COURT FILE NO.: FD408/18

DATE: 20200407

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.P.M.

Applicant

– and –

A.L.M.

Respondent

Jelena Buac and Greg Spriensma, for the Applicant

Kenneth Duggan, for the Respondent

HEARD: October 7, 10, 11, 15, 16, 17, 18, 21, 22, 23 and 24, 2019

grace j.

A. Introduction

[1] An eleven-year union formally ended in late December 2017. The applicant father, M.P.M. (“M.M.”), moved out of the London, Ontario residence the parties shared with then nine-year old daughter D.M. and six-year old son S.M. and into his sister’s home in nearby Komoka. The respondent, A.L.M. (“A.M.”), stayed in the residence with the children.[^1]

[2] D.M. is currently eleven years old. S.M. recently turned nine. The parties have vastly different relationships with them. Attachment with their mother is extraordinarily close. Sadly, they have thus far repelled all attempts to perpetuate a connection to the applicant. Is it, as he alleges, a product of the respondent mother’s persistent and successful effort to alienate them or is it, as she maintains, something that resulted from M.M.’s conduct during and soon after the end of the parties’ marriage?

[3] Answers matter and impact the inquiry into the best interests of the children. The custody and access issues involved in this difficult case dwarf those concerning the parties’ modest finances. I will deal with the issues involving the children first and then those of a financial nature.

B. Custody and Access

1. The orders sought

[4] The final order the father seeks includes terms that: (i) grant him sole custody and make him the primary caregiver; (ii) contemplate no contact between the mother and the children for a period of four months followed by a review of that term by the court; (iii) continue reconciliation counselling with social worker Paula DeVeto; and (iv) require that the respondent receive therapy to address the behaviour that is alleged to have caused and perpetuated estrangement between the applicant and the parties’ children.

[5] The respondent contemplates a final disposition that (i) involves a sharing of custody; (ii) the children continuing to reside principally with her; (iii) gives A.M. “final say subject to review by [the] court after [a] motion for leave” following “meaningful consultation”; (iv) requires participation in a reintegration process involving a child psychologist to be identified; and (v) contains a detailed access schedule in favour of the applicant following reintegration that would generally involve two hours of midweek access and alternate weekends.

2. The witnesses and other sources of evidence

[6] Fourteen witnesses testified at trial. Frequent mention of the children was made in the testimony of most of them and in many of the fifty-three exhibits introduced at trial.

[7] Counsel for the father called the applicant and ten other witnesses: the paternal grandmother and grandfather, M.M.’s present romantic partner C, the paternal grandfather’s current spouse, three friends and social workers Ms. DeVeto, Lisa Heslop and Kayla Gowdy. As directed by the case management judge, examination-in-chief of four of those witnesses was limited to identifying affidavits they had sworn. Those witnesses were then cross-examined.

[8] In addition to his client, the lawyer for the mother called the maternal grandmother and a friend of A.M. The evidence of another eleven witnesses was introduced by way of affidavit. The applicant was given but declined the opportunity to cross-examine the affiants.

[9] According to the trial scheduling endorsement form (“TSEF”), the respondent intended to call the children as witnesses. The parties were told they were not to be brought to the courthouse, let alone called, until argument had been heard and a ruling made. A date and time for submissions was set at the end of the ninth day of trial. By that time, the nature of the respondent’s request had changed. The court was advised that it would be asked to interview the children instead. Shortly after adjourning the matter for the day, the court was informed that the request had been withdrawn.

[10] Certain documentary evidence was introduced on consent and for the truth of the contents except to the extent, if any, contradicted by the testimony of a witness. Records obtained from the Thames Valley District School Board (“TVSDB”), Merrymount – Family Support and Crisis Centre (“Merrymount”), The Children’s Aid Society of London and Middlesex (“CAS”) and the London Police Service (“LPS”) were introduced in that fashion. Some of those documents record the results of interviews conducted of or about the children.

[11] Two videotapes were shown during the trial. They were made by the paternal grandmother during a rare post-separation access visit.

[12] Nine audiotapes were also played for the court. All were made surreptitiously. Eight of them were recorded by the respondent during the period from March 21, 2018 through July 27, 2019. The ninth was made by the applicant. It captured a December 9, 2018 telephone conversation the respondent initiated in the middle of the night.[^2]

[13] The video and audio recordings provided opportunities to hear and in the case of the former, see the children and others present at the time the record was made.

[14] With respect to the audio recordings, if not before, the parties are now aware that it is a criminal offence[^3] to knowingly intercept[^4] a private communication by means of any mechanical or acoustic device.[^5] None of the statutory exceptions apply to this fact situation.[^6]

[15] Independent of statute, the court has generally disapproved of the practice adopted frequently by A.M. and once by M.M. In F. (A.) v. W. (K.), 2013 ONSC 4272 (S.C.J.) at para. 56, Harper J. explained why:

…much of the reasoning behind the desire to discourage such conduct is that the parties should build trust in the other to be able to parent after separation.

[16] Nonetheless, surreptitiously recorded conversations have been admitted in cases involving custody when their probative value outweighs the policy considerations that encourage their exclusion[^7] and ruled inadmissible when they do not.[^8] A secret recording has been admitted following a finding that the contents provide necessary assistance in determining the best interests of the children[^9] or when it establishes that one party says one thing in public and quite another when that person thought they were safe from scrutiny.[^10]

[17] As mentioned earlier, the parties agreed the court should hear the recordings in this case.[^11] Their counsel said they would confine their submissions to the issue of weight.[^12]

[18] One concerning aspect remains. The order made by the case management judge on March 13, 2019 included the following term:

Neither party shall tape (video or audio) any interaction or conversation between them.

[19] The respondent breached that provision at least once.[^13] Further comment on that topic will be made later.

[20] Despite the length of the trial, it became clear that there is evidence – potentially a large amount of it – that was not disclosed, let alone produced.

[21] By way of example, the respondent acknowledged she had many audiotapes in her possession beyond the eight I have mentioned. A.M. also said that she kept a journal. The court was not told what it contained. None of that material was disclosed before trial. A third videotape was taken by the paternal grandmother during the access visit that was the subject of the ones that were shown at trial. It was not produced to the respondent and was not displayed during the hearing, although offers to do so were made.

[22] Further, neither party called a litigation expert. While such evidence may have been extremely helpful, that comment is not intended as a criticism. The parties have limited financial resources. Nonetheless, in a case of this importance, one cannot help but wish for a complete record. I have done the best I can with the evidence that was introduced.

3. The undisputed facts and the procedural history

[23] A summary of some agreed upon events provides initial context. A.M. and M.M. were in their mid-20’s when they met in the fall of 2006.[^14] As now, M.M. was involved in the concrete industry. A.M.’s employment history is in the area of education. She was then – and is now again - employed as an educational assistant at a local school.

[24] The relationship moved forward quickly. In 2007, the parties purchased a home in London, Ontario. D.M. was born in early October of the following year.[^15]

[25] About a decade ago, the applicant and a business partner started a concrete business of their own (the “partnership”). That continues to be his major source of income. The business is seasonal and suspends operations from late fall until early spring. Where possible, M.M. obtains other employment during that time of year. On occasion, he has been hired by a local construction company.

[26] S.M. was born in early March 2011. M.M. and A.M. married about eighteen months later.[^16] The marriage was a bumpy one. It is undisputed that the parties argued frequently.

[27] It is also agreed that the applicant’s business, work ethic and hobbies occupied a lot of his time. Precisely how much and the extent to which it limited his involvement in the lives of the parties’ children is in issue.

