indicate some level of mutual influence, I find that this cannot possibly be explained by maternal influence alone. There are many reasons that support this conclusion.
99Given their common experience with the father’s personality and behaviour, it is not surprising that from a very young age, U.L. became very aligned with his mother who, by her own admission, has always been U.L.’s preferred parent. It is not contested that U.L. shares a very strong emotional bond with his mother. As years went by, U.L. became old enough to understand that what was going on at home was not normal or acceptable, and as his anger towards his father grew, U.L. and his mother became “a team”.
100The mother did not deny that for years before the parties separated, U.L. and his mother confided in each other and sought comfort from each other as a mean to endure and sometimes escape the father’s harsh treatment. It is not denied that mother and son often slept together (something which the mother explains is very common in their culture), and that it caused significant conflict between them and the father. I find that U.L.’s and the mother’s stories started to align well before the parties separated, not as a result of influence only, but also as a result of their common experience with the father.
101As stated before, there is no question that U.L. has been influenced by his mother and that his own view and feelings about his father have been reinforced by the mother’s own views and feelings towards him. But in those circumstances, how could they not? He was fully aware of, an active participant in, and an integral part of the mother’s plan to leave the relationship in May 2017. I share Dr. Weinberger’s conclusion that “… given how expressive U.L. is and how much interaction and discussion there is between mother and child, and how trusting and bonded U.L. is to his mother including the sleeping aspect, it would not be far-fetched in my view to suggest … that it is difficult to see how the mother’s own strongly held views about the father would be fully shielded from the child and that rather than challenging U.L. to consider an alternate view or other ways to behave with his father she may advertently or inadvertently be abetting the conflict.”
102By everyone’s account, U.L. is well spoken, he has an incredible vocabulary and there is a lot of indicators of his having a very high IQ. This was readily apparent during my own meeting with him. It was Ms. Norgaard’s evidence, which I accept, that although there were indicators of some level of influence in U.L.’s narrative during her interviews with him, there were also many very authentic moments which gave U.L.’s story much credibility. In particular, Ms. Norgaard described in detail many moments when U.L. was expressing his emotions and the physical symptoms he experienced while being exposed to his parents’ conflict or his father’s behaviour, which she felt were very authentic. As she stated, in those moments when U.L.’s emotional side was revealed, “the language was his, the voice was his”.
103While I agree that U.L.’s views and feelings about his father were inevitably influenced by mother (including in relation to events which occurred before the parties’ separation), I find that U.L.’s expressed views, feelings and experiences with his father are also his own. In addition, while I accept that with the passage of time U.L.’s description of events related to his father became more elaborate and detailed, this does not lead me to give it any less weight. On the contrary, I am of the view that as U.L.’s need to be heard and believed by the various people involved in his life amplified, so did his ability and willingness to share his experiences with his father in a more outspoken, unrestricted and detailed manner.
104I also do not agree with the father’s contention that U.L.’s account of his relationship with his father has significantly changed since this litigation started. Although his account of relevant events has expanded and become more specific, the nature of his complaints towards his father has not changed. When he met his counsellor, Ms. Stacey Segal, for the first time in March 2017 (privately), his complaints about his father in relation to his recent school project and his overall behaviour towards him, was the same as it is today (his father was not nice to him, he called him mean names, he accused him of breaking up the family, he forced him to attend public events with him “just to look good”, etc.).
105When he was privately interviewed by Ms. Breton, the child protection worker who became involved with this family following Ms. Segal’s report in March 2017, he reported most of the same grievances and disclosed incidents where his father had used physical force against him (biting, slapping), although he stated that this had stopped about a year ago. He told her that his father was mean, that he was jealous of his relationship with his mother, that he forced him to go to places with him and to do things he did not want to do (like soccer), that his dad threatened to say bad things about him to his friends, that he does not listen to him, and that he rants all the time, for hours, including about how bad his mother is and how he (the father) is the best. He said that his father was nice to everybody else, except for him and his mother. He also reported that his parents fought all the time and yelled at each other constantly.