[28] The respondent clearly played the primary parental role while the parties cohabited. While an increasing source of friction, the applicant did not work outside the home after D.M. was born. M.M. readily acknowledged that the children’s bond with A.M. was a strong one, even before separation.

[29] For now, the timeline can jump forward to the middle of 2017 when M.M. told A.M. he wanted a divorce. Nonetheless, the couple continued to live in the matrimonial home although they usually did not occupy the same bedroom. Some counseling services were obtained before M.M. physically left the home just after Christmas of that year.

[30] The applicant acknowledged that he was away from home much more frequently during the last few months. The respondent suggests M.M.’s absences were due to the fact the relationship with his current partner, C, was already in full bloom. M.M. denies that was the case.

[31] C and M.M. have been linked romantically since at least January 2018. Whenever that romance started, M.M.’s choice features prominently in the narrative. A.M. has often blamed that relationship for the current chasm between father and children.

[32] In the months immediately following separation, M.M. shared time with the children from time to time. Most of the visits occurred in the matrimonial home.

[33] Attempts to take the children elsewhere did not go well as evidenced by the March 21, 2018 recording A.M. made.

[34] Difficulty in obtaining access outside the matrimonial home was cited by M.M. as a principal reason for the initiation of this proceeding on March 28, 2018.

[35] On April 18, 2018, the court requested the assistance of the Office of the Children’s Lawyer (“OCL”). In explaining the reason for the court’s request, McArthur J. wrote:

The children have medical and mental health issues that must be addressed in relation to parenting issues that involve custody and access.

[36] Soon afterward, Julie Lee was appointed as counsel for D.M. and S.M.

[37] On that same day and with the consent of the parties, a temporary, without prejudice access order was also granted. According to its terms, M.M. was to spend four hours every Wednesday and alternate weekends with the children. Pickups were to occur at school.

[38] Unfortunately, those arrangements did not go smoothly. Occasionally the children went with M.M. Often, they did not. None of the visits lasted overnight. By June 2018, the parties were utilizing the services of Merrymount to facilitate M.M.’s access. Three largely unsuccessful attempts were made that month resulting in Merrymount’s withdrawal.

[39] The parents tried a number of private exchanges at Springbank Park next. Without fail, the children refused to separate from their mother. Without the applicant’s knowledge, A.M. recorded the failed attempts in August and September 2018.

[40] During that time period, Templeton J. directed the parties to retain Ms. De Veto to provide parent-child reconciliation counseling.[^17]

[41] Unfortunately, matters continued to sink lower. On September 19, 2018, George J. ordered that the matrimonial home be listed for sale despite the respondent’s opposition. The request of A.M.’s solicitor to be removed from the record was granted then too.

[42] An access visit was to have occurred later that day. From all accounts, it was a horrible experience. Thereafter, M.M. voluntarily suspended further attempts in order to allow Ms. DeVeto to do her work.

[43] I will come to a host of other events that occurred in the months that followed later in these reasons. For now, it is sufficient to note that the children have spent no meaningful time with their father for almost two years.

[44] There was a brief glimmer of hope along the way. March 2, 2019 was S.M.’s eighth birthday. Arrangements had been made for him to spend a little time with his father the following day. Pickup was to occur at the respondent’s home. Ms. DeVeto and the paternal grandmother were to provide transportation. An enduring record of that failed effort was captured by a recording made secretly by A.M.

[45] If not before, certainly by the end of this attempt it was clear that Ms. DeVeto’s efforts to reintegrate M.M. and the children had failed.

[46] I have mentioned Ms. Lee before. As noted, she was appointed by the OCL to provide legal representation to the children. She left private practice in October 2018 and was replaced soon afterward by Therese Landry. The appointment of Ms. DeVeto had caused the OCL to pause its work. In early March 2019, it reengaged.

[47] The court’s involvement increased in that month too. March 13, 2019 was the first return date of a motion the applicant had brought seeking interim custody of the children. Henderson J. assumed a case management role. Based on the evidentiary record before him, Henderson J. ordered that the applicant have an access visit with the children on March 16, 2019 at the home of the paternal grandfather. The applicant’s father attended at the respondent’s home in accordance with the order. He returned home empty handed.

[48] On March 20, 2019, the case management judge ordered that there be an access visit on March 27, 2019. A friend of the applicant, Will S., was entrusted with the task of picking up the children from school. Success eluded him too.

[49] Simultaneously, Ms. Landry and social worker Lisa Heslop were soldiering on with their effort to determine the views and preferences of D.M. and S.M. Their work was summarized in affidavits of Ms. Heslop sworn May 6 and 27, 2019 and by testimony given by her at trial.

[50] On May 30, 2019, M.M.’s motion for interim custody was argued before Tobin J. By then, A.M. had brought a similar motion of her own.

[51] In an endorsement released June 5, 2019, Tobin J. explained his reasons for dismissing both motions. He noted that much of the evidence was conflicting. It had not been tested by cross-examination. The trial date was fast approaching. The motions judge continued:

Generally, it is not in a child’s best interests to disturb a status quo on a temporary basis pending a trial absent exceptional circumstances. This is a very close case, but I am not satisfied that, on the entirety of the evidence before me, the circumstances cross into exceptional.[^18]

[52] The situation did not improve in the months that followed. The OCL provided frequent updates to the court concerning its continuing but unsuccessful efforts to interview the children separately and privately. On July 19, 2019, the OCL took the unusual step of asking permission to be removed from the record. The request was granted.

[53] On July 27, 2019, M.M. accepted A.M.’s invitation to spend time with the children. The following day, the applicant and his friend T.J. visited the former matrimonial home. The occasion was recorded by the respondent without their knowledge. Once again, the children refused to spend time with their father.

[54] During the trial, D.M. celebrated her eleventh birthday. The court heard that she refused to take M.M.’s call and declined the card he tried to deliver. S.M. turned nine while this decision has been under reserve. These reasons were almost complete when the COVID-19 crisis changed everything. The continuing emergency and its significant repercussions caused me to revisit and revise the disposition I was about to order.

[55] I turn to the parties’ positions concerning custody and access.

4. The parties’ positions with respect to custody and access

[56] M.M. acknowledges that since March 2018, D.M. and S.M. have expressed their desire not to see him repeatedly, loudly and at times profanely. The reason they do so, he says, is because A.M.’s bitterness over the separation and M.M.’s choice of new partner has been passed onto and taken hold of the children. In other words, their expressions are not a product of their own thought process but a parroting of the feelings of their mother. This, he submits, constitutes parental alienation.

[57] The applicant submits that the best interests of the children require that they be removed from the poisoned environment their mother has created and perpetuated. As mentioned, he asks for sole custody, no access to the respondent for a period of four months and a review of the access issue at the end of that period.

[58] The respondent denies the allegation of alienation. During the questioning of witnesses, the respondent seemed to be advancing two different theories: (i) first, that there was no real attachment between the applicant and his children because M.M. was usually absent, uninvolved, drinking heavily and abusive; and (ii) second, even if there was a connection, it was destroyed when the applicant lied about his relationship with C and abandoned the family home, the children and their mother.

[59] As noted, despite the respondent’s argument, she seeks an order that would grant the parties joint custody with her residence continuing to be the children’s primary home. With some modification, the interim access arrangement would continue but only after completion of a psychologist led reintegration process.

[60] During closing argument, the respondent’s solicitor unexpectedly argued that this case is, in fact, “all about the money.” He submitted the applicant’s request for custody is disingenuous. A.M.’s lawyer argued M.M. is simply seeking to avoid paying child support. A.M.’s counsel also suggested that M.M. had sabotaged the right of access he had been given. This submission should be dealt with now. It is entirely without merit. In fact, I would go further and say it is absurd and unsupported by a shred of evidence. This incredible theory will not be mentioned again.

[61] It is time to turn in greater detail to the evidence marshalled by the parties.

5. Additional evidence relating to custody and access

(a) Pre-Separation

[62] I start with some more information concerning the children. As stated earlier, D.M. is eleven and S.M. nine years old. They were born in October 2008 and March 2011 respectively. They are currently in grades six and three.

[63] The applicant was asked to describe the personalities of his children. He said D.M. is strong-willed. Perseverance is an attribute she possesses. She likes to lead too. D.M. enjoys her role as a big sister and takes her responsibilities seriously. She enjoys sports, particularly soccer and gymnastics. She loves to sing and dance.

[64] M.M. said S.M. is loving, caring and a peace-maker. He enjoys the outdoors: walks in the woods, road hockey, nature, including trips to a nearby pond to catch frogs.

[65] The OCL recorded comments A.M. made about the children. The narrative provided by that source follows:

[A.M.] describes [D.M.] as very smart, perceptive and quick witted. She stated that [D.M.] is very observant and a people watcher. She is feisty and a little sassy. She is also sweet, kind, loving and has a heart of gold. She has had some peer conflict. She loves school and loves to learn. She loves to play sports and be active.

[A.M.] describes [S.M.] as loving, gentle and a little naïve. She said that he is adventurous, likes animals and history. He does not like school. She said that [S.M.] would rather be home with [A.M.] than at school.[^19]

[66] When asked the same question, the maternal grandmother said that her grandchildren are “great kids”. D.M. was described as very bubbly and well-mannered. S.M. was said to be very knowledgeable, particularly about things found in nature such as animals and vegetables.

[67] When first interviewed by the OCL, D.M. described herself as “sporty” and a “tomboy” who enjoyed playing soccer and baseball with boys.

[68] Both children have performed reasonably well at school. D.M.’s report card at the end of grade four commended her for a “wonderful school year”. Her teacher said that D.M. was an active participant in class with “fantastic ideas and knowledge”. However, she was “encouraged to seek the positivity in the day”. Conflict resolution was not a strength. Her report card from June 2019 was even more complimentary. Enthusiasm, infectious energy and a positive personality were all noted. She was, however, reminded “to maintain focus on her academics during class time to ensure that social issues or her peers do not bring her down.”

[69] S.M.’s grade one teacher said the young student “starts each day with a smile and friendly attitude” but needed “several reminders to remain focused throughout the day.” A similar comment was made following grade two. Most of his marks were good but those in reading and writing were not.

[70] Neighbour Kenneth Nanni gave evidence by way of affidavit that was introduced during the respondent’s case. He reported seeing the children out in the neighbourhood from time to time and deposed that:

During those instances when we notice [D.M.] and [S.M.] mixing with other children, they appear well adjusted (happy, motivated, and mixing well with others).

[71] From all accounts, D.M. and S.M. are incredibly close.

[72] I turn next to the evidence concerning the family dynamics prior to separation.

[73] As mentioned, as a result of work and leisurely activities the applicant spent a significant portion of his time away from the matrimonial home and his children.

[74] M.M. testified he was nonetheless an active participant in the lives of D.M. and S.M. He spoke fondly of the time they shared together. While at home they played. Examples included soccer in the backyard and road hockey in the driveway. S.M. liked to accompany his father to the nearby pond to catch frogs. Periodically he took the children “shed hunting”. M.M. said he enjoyed watching D.M. play organized soccer. He attended parent-teacher interviews. When time allowed, he was present during medical and dental appointments. The family spent time at the cottage the maternal grandmother owns.

[75] I have also noted M.M.’s acknowledgement that the children maintained a very close relationship with their mother. She did not work outside the home, although he wanted her to rejoin the work force. A.M.’s devotion to D.M. and S.M. has never been in issue. While the children had occasional outings with their father, they wanted A.M. nearby even before the parties’ estrangement. In fact, M.M. conceded D.M. and S.M. never spent a night apart from their mother.

[76] It is clear from the evidence that A.M. and M.M. have different parenting styles. A.M.’s approach has been to deal with behavioural issues quietly and privately. The applicant believes A.M.’s attitude is too relaxed. She lets too many things go by. In his view, misbehaviour requires an immediate and more firm response. The difference in philosophy often deflected attention away from the children and resulted in an unpleasant exchange involving the parents.

[77] M.M. said he felt unsupported by his spouse when dealing with a misbehaving child. He also found A.M. to be controlling. Efforts to spend time alone with the children were almost always resisted by her. He felt that his opinions were not shared, his wishes were ignored and his role diminished.

[78] Meanwhile, A.M. said she felt in tune with the children and their individual needs. Her philosophy, she believes, works. The applicant’s simply does not.

[79] The seeds of disharmony took a firm hold in 2017. By the middle of that year his decision to end their union had been made and communicated to A.M. He began sleeping in the basement. He was away from home even more than usual. The logistics of separation were still to be determined. A relationship that had been strained for many years, worsened.

[80] M.M. said the relationship with his daughter and son continued to be strong right up to the date of separation. He maintained any reduction in time spent with his children was intended to be temporary and was simply a product of the deterioration of his relationship with A.M. He said there were frequent arguments when he was home. Nonetheless, quality moments were spent with each child.

[81] The respondent maintains that M.M. underestimates the extent to which he was an absentee father. This, A.M., says, set the stage for what followed separation. M.M.’s absences from the home in 2017 increased. He was rarely in the company of the children. Even if physically present, he was preoccupied with his phone. The children noticed, felt their father slipping away and in time, grew angry and resentful.

[82] A.M. alleged that from about May 2017 onward, her spouse did not even answer or respond to calls made or texts sent to his cell phone. The respondent said that often the calls were made so that he could say goodnight to the children.

[83] A.M. alleged the children witnessed first-hand the final stages of the couple’s relationship. Arguments would occur in their presence. Frequently, the applicant would say “I’m f’ing done” and leave the residence. The respondent alleged M.M. would say other things too. For example, that he would ruin her, tell a judge A.M. was crazy, take the kids from her and leave A.M. with nothing.

[84] Julie G. was one of the witnesses called by the applicant. Her spouse, T.J., is one of the applicant’s closest friends and Julie G. and the respondent were quite close at one time too. Texts exchanged by A.M. and Julie G. were introduced into evidence. On September 2, 2017, A.M. wrote in part:

Thank you for listening today. I’m really struggling with this. I want [the applicant] and I to work out. I love him a lot and want our family together. I hope we get through this.

[D.M.] cried herself to sleep tonight. She said she hopes Daddy doesn’t want to break up with me.

[85] September 9, 2017 is an important date in the respondent’s narrative too. That was the day the applicant took the children to the home of his good friend Dave M. in Parkhill, Ontario and then to the Parkhill Fair. On their return, D.M. told her mother that she had seen the applicant kiss another woman. When that information was passed on to M.M., he denied it. While also disputed, the respondent says that the applicant went further and told D.M. that she was “a little f’ing liar”. M.M. agrees that the issue was raised by his daughter at the end of the outing but denies both the alleged kiss and the comment attributed to him.

[86] At trial, the respondent alleged the parties’ relationship further deteriorated on October 19, 2017. She said the applicant physically and sexually abused her that day. He says that never happened.

[87] On November 18, 2017, A.M. told her friend Emma W. that M.M. had gone out, turned off his phone and failed to come home. Among other things she said:

I will not allow him to hurt us any more…The kids are being very clear about [their father’s] behaviours. I’m done protecting him.

[88] The respondent also communicated with Julie G. that day. Their exchanges included the following:

A.M. - [M.M.] is adamant he wants a divorce…Now I have to get a children’s lawyer involved because [M.M.] is telling the kids they will have to live with him. They are scared he isn’t going to give them back to me. They are asking if they can just live with me and see him sometimes. It’s all so sad.