106Based on all the information gathered through her interviews with both parents and U.L., Ms. Breton concluded that there was a risk of emotional harm as a result of the father’s actions due to the events surrounding U.L.’s school project (the father “forcing U.L. to change his project for school and would not allow him to go to bed until he did”). Ms. Breton came to the additional conclusion that U.L. was at risk of emotional harm due to being present and witnessing his parents’ arguing, swearing and yelling at each other, and noted that U.L. had stated that it was mostly his father initiating it.
U.L.’s experience of his father post-separation
107During his interviews with Dr. Weinberger in 2018, U.L.’s complaints against his father remained the same, although by then, they had become even more forceful and unequivocal as a result of his experience with him post-separation. To his already very lengthy list of grievances, he added that his father force fed him, hung him by his feet and threatened to drop him on the floor tiles and forced him to do things he did not want to do (like play golf or go to Earl of March school). By then, and even though U.L. had had only limited, although unsupervised, access with his father, his loathing of his father was so strong that he took it upon himself to publicly humiliate him during the 2018 Vesak celebration, by telling the audience that he hated his father and that he would rather die than to be with him.
108U.L.’s extraordinary stance towards his father was also noted by Ms. Monica Meyer, a counsellor retained by the father in the Spring of 2018 to help improve his relationship with U.L. Ms. Meyer had five individual sessions with the father and six joint sessions with both father and son (although invited to participate as well, the mother did not). Ms. Meyer attested to the level of aggressiveness demonstrated by U.L. during their joint sessions with her. She confirmed that he did not want to be with his father, and that U.L. had hit him, hit her door, thrown his watch at his father, and been a “reluctant participant” in the sessions. In her testimony, Ms. Meyer reported U.L.’s many complaints about his father, which were the same as those expressed by him to the many others who have been involved with this family and who have been identified above.
109About his experiences with his father following his parents’ separation, U.L. shared with Ms. Norgaard the way his father had behaved at his graduation (in June 2018) which had been distressing and embarrassing to him. He claimed that his father had loudly claimed credit when U.L. had received a technology award, and that his father had interfered with his attempts to deliver to his mother the letter of appreciation that he had prepared for her. In her own testimony, the mother corroborated U.L.’s version of these events. She explained that despite U.L.’s strong objections to his father being present at his grade 6 graduation, she had insisted that he was his father and that it was important for him to be there. However, the father’s presence and behaviour, throughout this celebration, completely ruined this event for U.L. The mother added that the father had refused to return U.L.’s award to her and that she had had to threaten to report this to the principal for the father to give it back. In his reply evidence, the father denied any wrongdoing during U.L.’s graduation, stated the whole ceremony was happy and conflict-free and he dismissed all of the mother’s allegations as pure fabrication.
110U.L. also reported that his father had “stalked and harassed” him and his mother after the parties’ separation by showing up where he and his mother were in public places (such as the Walmart, Bulk Barns, Ikea and other stores). U.L. recalled an incident where his father showed up at a store where he and his mother were shopping, at and proceeded to follow them to their car while shouting at them in Singhalese. The mother also testified about many other post-separation “coincidental” encounters, including one which occurred outside a grocery store in June 2018. The mother states that when the father saw U.L., he approached him and started to criticize and rant at him. At one point, U.L. started to yell to all who wanted to hear that he was being harassed. When his efforts to distance himself from his father did not work, U.L. ran away to the mother’s car pleading with her to call the police. The mother explained that instead of leaving, the father continued to yell at them and followed them with his car, ultimately blocking her car with his own.
111The mother’s account of these many encounters were detailed. They were fully corroborated by U.L.’s own account of those encounters to Ms. Norgaard. When confronted with the mother’s testimony in that regard, the father’s response was that those random encounters in public places were purely coincidental, and that most of the mother’s allegations were pure fiction: they simply did not happen.
112Regrettably, one of U.L.’s distinct complaints about his father’s conduct post-separation was that he harassed them in many various ways, including by showing up at various places where he and his mother were. U.L.’s negative experiences with his father, post-separation, were so intense, that he came to believe that his father had bought the judge and Dr. Goldstein, might try to poison him and might even have intentionally tried to cause his death in the past.