Julie G. - He mentioned wanting joint custody to TJ. Yes it can be pricey but if you go through lawyers you save a ton. As hard as it is, it will be easier to work together and negotiate…Plus that is way better for the kids…

A.M. - I’ve gone to the courthouse already and consulted with about ten different lawyers. [M.M.] won’t get joint custody. He is never around. Has never been around and continues not to be around. He can’t provide for the kids a stable environment. He told me he will assign family or babysitters for when he is gone. Which isn’t fair to the kids. At all. And not what they want. This will go to court

[89] The march toward separation neared its end in early December 2017. The parties discussed custody and access issues with M.M.’s mother in attendance. Matters remained unsettled.

[90] A few days later, the respondent texted Julie G. again. On December 12, 2017 the respondent explained:

Poor [D.M.] is so confused. She keeps saying “daddy says he is unhappy but if he decides to break our family apart [S.M.] and I won’t be happy. So why doesn’t he care about our happiness”. I can’t answer these things for her…

[91] The exchange continued:

Julie G. - All you can do is ensure [sic] them that no matter what their mom and dad still love them. They are too young to understand relationships.

A.M. - They understand more than we give them credit for…

Julie G. - Has he moved out? Or just gone all the time?

A.M. - Gone all the time.

[92] The next day a letter from the applicant’s lawyer arrived at the matrimonial home. While not introduced into evidence at trial, the court was told it set forth a proposed separation date of December 11, 2017. The parties adopted that day for the purpose of this proceeding, although the applicant had not yet moved to Komoka.

[93] The applicant alleged the respondent reacted badly to his solicitor’s correspondence. He said he was present when A.M. told their daughter the letter had been received. A.M. also told him of her intention to tell the children “everything.”

[94] In the weeks leading up to Christmas, A.M. said she wanted M.M. “to spend more time with the kids.” Apparently, the applicant felt the same way as A.M. told her friend that M.M. “would like more time with” the parties’ children.

[95] However, where that was to occur was in issue. A.M. balked at the idea the applicant would “take them away to his friends [sic] or away for a night” because that had not happened before. Instead, she said, M.M. “needs to start doing things with them at home to build that relationship.”

[96] Still later, A.M. told her friend the children “cried and were heartbroken” because their father “didn’t even want to decorate the Christmas tree with them.” She added:

They wake up and say “did daddy come home”. [sic] They are really scared. He needs to focus on them right now.

[97] December 21, 2017 featured in the respondent’s narrative. She alleged the applicant threatened to throw her off a bridge during the family’s journey home following the purchase of a Christmas tree. M.M. said no such threat was ever issued.

[98] Christmas Day came and went. The respondent alleges the applicant treated the children with indifference. Instead of playing with them, he spent the day texting. The respondent did not deny the use of his phone on the holiday or that he had communicated with C. However, he said he was engaged with M.M. and S.M. although unable to remember the events of the day in detail.

[99] The applicant stopped living with A.M. and the children during the evening hours of December 28, 2017. A.M. maintains that the circumstances of his departure caused the chasm between father and children to widen. The respondent had spent a rare evening out with friends. The applicant had put the children to bed and then left without a word. This, the respondent says, devastated not only her but the parties’ then nine-year-old daughter and six-year-old son too.

(b) Post-Separation – Late 2017 and 2018

[100] The record contains some contemporaneous commentary of the respondent concerning the aftermath of the separation. On January 1, 2018, Julie G. invited S.M. to join her family at a movie. A.M. declined. She explained “The kids are really struggling right now and just want to be close to me all the time.”

[101] The applicant steadfastly maintained that he enjoyed a very good relationship with his daughter and son for a short period after separation. Meaningful time was spent together both inside and outside the home. They were always glad to see him and spend time. They played road hockey, went to the local YMCA to swim and to a nearby arena to skate.

[102] A.M. remembered things differently. She said M.M. had infrequent contact with the children post-separation too. She testified the applicant rarely tried to speak to D.M. or S.M. by cell phone or other electronic means. In-person contact was rare too. She alleged that when present, M.M. would talk about the sale of the parties’ home and the sharing of custody in the presence of D.M. and S.M.

[103] A.M. testified that she offered the applicant opportunities to see the children that were refused. On other occasions, M.M. made and then cancelled plans. Aside from a week C was away, the respondent alleged visits were infrequent and short.

[104] The respondent said the parties agreed that access would be exercised at the former matrimonial home because the applicant had not been a hands-on parent. There was a clear understanding D.M. and S.M. would not be taken out for extended periods, let alone overnight. M.M. became increasingly unsatisfied with that arrangement. He wanted to exercise access away from the children’s residence. However, the parties’ young daughter and son were never comfortable with that idea.

[105] On January 6, 2018, things took another significant turn. A.M. told Julie G. that she learned the applicant was having an affair. She expressed shock and added “Today I am a mess.” During the exchange that followed A.M. added:

He is upset that the kids don’t want to be around him. [D.M.] refuses to say I love you now and said she is done with him. She won’t even talk to him when he calls. [S.M.] told me the other day that he and [D.M.] could hide really good [sic] and when [M.M.] came to the house I could tell them they died so he will leave us alone.

It’s heartbreaking. My 6 year-old shouldn’t feel unloved and abandoned. They don’t trust him…

[106] A few messages later she told her friend:

I wish he would be open to at least trying. What’s the harm after 12 years? Honestly. The kids are heartbroken and are saying they hate him.

[107] On January 13, 2018, A.M. told Julie G. in part:

Honestly, I am a mess Julie. I’m not eating or sleeping. I cry constantly. I so desperately want to work on our marriage. Make the changes that are needed for us to be happy. The kids keep asking me to please bring Daddy back. Please show him I love him. Ask him to not leave us. They are praying he will come back and save our family.

My heart is broken. [M.M.] feels unloved. I hate that I did that to him. I never meant to.

[108] In a January 15, 2018 text to Julie G., A.M. mentioned the children again. In part she wrote:

I love him. Why is he doing this to us? [D.M.] is a mess. She says he is ruining her life. That she is scared. [S.M.] is avoiding. Just cries all the time…

[109] Thereafter, the messages demonstrate the range of emotions the respondent was feeling. A short period of regular contact with her estranged spouse by phone, text and in-person led to brief optimism. A.M. told Julie G. she believed M.M. was “a family man” at heart.

[110] However, it did not last. A.M. told Julie G. she had gone to M.M.’s new residence in Komoka one morning. She was not expected. C was there. The respondent wrote that she was “[f’ing] devastated”.

[111] The applicant testified he continued to visit the children regularly. He said the respondent required that access time be spent inside the matrimonial home. Outings were rare. In cross-examination, M.M. acknowledged he never heard A.M. tell the children not to go with him. However, he could think of no other reason for the increasing reluctance of his daughter and son to accompany him elsewhere.

[112] On January 9, 2018, D.M. met for the first time with Kayla Gowdy, a social worker employed at Thames Valley Family Health. In her January 31, 2018 clinical note, Ms. Gowdy wrote in part:

I met with [D.M.] today. She was focused and talkative…Her father missed her skating lesson this week, and she found out later he went skating with his sister. When they are together, he doesn’t discuss the marriage breakdown…She expressed anger towards him, and when asked what would help, she said regular contact…

[113] Ms. Gowdy’s next note was made on February 1, 2018 following a conversation with M.M. She recorded reviewing with the applicant “the importance of consistency in routine” and “avoiding involvement of the kids in conflict”. She also noted that M.M. “advised that he is seeking a consistent access schedule, because he feels that [D.M.’s] mother is screening calls, making it hard for him to talk to the kids.”

[114] A.M. denies the suggestion she was the impediment to access. Her commentary concerning the applicant in the second month following separation bears mention here. Texts were sent by A.M. to Julie G during the morning hours of February 16, 2018. A.M. said that M.M.’s behaviour was “disgusting”. Later, she added:

If [M.M.] cared about his wife and kids he would not have had an affair.

He is not making an effort to see his children. He is busy spending Fridays and Saturdays drinking!

You know he was still home and being intimate with me while starting an affair with her!

His daughter asked [M.M.] several times to spend time and do things. (New Years, Super Bowl, [M.] Movie night). He gave excuses and lied. Now she tells him she hates him and refuses to spend time with him. She disclosed everything to her counsellor. And yet he continues to lie to her. And doesn’t seem to understand why she is angry! [S.M.] is done. Says his Dad is mean and doesn’t love him.

[115] In response, Julie G. suggested the applicant have M.M take the children for a weekend. A couple of messages later the respondent’s friend offered a comment and some advice. In part she said:

The kids are mad cause they have to [sic] much information. They should only know that you both love them.

[116] M.M.’s affair was the focus of the respondent’s contribution to the final exchange that day. Excerpts follow:

A.M. – I owned up to the part I played. I was willing to make changes needed to keep our family together. He choose [sic] to have an affair instead of putting us first. But at the end of the day he needs to be honest about that. The children know what he has shown them. He took them to Parkhill to see her….he kissed her in front of [D.M.]. She told me when they got home and them [sic] he called his daughter a liar because of it. We almost took her to emerge because she was so distraught. It is sick and twisted.

The children know I love them. I have shown them time and time again they are my priority. What he chooses to show them is up to him. I can’t force him to want to spend time with them or call them or see them…He is choosing his affair partner over his children…

Julie G. – That’s why he wants part custody so he can see them. He’s not just going to walk away. [A.M.] he fighting [sic] for the kids.

A.M. – He can see them anytime. I’ve told him that time and time again. He is more than welcome to call, FaceTime, come over, see them, etc. He doesn’t make an effort Julie…He hasn’t said anything other than that he and I are not good “right now”.

Julie G. - [A.M.] he’s [sic] asked for joint custody and you wouldn’t allow it. You offered him 1 day a week.

A.M. - Yes I did. He doesn’t make an effort with the children. He goes days and days without contact. Doesn’t answer our calls or texts. Doesn’t show up when he says he will. Shows up late smelling like alcohol. Sits on his phone and texts when he is here and leaves as soon as he can. That doesn’t describe a man who wants his children. My priority is the children. They do not feel comfortable or safe with him. It’s important he build a relationship with them. In order for that to happen he will need to put them first. Put the party days on hold and be there for them. He can resume the party life after.

[117] There was very little communication between A.M. and Julie G thereafter. However, the possibility of an out-of-town, overnight access visit was the subject of text messages exchanged by the parties that same February 2018 afternoon. The respondent had asked the applicant whether he would like to visit the children sometime during the upcoming weekend. M.M. responded. He told A.M. he had plans to go to Woodstock, Ontario on the Saturday afternoon but hoped to take D.M. and S.M. skating or to a cooking class on Saturday morning. The balance of the exchange follows:

A.M. - Maybe they would like to go to Woodstock if we could convince them.

M.M. - That would be great [sic] are you okay with them spending the night. I’m sleeping over.

A.M. If they are okay with it of course. If not I could come get them later.

[118] The court was not told whether, let alone where, access occurred that Saturday but M.M. testified an overnight access visit had never occurred. A.M. did not suggest otherwise.

[119] The paternal grandfather enters the story for the first time in this timeframe. He had been dealing with significant health issues. However, on February 27, 2018 he felt well enough to send a text offering to take D.M. and S.M. out for dinner the following evening to celebrate S.M.’s fast approaching birthday. A.M. responded early the next morning. She said she had taken the children out the previous evening because M.M. had broken a promise to call and then added:

I mentioned dinner with you guys but I think the kids are confused, hurt, scared and really unsure of what to make of this whole situation. I want them to have a relationship with you and [your partner]. I would like to help make that happen but I also need to be mindful that they are very fragile right now. Their whole world is being turned upside down. I could come tomorrow night to have the kids feel safe and comfortable or we could have you guys over to the house one night next week for pizza and board games.

[120] The paternal grandfather’s participation in the conversation ended with this:

I am sorry to hear that the kids are feeling ‘confused’ about seeing their grandfather. By the tone of your reply I see that this is really still about you and [M.M.]. Never mind.

[121] The applicant testified that March 2018 was the last month he spent quality time with the children. He had taken them to search for fallen deer antlers - “shed hunting” as he called it. During the outing he had shown them the bedrooms they would occupy when visiting his Komoka home. Plans were made to go shed hunting the next day but the children wanted no part of that plan by the time he arrived to pick them up. The applicant can conceive of no reason for the change of attitude except efforts by A.M. to cast him in a poor light.

[122] Once again, the respondent remembers things differently. She said the children had no desire to spend time with the applicant away from their residence. She said a March 2018 outing ended after a couple of hours because D.M. and S.M. wanted to go home.

[123] That brings me to the first of the nine surreptitiously recorded audiotapes the parties agreed should be played during the trial.

[124] The eight made by the respondent recorded pick-up attempts made by or on behalf of M.M. The first captured part of M.M.’s attendance at the matrimonial home on March 21, 2018. Most of the dialogue involved M.M. and his then nine-year old daughter. The applicant received a poor reception from the moment the recording started. Some of the exchanges follow:

M.M. - …I’ve tried to come and see you and driven over…over and over again.

D.M. - Leave me alone, leave me alone.

M.M. - Mommy and daddy have made an agreement…

D.M. - Leave me alone.

M.M. - …that you guys…are

D.M. - No.

M.M. - …coming with me.

D.M. - No, you fucked up.

A.M. - What did she say?

M.M. - That I fucked up…

And later:

D.M. - You said you’re never gonna leave me.

M.M. - Yeah.

D.M. - And never come back.

M.M. - Okay…listen. I want to be with you. You say that I left you. I haven’t left you. I’ve wanted to do things with you, I’ve tried over and over to come and do things with you.

And later:

D.M. - I want to do things with you…in my house where I feel comfortable.

[125] That was the high point of the conversation. It took a lasting bad turn when M.M. explained to D.M. that he wanted to spend time with her elsewhere. That portion of the conversation is reproduced below:

M.M. - Daddy doesn’t live here any more and daddy’s never gonna live here again. Daddy wants to be with you. A house is just a house. That’s all that it is. Where we are together doesn’t matter. I love you.

D.M. - Well, it doesn’t seem like it.

M.M. - Okay. I would like for you to come with me. Do you want to come?

D.M. - No.

M.M. - Okay. I am going to leave so now is your chance to come with me.

D.M. - No.

Later,

M.M. - Okay. Mommy and daddy have made an arrangement, through our lawyers, that you guys are to come with me Wednesdays and every other weekend.

D.M. - What lawyers…No.

M.M. - It’s supposed to be for a couple of hours tonight…You have come with me plenty of times.

D.M. - Why? Why?

A.M. - You’re right. They’ll be fine.

M.M. - Good.

A.M. - [D.M.] it’s mommy, honey.

M.M. - [D.M.]

D.M. - Why?

A.M. - You go. I’ll pick up the pieces.

S.M. - Mom’s coming in.

M.M. - I don’t want you to pick up the pieces. I want my kids with me and they should have came [sic] with me right from the beginning like I asked.

A.M. - Right.