113In the end, despite the added details and some discrepancies, U.L.’s complaints against his father, which have been expressed by him long before his parents separated, have been ongoing, have mainly remained the same, and have only increased in intensity with time. When it comes to alleged physical abuse, U.L.’s version of abuse at the hands of his father did not falter, but his description of the type of abuse suffered expanded significantly. By the time he provided his version of the facts to Ms. Norgaard, he was reporting being beaten by his father with kitchen utensils, by slapping him and by digging his fingernails into him.
114In the end, it is not necessary for me to come to definite conclusions about each and every allegation made by U.L. against his father. The evidence, as a whole, fully supports the conclusion that U.L.’s relationship with his father before his parents’ separation was already significantly damaged, and the various events that occurred post-separation, including this highly conflictual litigation and the involvement of countless professionals in U.L.’s life (including counsellors, Society workers, assessors, therapists, police officers, lawyers, judges) only served to increase his anger towards his father and to cause further deterioration of their relationship.
Parenting Arrangements
Legal framework
115In making a custody or access order with regards to a child, I am required by virtue of s. 16 of the Divorce Act, 1985, c. 3 (2nd Supp.) to consider the following legal principles:
Order for custody
16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
Joint custody or access
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
Access
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Past conduct
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
116Ontario courts determining custody and access matters under the Divorce Act also refer to the criteria set out in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 to define the concept of a child’s best interests. I will not repeat them here, although I have considered them in arriving at my decision on parenting issues.
Decision-making authority
117Given my findings above, I conclude that it is in U.L.’s best interests that his mother continues to make all decisions affecting his health, education, religion and overall well-being. I find that the mother was U.L.’s primary caregiver during the parties’ marriage, and that she has fulfilled that role well. She is very engaged in all matters pertaining to U.L.’s education and health, and she has accessed relevant and necessary services for him both before and after the parties’ separation. The evidence before me makes it clear that she has U.L.’s best interests at heart, and that she has put his interest ahead of her own for a very long time, often to the detriment of her own well-being and mental health.
118I accept that the mother thought about separating from the father for many years, but never had the courage or the means, financial or otherwise, to do so. I accept that, at first, she remained in this relationship because she thought this was best for U.L. As she realized that U.L.’s exposure to the parental conflict and the father’s abuse was having a serious impact on his overall health, including his mental health, she was unable to leave because she was paralyzed with fear: fear that her mental health issues would be used against her; fear that the father would make good on his threat to separate her from U.L. if she left; fear that U.L. would be apprehended from her care by the CAS; fear that she and U.L. would be left to live in poverty and that she would not be able to support him. I accept her testimony that she ultimately decided to leave in May 2017 because what was happening at home was worst for U.L. than the possibility of any of her other fears becoming realities. I do not question her ability to care and protect U.L., and to ensure that his needs are met.
119This is not a case where joint custody can be awarded. The evidence before me makes it clear that U.L. was exposed to significant conflict between his parents before and after their separation. Concerns related to this were verified by the CAS in 2017 and again in 2018. U.L. reported being exposed to his parents’ ongoing disputes to countless professionals who have been involved with this family. As explained in detail above, almost every single post-separation encounter between the parties in the presence of U.L. has been explosive and resulted in significant conflict between the parties, generally in U.L.’s presence. This has had a devastating effect on U.L.’s emotional and psychological health.
120The history of this litigation is a testament to these parties’ complete inability to cooperate, communicate or even be in each other’s presence, let alone having to make joint decisions on important matters related to U.L.
Parenting time
121I share Dr. Weinberger’s view that the damage to the relationship between U.L. and his father is so severe that, for there to have been any hope of success, all three members of this family would have had to make significant progress via the individual counselling efforts recommended by him before access could begin. This was to be the foundation upon which the reunification and reconstructive work could have been built. Unfortunately, no progress has been achieved despite all the efforts deployed by this Court and by the various professionals who have been involved with this family over the past two years.