M.M. - And you said that I could have ‘em one day a week here. So don’t tell me…

A.M. - Let me console our child as she goes through this please. It’s mommy [D.M.]

M.M. - [D.M.] let me just come in and give you a hug…she’s my daughter as well. I don’t need you. [D.M.] let me come in for a sec honey.

D.M. - No.

M.M. - …do you want me just to leave?

D.M. - I don’t care what you do.

M.M. - I want to be with you.

D.M. - I hate you.

[126] Although present, S.M. was largely silent. However, it wasn’t long before he followed his sister’s lead.

[127] A.M. called the LPS the next day. The following is taken from the occurrence report prepared by an attending officer.

Upon arrival [A.M.] advised that she was seeking advice regarding her current separation. Police questioned her about the call notes indicating an “incident” to which she stated she just wanted advice. [A.M.] advised they are working on a custody agreement and there isn’t one in place at this point.

…She explained that she didn’t want [M.M.] picking the kids up tomorrow from school as indicated by his lawyer and she felt that [D.M.] and [S.M.] weren’t comfortable spending a full weekend with their father outside of the home they were comfortable in. She explained that [M.M.] had left without an explanation and has barely seen the children since his departure. [A.M.] explained she believed he had an affair and didn’t want her children around the “new girl” as it would be emotional [sic] traumatic. [A.M.] spoke at great length about her concerns with the children being traumatized and that she felt [M.M.] should spend time with the children inside the matrimonial home with them.

[128] Officers then visited the applicant at his residence in Komoka. The occurrence report closed with the following:

All advised to keep the peace and remain civil. Both advised to stay amicable for the sake of the children and to continue through the lawyers and courts if they can’t resolve matters themselves.

No criminal allegations. CAS not advised as both seeking advice only.

[129] As mentioned, this proceeding was commenced on March 26, 2018. Allegations of alienation were included in the application that was issued on M.M.’s behalf.

[130] A few days later the parties exchanged text messages. Those of March 30 and 31, 2018 follow:

A.M. - Hey [M.M.]. Did you get my text about seeing the kids at some point this weekend? Maybe we could meet up at a park or something for an hour? That way there isn’t ten days between you seeing them but it isn’t a meltdown about going with you. Small steps. Let me know if this is something you would like.

M.M. - I would love to spend time with my kids and especially since I didn’t get to have them on my last two Wednesday’s or my weekend last weekend but don’t want to confuse them by doing it together with you. I want to have my time with them to do things the three of us together so I will try again on Wednesday and will try phoning them this weekend and see how that goes.

A.M. - Okay. You are more than welcome to come see them at the house. I could step out for a bit. I imagine not seeing them for Easter will be difficult. Just let me know and we will make something work.

Later, after no response and with a photo attached.

A.M. - Would you like to be here in the morning with the kids to do the egg hunt? With things unsettled it may be good for them to have us both here. Let me know before 7 a.m.

M.M. - Great pic of the kids! I don’t think it’s good for the kids if I come over. I don’t want to confuse them. I want time with them but feel its [sic] best if it’s time just the kids and I. I will call to talk to them tomorrow and if I can take them out for an hour just the three of us that would be great.

A.M. - Okay! Talk to you tomorrow.

[131] Ms. Gowdy met with D.M. again on April 6, 2018. In part she wrote:

[D.M.] spoke about feeling a lot of anger towards her father. She feels that he left her, and she is frustrated by how little we [sic] will say to her to explain the situation…She stated that she is a ‘mini version’ of their mother, and she spends so much time with her mother, and is not comfortable being with her dad.

[132] D.M., S.M. and their mother met with family physician Dr. Cathy Frederick that same day. This excerpt is taken from Dr. Frederick’s clinical note:

Mom openly expresses her concerns about kids going with dad, voices “safety concerns”. Says he was not much involved with them while they were together so she questions his ability to care for them on his own now. Mom is encouraging gradual increase in time with dad…Dad wants weekends now. Kids are understandably confused…

[133] Not surprisingly, access visits by M.M. continued to be problematic. This exchange is taken from texts that passed between the respondent and applicant on April 9 and 10, 2018:

A.M. – Hey [M.M.]. Should I let the kids know you will call? You had told them you were calling Saturday between 5 & 6 and then didn’t. I don’t want to come across as me telling you what to do but it’s [sic] reinforces how they are feeling when that happens. I feel like it may help them if you have more frequent regular contact. Let me know how you are feeling about our conversation this morning too.

M.M. - Rocket Flyers!

The following morning:

A.M. – Hey [M.M.]. Why didn’t you call yesterday after work?

[134] The applicant filed a motion seeking a temporary access order on April 10, 2018.[^20] On the April 18 return date, the court granted a temporary order in accordance with the parties’ agreement, (i) requesting the involvement of the OCL and (ii) delineating the terms of an interim access arrangement. Pursuant to the temporary order, M.M. was to have four hours of time with D.M. and S.M. later that day and every Wednesday thereafter. He was also to enjoy overnight access every other weekend. Pick-ups were to occur at the children’s school.

[135] That order has remained in place ever since. However, implementation of its terms has been problematic from the very beginning.

[136] M.M. received a call from A.M. on the day the temporary order was made. Classes had not yet ended. The applicant was told S.M. was ill. M.M. retrieved his son early and took him to the matrimonial home. He met D.M. when she exited the school bus a short time later. The applicant said that after some initial reluctance, D.M. agreed to play road hockey in the driveway. S.M. joined in soon afterward appearing none the worse for wear. A.M. told the court that her son admitted faking illness to avoid being taken to M.M.’s new residence.

[137] The parties exchanged text messages the next day.

M.M. - Just called to talk to the kids at 6:30 like we talked about yesterday.

A.M. - I’ve reached out to you several times in the last few days. We called you earlier as well. [D.M.] had counselling today. Call me later if you want me to fill you in on it. Or call Kayla [Gowdy] tomorrow if that works better with you... I would like for us to be able to communicate with one another in regards to the children and this situation. I feel it is not necessary for us to continue to spend money only communicating through lawyers. I have concerns about things the…

[138] The message continued but the copy filed with the court was cut off there.

[139] Ms. Gowdy’s note with respect to her April 19, 2018 meeting with D.M. included the following:

[D.M.] spoke about feeling very angry with her father and not wanting to see him again. She also described crying when he did leave. She spoke about how she thinks this may just be a phase and he will come back again and be a part of the family. The child appears very confused and distressed by the mixed messages she is receiving.

[140] Overnight access was to start after school on April 20, 2018. Despite the terms of the order, that did not occur. A.M. sent the applicant two unanswered texts the afternoon of Sunday, April 22, 2018. She wrote:

A.M. - Are you planning to see the kids today?

[141] When there was no response, the respondent texted this message:

A.M. - Hey [M.M.]. Tried to call. Was wondering if you planned to see the kids today since it is your access day? Please let me know ASAP. It’s getting late in the day.

[142] A.M. tried to reach M.M. again the following day when she added:

Good Morning [M.M.]! Called to see if everything was okay. We stayed close to home thinking you were going to come see the kids for your access day. Hope all is well. Maybe call the kids after school? We are going to the pond once they unload their backpacks., do their homework and have a snack.

[143] If there was an answer, I have not seen it.

[144] Although M.M.’s efforts to exercise the rights the order gave him were occasionally successful, pick-up was never routine.

[145] Wednesday, April 25, 2018 is a particularly memorable example. M.M.’s mother accompanied him to school that day for what was supposed to be another agreed upon and court ordered access visit. Things did not go well.