122Despite the father’s full compliance (in terms of attendance) with Dr. Weinberger’s recommendations about much needed counselling for him, the father has gained no self-awareness or insight into how he contributed to his son’s estrangement from him. His total dismissal of U.L.’s nine-page long list of grievances, complaints and allegations against him as pure fabrication is clear evidence of his absolute failure to take responsibility for anything that happened in this family. Sadly, U.L. is aware that his father believes that his complaints against him are complete lies.
123While I find that the mother has, indeed, gained some insight into how her own behaviour has contributed to U.L.’s very negative views and feelings about his father, it is clear that there can be no quick or lasting changes in her behavior without years of counselling. It is unreasonable to expect that such lasting changes will occur overnight. In my view, it will take years of therapy for her to be able to support and promote, even to some degree, U.L.’s healing and rehabilitation process as it relates to his relationship with his father.
124As for U.L., I conclude with humility and sadness that our efforts throughout this judicial process have only caused a further deterioration of his already damaged relationship with his father and have failed to provide him with anything other than more pain, stress and emotional harm. Despite everyone’s best and genuine efforts, U.L. has come to believe that at 12-13 years of age, he can decide and take charge. His deeply held belief of not being heard by his father or by anyone else in this judicial process, a belief that even a judicial interview and the appointment of his own legal counsel could not appease, has led to him feeling justified to refuse to go on court-ordered access visits, to terminate his counselling sessions with Dr. Goldstein (which had been agreed upon by both his parents), and to go as far as to write to me directly (with the assistance of school staff) to make his wishes and preferences on those issues crystal clear.
125Over the past few years, U.L. has been in counselling with at least five different therapists and he has been interviewed by Dr. Weinberger as well as by several child protection workers and police officers, by his lawyer, by Dr. Rabie, by Ms. Norgaard and by Ms. Crowley (to name only those). His every word and his every move have been the subject of intense scrutiny by assessors, investigators, lawyers and the court. He has made it clear that he will not voluntarily engage in any other form of assessment or therapeutic process, and that he wants to live the rest of his childhood (and life) in peace.
126In those circumstances, any further efforts aimed at supporting a healing process through court-ordered therapeutic intervention is not only deemed to fail, it is sure to cause him significant emotional, psychological and even possibly physical harm.
127Access between U.L. and his father, without the support of a solid therapeutic foundation, is also doomed. U.L. has clearly, consistently and emphatically advised that he wants to have no contact with his father and wants his father to stop using the court system to pressure him and his mother. He wants a “restraining order with maximum distance possible, to stop him from coming to my school and other places I go”. Alternatively, he would like help for him and his mother to “have a new identity and disappear”.
128There is also a significant risk that forcing access on U.L. may cause him serious physical harm. U.L. has ran away from visits with his father in the past. His anxiety around his contact with his father is so severe that he gets physically ill at the thought of seeing him. In his interview with Ms. Norgaard, he has advised that if he is required to have contact with his father, he will commit suicide. This should not be taken as an empty threat, as his father suggests. U.L. has made the same threat in the past, and the evidence before me confirms that he had a plan.
129Considering all the above, I conclude that it is not in U.L.’s best interest to impose access between him and his father, not even a minimal amount of contact. I do not come to this conclusion lightly, and in arriving at this decision, I have considered Blishen J.’s thorough and thoughtful decision in Jennings v. Garrett (2004), 5 R.F.L. (6th) 319 (Ont. Sup. Ct.).
130For those reasons, an order will issue that any access between U.L. and his father will be left at the sole discretion of the mother, taking into consideration U.L.’s wishes and preferences. In addition, in light of the father’s behaviour style (ranting, disorganized thinking, excessive persistence and harassing behavior), the rather negative reports by U.L.’s school and other health professionals of their experiences with the father, and U.L.’s own expressed feeling of being harassed by his father, I am of the view that it is appropriate for an order to issue precluding the father from making inquiries or to seek information about U.L.’s health, education and overall welfare directly from those professionals.
131Instead, an order will issue requiring the mother to provide the father with detailed updates, at least four times per year, about U.L.’s health, educational progress, important events and overall well-being (as per the detailed order below).
Property in Sri Lanka
132As a distinct issue, the father sought an order allowing him to make all major final decisions with respect to U.L.’s interest in real property located in Sri Lanka.
133The father’s mother passed away in Sri Lanka (where she lived) on February 8, 2010 without a Will. Her estate included part of the property located at 1-73 Elpitiya Road, Ambalangoda, Sri Lanka (“the Elpitiya property”). There is ongoing litigation between the father and his elder brother in Sri Lanka which involves a dispute as to what the division of their mother’s estate should be, and in particular, in relation to this property. The litigation has been ongoing for almost 10 years now.
134The father explained that on May 29, 2015, on the advice of his counsel in Sri Lanka, he executed a deed assigning his inheritance rights in relation to the Elpitiya property in favour of U.L., reserving a life interest in his favour. This was registered at the Land Registry Office in Kalutara notwithstanding the fact that the Estate has not yet been settled, and therefore, the property (or part thereof) has not yet been transferred to the father’s name. It appears that the deed to U.L. was simply an assignment of rights to gain an advantage in the ongoing litigation and to solidify his legal position in respect to that property, which he ultimately wants to leave to U.L. The father has appointed an attorney in Sri Lanka to deal with these matters, which also raise issues related to an adjacent road and adjoining parcel owned by the father’s older brother, as well as a tax assessment process and potential tax liabilities.
135Up until recently, the mother was not aware that U.L. had any interest in any property located in Sri Lanka. She found out about U.L.’s contingent interest in that property by inadvertence, after correspondence by Sri Lankan tax authorities addressed to U.L. was erroneously sent to her mother’s home in Sri Lanka. According to that correspondence, U.L. was required to pay some outstanding tax or other liability.
136The mother wants to retain sole and financial decision-making authority in relation to this property so that it can be expeditiously transferred back to the Estate. The mother takes the position that the father is simply using U.L. to gain a personal financial benefit from this property and that U.L., at 13, should not be caught in the middle of litigation involving his paternal family in Sri Lanka.
137Despite the father’s failure to disclose or discuss any of this with the mother, the father’s evidence, which on this point I accept, is that he wants to pursue the litigation in Sri Lanka to ensure that his mother’s property is ultimately passed on to U.L. He wants to be granted final decision-making authority, as U.L.’s Trustee, so as to preserve, improve and protect U.L.’s interest in that property, which can later be available to him, as an adult, for his personal use, as an investment or as a source of capital to pay for his education or anything else he might be in need of. The father consents to an order requiring him to hold U.L. harmless of any past, present or future liability with regards to this property.
138In light of this, I see no reason to deny the father this opportunity to provide for U.L.’s future, and an order shall issue accordingly.
Final Orders on Consent
139Before the trial proceeded, the parties were able to resolve the issues of equalization, spousal support and child support (in the event that U.L. remained primarily in the care of his mother). The provisions consented to by the parties are included in my detailed order below.
140The parties also consented to a divorce order being made and having been provided with all relevant evidence in that regard, a divorce shall issue.
Costs
141The respondent mother is the successful party in this case. If the parties are unable to agree on costs, I will accept their written submissions in accordance with the following timetable:
a. The mother shall provide her written submissions by January 31, 2020;
b. The father shall provide his written submissions by February 28, 2020;
c. The mother shall have until March 13, 2020, to provide a brief reply (if she so chooses).
142Costs submissions shall be limited to 15 pages, not including Offers to Settle and Bills of Costs.
Orders
143The following final order shall issue:
- The parties who were married in London, England, on February 2, 1998, shall be divorced and the divorce takes effect 31 days after the date of this order.
Parenting
The respondent mother shall have sole custody of the child.
The child shall have his primary residence with the respondent mother.
Any access between the child and the applicant father shall be left to the sole discretion of the respondent mother, taking into consideration the child’s wishes and preferences.
The applicant father shall be precluded from making inquiries or seeking information directly from the child’s school, teachers, health professionals, counsellors, treating physicians, sports coaches or from any other such professional involved in the child’s health, education, religion, extracurricular activities and overall welfare, unless these professionals themselves initiate contact with the applicant for the purpose of seeking or sharing information.