[146] By all accounts, D.M. had no interest in going with her father and paternal grandmother. She failed in her effort to take the school bus to the matrimonial home instead. When intercepted by M.M. she yelled. She screamed. Unable to calm her, M.M. picked D.M. up in his arms and carried her to his vehicle. Initially D.M. did not quiet. She attempted to extricate herself from his grasp. Eventually, she was placed into her seat, secured by her seat belt and taken to Komoka with her more compliant brother.

[147] According to M.M. and his mother, D.M. calmed down quickly and the visit was a pleasant one. Dinner preparation was a group effort. Indoors, the children participated in a beanbag toss game. They kicked a soccer ball out back. The paternal grandmother captured all three events on her phone. The videos taken inside were played at trial. The third was not. Those that were shown were consistent with the testimony given by the applicant and the paternal grandmother.

[148] M.M. told the court the goodwill did not last. As the children neared their London home, they quieted.

[149] Notwithstanding the ultimate and relative success of the visit, M.M. expressed regret for forcing D.M. to get into his vehicle against her will. He vowed to never act in that manner again.

[150] The events of that late April 2018 day had repercussions. The event was dramatic. It unfolded in front of other students and their caregivers. At least one concerned parent called the CAS.[^21] That evening, A.M. did too. Allegations of inappropriate conduct were made against M.M. and the paternal grandmother. Soon after the incident, there was the following exchange of text messages:

A.M. - I’m not okay with [the paternal grandmother] putting her hands on our children (especially to the point of leaving marks). [D.M.] disclosed to Kayla [Gowdy] about her calling her an idiot and a little jerk. I’m upset that your Mom feels it is okay to treat our children like that. To be honest I would rather her not be around them until we discuss that with the judge.

M.M. - None of those things happened. I was with the kids the entire time. Please do not contact me anymore unless through our lawyers. I can make do with the things I’ve picked up for the kids. Again please do not contact me again unless through lawyers. You can call to talk to the kids at 6:30 if you’d like.

A.M. - Both [D.M.] and [S.M.] have given the same story. We need to be communicating on a regular basis. As well there is no need for us to spend money to discuss things that we are capable of figuring out…

[151] At trial, the court – and applicant – learned for the first time that D.M. had recorded some of what transpired at the school, in the vehicle and at the Komoka home on April 25, 2018. The respondent denied playing any role in the actions of her then nine-year old daughter. The respondent said that she did not learn of what D.M. had done until looking at the contents of her cell phone in June 2018. Although A.M. said she had preserved the recording, it was not produced to the applicant or played during the proceeding.

[152] The children were successfully picked up by the applicant from school at least two other times. The paternal grandmother helped him on one occasion. One of her friends accompanied him on another.

[153] During two of the unsuccessful attempts, A.M. arrived. According to M.M. and the paternal grandmother, A.M.’s arrival had the effect of undoing M.M.’s effort to persuade the children to go with him. On the other hand, A.M. maintained that her decision to come to the school was made after a staff member called and asked her to retrieve the children.

[154] It appears that the first of A.M.’s attendances occurred soon after the April 25, 2018 debacle. An LPS occurrence report summarized the account provided by an administrator at the children’s school:

The following week when the children again acted like they did not want to go, [redacted by LPS] called [A.M.] to let her know and she attended the school to pick up the children. When she arrived, she was very agitated with everyone and her behaviour caused the school concern over how it would affect others present and the children that may have been present at the school.[^22]

[155] Ms. Gowdy met with D.M. again on May 3, 2018. In part Ms. Gowdy wrote:

[D.M.] feels things are going slightly better. She had a visit with her father, not overnight, and while it was ‘not good’ and she would rather not go, she is beginning to understand that she has to. Her mom is reinforcing this. She’s worried about her mom, who was upset and throwing up in the toilet yesterday and [sic] she came home from access…

[156] On May 8, 2018 the principal called the CAS. Information was provided concerning A.M.’s first attendance at the school during M.M.’s attempt to pick up the children. The principal told the CAS worker that the respondent “had a history of being confrontational when not getting her own way”. He said the scene had been “quite a spectacle.”

[157] Text messages exchanged following the respondent’s arrival at the school on an access day for the second time include the following:

A.M. - Could you please drop [S.M.’s] hoodie off at the house…we are not there yet.

M.M. - [A.M.] it is my weekend to be with the children [sic] that’s what the court has ordered. Since you came to the school and took the children contrary to the court order I am proposing to meet you at spring bank [sic] park in front of story book [sic] gardens entrance and you can drop the kids off to be with me. I will need you to put them in there [sic] car seats. I hope you can do this I need your help making this happen. I will be at story book [sic] at 5 p.m.

A.M. - Hey [M.M.]. The kids are still struggling after what transpired at the school today. They are refusing to get into the van. Please work with the children on this. How do you feel about taking them for dinner or bowling as suggested by Mrs. L and Mr. T at the school? You could bring them home afterward? Then tomorrow and Sunday doing the same. I think we need to take steps to make things go smoothly for them. Please let me know ASAP as it is now dinner hour and the kids will need to eat soon.

And later,

A.M. - Are you okay [M.M.]? I am worried about you.

M.M. - This is my weekend with the kids that you have interfered… with for a second time. If you wanted to make things easier on the kids when you showed up to the school you would have suggested walking [D.M.] out to my truck and helping to reassure her that she would have a good time with me and [S.M.] and that I loved her. You chose to come and regress [sic] any positive steps forward that I have made with the kids by showing up and taking them again. If you would like to help the children’s and I relationship respect the court order and allow me to have the time with the kids that I and they need. Wednesday I expect that you will respect the court order and not interfere with my pick up of the kids.

A.M. - My intent was not to interfere with your access. I was contacted by the school to come, as [the principal] explained to you. They have expressed their concerns about school pick up and advised they no longer happen due to the children’s emotional state during. I have and will continue to encourage [D.M.] and [S.M.] to spend time with you. However, because they are displaying very concerning reactions I think we should consider alternate arrangements for the time being. I would like for you to attempt to spend time with the children this weekend. Perhaps a few hours Sat. and Sun. It is my feelings [sic] that the children would benefit greatly from a natural progression to spending time with you.

M.M. - The school has informed me that you have demanded they contact you if my pick up at school isn’t as smooth as you see fit. I am not discussing this any further with you it is best if it is handled through our lawyers and the court system as I feel everything you have done has been detrimental to the kids and mine relationship however passive aggressively it is done. Again I do not wish to have any further communication with you on this matter.

A.M. - Please advise if you are not wishing to have access this weekend.

[158] On May 22, 2018, lawyer Julie Lee was appointed by the OCL to provide legal representation for the children pursuant to s. 89(3.1) of the Courts of Justice Act. The timing of the appointment could not have been much better. A May 23, 2018 interview with D.M. led Ms. Gowdy to write this note:

[D.M.] told me about the incident at school, and that she will not go with her dad if he tries to pick her up again. We explored why she wouldn’t go. She stated that she is not comfortable with her dad, and that she is angry with him for leaving the family. She stated that if he returned home…she would spend time with him…

[159] A member of the LPS attended the school the following day. M.M.’s attempted pickup was going badly and the principal requested police involvement. An officer met with the children. He summarized their conversation in these words:

Both children advised that they were upset with their dad for leaving their mom, which is why they did not want to go with him. They also stated that they felt like dad’s home was not their home, which is why they are not comfortable going with him lately. The children did not express anything that led police to have concern for their safety…The children then stated that their dad loved them and they will go with him, but that they were hoping things will work out between mom and dad in the future.

[160] The officer then spoke with M.M. who, in turn, met the children privately. The officer noted that D.M. and S.M. “were then very excited to go shopping and for dinner at home with [M.M.].”