The respondent mother shall provide the applicant father with detailed updates related to the child’s health, education, extracurricular activities, important events and accomplishments and overall well-being at least four times per year and no later than the following dates:
a. December 21
b. March 21
c. June 21
d. September 21
All such updates shall include pictures, available report cards, recent medical or health related opinion reports (not records), if any, copies of important school projects or academic prizes or awards, as well as any other documents or information related to important and major events occurring in the child’s life. Updates can be sent by email or by mail.
The applicant father shall have final decision-making authority, as the child’s Guardian and Trustee, in relation to the child’s interest in the property located at 1-73 Elpitiya Road, Ambalangoda, Sri Lanka.
The applicant father shall provide the respondent mother, by email, with regular updates as to the ongoing estate litigation in relation to the above property and, if and when title to the property is registered in the child’s name, of the ongoing management, preservation and maintenance of the child’s interest in that property.
Child Support
The applicant father shall pay to the respondent mother child support in the amount of $800 per month (for a period of five years) for the support of the child, based on the 2018 employment income of the applicant of $61,783. This sum exceeds the amount payable under the guidelines ($574 per month). It will commence on September 1, 2019 and be payable on the first day of each month thereafter.
The applicant father will pay to the respondent the sum of $2000 to compensate her for any shortfall in the payments she has received for section 7 expenses she incurred from the date of separation to the date of her acceptance of the father’s offer and/or any shortfall in table child support. The applicant shall be credited with the sum of $2452 paid in September 2019 to the respondent against any sums owing in this paragraph in the paragraph immediately above.
The parties’ respective contributions to the child support may be reviewed and re-determined annually based on the Canadian income(s) available to each of them.
Commencing in 2019, each party will annually file his/her income tax return by no later than April 30 and the parties will exchange complete copies of their returns, including all schedules and attachments and the notices of assessment issued by the Canada revenue agency by no later than June 15. At that time, they will also exchange documentation confirming their year-to-date incomes from all Canadian sources and their estimated incomes from all sources to the end of the applicable calendar year. Such information can be exchanged electronically via email.
The child support payments set out in paragraph 10 above are not reviewable for a period of five years. Thereafter, future reviews will be based only on line 150 of the applicant father’s annual Canadian income tax returns.
Child support and for the child when he ceases to be a “child” as defined in the Divorce Act.
The parties will share in proportion to their incomes (66.6% payable by the applicant father and 33.4% payable by the respondent mother based on an imputed income to her of $31,000), the following reasonable child related expenses:
a. The reasonable cost of medication prescribed for the child by his doctor, if it (or any portion thereof) is not eligible for reimbursement under any group insurance plan through which the child has coverage;
b. Any reasonable dental or orthodontic expense incurred for the child’s benefit, if it (or any portion thereof) is not eligible for reimbursement under any group insurance plan through which the child has coverage;
c. Any reasonable health related expenses incurred for the child’s benefit relating to speech therapy, occupational therapy, professional counselling or therapy, physiotherapy, the cost of hearing aids, glasses or contact lenses, if it (or any portion thereof) is not eligible for reimbursement under any group insurance plan through which the child has coverage;
d. Any reasonable expense associated with the child’s participation in a psychoeducational testing or receipt of tutoring or other education support;
e. Reasonable application fees or testing costs incurred by the child in order to apply to college and/or university programs;
f. Counselling for the child including reunification counselling, if any.
- The parties will only contribute to the child’s expenses as outlined above if the parties consent to the expense in advance, in writing, which consent shall not be unreasonably withheld.
Income Tax and Benefits
The respondent mother shall claim the eligible dependent credit as it relates to the child. The respondent mother shall be entitled to claim the Canada Child Benefit for the child from June 1, 2017 forward.
Annually, when filing his/her income tax return, each parent may claim a deduction for any eligible medical expense pertaining to the child if it was not reimbursed to him/her under the terms of a group insurance plan maintained for the child’s benefit in the applicable calendar year.
Life Insurance
The applicant father shall maintain life insurance through his employment in the amount of $150,000 and designate the respondent mother in trust for the child as irrevocable beneficiary of the insurance (if that designation is allowed by the insurer, otherwise the respondent mother shall be designated as the irrevocable beneficiary) to secure child support and s. 7 expenses (including postsecondary education) for the child. The insurance will be unencumbered and enforced while the child is eligible to be supported. Once child support terminates, the applicant’s obligation to maintain this insurance is terminated.
Within 30 days of signing this agreement the applicant father will provide the respondent mother with proof of the face amount and beneficiary designation on his policy.
The trust terms upon which the respondent mother holds the insurance proceeds are as follows:
a. Until the age of 22 the income from the proceeds of insurance must be used in the trustee’s sole discretion for the welfare of the child. Any income not used in a year must be added back to the capital and treated as part of it. The trustee may encroach on the capital if necessary, in an amount and as frequently and for whatever purposes she may determine in her absolute discretion;
b. Whatever is left of the proceeds of insurance when the child becomes 22 years of age must be paid to him provided that, if the child is then deceased, the amount remaining will be paid to the applicant’s estate.
- The purpose of the insurance is to replace the support obligation and not to provide a windfall if the insured dies. Therefore, the applicant father may request that the amount of life insurance be lowered, no more than once every year, on the basis that the amount required has been lowered by the passage of time or other relevant factors. The following factors will be considered in determining the reduced amount of insurance:
a. The amount of total support to be paid, pursuant to this order or an amending order;
b. The number of years left of the support obligation;
c. The benefits the child would receive on the insured’s death from the insured’s employer;
d. The nature and amount of each party’s ongoing contribution to the child’s support;
e. The parties’ financial circumstances;
f. Any other relevant change in circumstances occurring since any policy amount was last set.
- The applicant father may request that the amount of life insurance be lowered, or the cost of the premiums be shared by the parties if the cost of the premiums is materially increased. This may be due to a scheduled increase in the premium or material increase in the cost of the insurance if private insurance is required because of the loss of employment. If the parties cannot agree, the issue of the new insurance or other security provisions may be brought to the attention of the court.
Group Health and Dental Insurance Coverage
Through his employment, the applicant father has available to him family group extended health, medical, prescription, dental, orthodontic, and vision care coverage which he currently maintains for the benefit of the child. He shall continue to maintain this group insurance coverage for the child as long as he remains eligible for the coverage while he remains employed in the group insurance plan remains available to him at a reasonable cost.
If the respondent mother incurs an expense for the child for which the applicant father has coverage, the applicant father will submit a claim on behalf of the respondent mother for the child within 14 days of receiving from the service provider or the respondent mother the receipt for any expense which is eligible for reimbursement under the terms of his group insurance plan.
Within 10 days of receiving reimbursement from his insurer, the applicant father shall provide payment of same to the respondent mother.
Spousal Support
The applicant father shall pay lump sum spousal support to the respondent mother in the amount of $30,000 immediately following the final disposition of the issue of costs in this proceeding. This sum shall not be taxable to the applicant or deductible to the respondent mother in their incomes for tax purposes.
Following this payment, spousal support shall terminate forever.
Property and Equalization Payment
The applicant father shall immediately pay off and discharge the parties’ joint Royal Bank line of credit free of any contribution by the respondent mother. If the respondent mother or applicant father becomes liable for a debt the other has assumed, the party who has assumed the debt will fully indemnify the other.
The respondent mother and applicant father will each be solely responsible for the payment of each one’s own personal debts and liabilities and will indemnify the other from any expense or liability with respect to each one’s own personal debts and liabilities.
Neither the respondent mother nor the applicant father will pledge the credit of the other or bind the other for any debts either may incur after the date of this order. The respondent mother and applicant father acknowledge that they have not pledged the credit of the other since separation.
Each party shall bear their own costs in relation to the spousal support and equalization of property claims.
Madam Justice Julie Audet
Released: December 20, 2019
COURT FILE NO.: FC-17-1241
DATE: 20191220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
V.L.
Applicant
– and –
M.L.
Respondent
REASONS FOR decision
Audet J.
Released: December 20, 2019