[161] Unfortunately, old attitudes soon resurfaced. Difficulties with the exchanges at school continued. Alternate arrangements had to be made. Initially, the parties turned to Merrymount for assistance.

[162] Shortly before attempted exchanges at that location started, the police were involved again. As agreed, M.M. attended the matrimonial home on June 7, 2018 to pick up some personal belongings. A.M. was not home. M.M.’s search for missing items caused him to enter the residence. He did not know that the security code had been changed and triggered the alarm. Police attended and advised the parties to resolve their dispute over entitlement to some of the personal property in court. According to the attending officer, A.M. said the parties had separated “because of infidelity on [M.M.’s] part”.

[163] D.M.’s relationship with Ms. Gowdy seemed to change around this time too. According to a June 14, 2018 clinical note, D.M. “was resistant to coming in the office at first”.

[164] Merrymount’s involvement lasted only a week. Services were provided from June 13 through 20, 2018. The sequence of events was always the same. M.M. arrived early and waited inside. A.M. and the children followed soon afterward and parked near a rear entrance where a worker awaited them. D.M. steadfastly refused to enter the building each time. On one occasion, S.M. came inside briefly to see his father. M.M. remembered polite conversation. A plan was made with S.M. to go and catch crayfish in the river. However, when the worker checked on him, S.M. wanted to leave. He said he had made a mistake. He left the building but returned to his father’s side minutes later. S.M. explained he was not going to go looking for crayfish with him. M.M. offered to telephone S.M. S.M. told him not to do so.

[165] After being told that Merrymount would no longer facilitate access given three failed attempts, other plans had to be made again.

[166] In July 2018, social worker Julie Heslop was assigned by the OCL to assist Ms. Lee in determining and then advancing the views and preferences of D.M. and S.M. Ms. Heslop explained the OCL process in an affidavit she adopted at trial.[^23] At para. 7, she deposed:

In order to ascertain our child clients’ views and current circumstances, it is the practice of the OCL to gather information through parental interviews…attending observational [sic] with the children in each of their parents’ homes…and generally at least three (3) private interviews with each of our child clients.

[167] I will come to the separate interviews of the children Ms. Lee and Ms. Heslop conducted in early August 2018 shortly.[^24]

[168] The record of access attempts in July comes largely from the text messages the respondent selected for production. On July 18, 2018, she wrote:

[M.M.] Given that you have not attempted access for the past three of your access days (July 2, 7 and 8) I am wondering if you plan to be present at access today (July 18, 2018) in Springbank Park at 5:30 p.m. Please let me know. Thank you.

[169] There was no response. That evening, A.M. sent another message:

Are you okay [M.M.]? I would really like for us to at least be able to communicate about the children. They are suffering greatly. I think Counselling [sic] is needed but there are barriers. You and I need to be in a good place to help them. How do we get there? I’ve made it clear that I do not want you to come home. Obviously they are still struggling. So now what?

[170] The respondent next suggested a July 21, 2018 access visit. Once again, Springbank Park was the location she proposed. She offered to sit on a bench while the applicant played with the children. A.M. added:

I know it is technically not your access weekend but I think we should try this ASAP.

[171] Soon afterward, the parties’ attention turned to D.M. who was reported to be throwing up. After a polite exchange concerning their daughter’s health, the applicant sent one message and the respondent answered with three. They are reproduced below:

M.M. - I think the park idea is a good one but I am out of town this weekend. Any evening next week would work.

A.M. - I had discussed the idea with the children and let them know I would suggest it to you. If you choose to be gone again (after being out of town last weekend during your access time) it may give the impression you don’t want to see them. Obviously it is your decision but given the circumstances I hoped you would want to try as soon as possible.

A.M. again - Do you want to arrange to see them tonight?

A.M. once more – [M.M.] Would you like to tell the children about this weekend not happening or would you like for me to?

[172] The evidentiary record does not include a responding or follow-up message.

[173] The OCL conducted initial interviews of the children on August 2, 2018. Ms. Lee and Ms. Heslop met with D.M. first. D.M. opened the conversation by saying that she did not want to be there. She said she felt forced to attend by her father even though her mother had said it would be a good idea to go.

[174] D.M. said she had seen her father the previous Friday but would not spend time with him. Ms. Heslop summarized the first meeting with D.M. as follows:

[D.M.] told us that she did not go with her father because she does not like that he has a girlfriend, that he left their home, is “forcing me to sell my house,” and is making her go places she does not want to go.[^25]

[175] At paras. 73 – 75 Ms. Heslop added:

[D.M.] told us that last weekend they were to be with their father, they did not go with him because they were “mad”. She said they had a “fit”, which [D.M.] described as screaming, crying, having a hard time breathing and feeling stressed out.

[D.M.] said she knows that she has to talk with her father and should spend time with him. Her mother tells her that she has to go and that it is good to go with her father, but she does not want to go. She said that her father is not pleasant to be around when he is angry but he has never hurt her.

[D.M.] said that there is nothing her father can do to heal their relationship. She is never going to forgive him. While she acknowledged that she used to miss him, she no longer does. She said, “It’s like, who needs a dad anyway?”

[176] S.M. was interviewed next. At para. 92, Ms. Heslop remembered:

[S.M.] shared with us that after our meeting, they were going to be meeting with his father at Springbank Park and then after they were going to Lego Land. They would be staying at a hotel. He explained that they had to meet with his father at 5:30 p.m., but since they usually don’t go with him, they will then leave for Lego Land. He said they would leave after his father “says it’s ok” and that they don’t have to go with him. [S.M.] said that [D.M.’s] friend and her mother, [D.M.], his mother and he would be going to Lego Land.

[177] During cross-examination, A.M. denied there was any such plan although S.M. may well have wanted to go to that destination.

[178] On August 21, 2018 the respondent was served with the applicant’s motion seeking, among other things, an order that the matrimonial home be listed and sold. D.M. met with Ms. Gowdy that day too. The social worker noted that they did not discuss the family situation.

[179] The following day the applicant again tried to exercise the rights of access he had been granted. This was the first of four recordings A.M. made in Springbank Park without M.M.’s knowledge that were played during the trial. In it, M.M. is heard making repeated efforts to convince the children to spend time with him. A.M. suggested the children get out of the vehicle and visit with their father. The word “no” is the one expressed by D.M. most often in response. At one point she told her father to “Shut up”. She added “You never were home, so we really didn’t ever have a fun time.” Later she said “Bye and I hate you. So mean.”

[180] “I hate you” was something S.M. said to the applicant on this occasion too. When asked why, he called his father a “dick”. Later S.M. said “You were never home. You were definitely never home…”

[181] A week later, Templeton J. made the order to which I have referred requiring the parties to retain Ms. DeVeto to provide parent-child reconciliation counselling. In her endorsement, the motion judge noted the applicant had served a motion seeking that relief in a timely fashion but the respondent’s lawyer “was unable to obtain instructions in time.”

[182] Another access visit was attempted and recorded by A.M. later that day. Once again, things did not go well. S.M. told M.M. to “Go away”. When asked why she didn’t want to do anything, D.M. said “That’s stupid of you. Like you know exactly why.” When M.M. answered, “No I don’t understand”, she replied “Like I’m so close to punching you in the face”. When told by her mother that she was not to punch anyone, D.M. said “I don’t f’ing care, mom. I don’t care.”

[183] The third recorded visit on September 5, 2018 was no better. The children did not respond when M.M. asked them about the first days of school. When A.M. encouraged the children to answer, S.M. said “This is getting fun.” D.M. added “Why does it matter to you?” Soon afterward, S.M. appeared to make a rude gesture and then added “F…. you asshole.” When M.M. mentioned reconciliation counselling, D.M. responded “No, we’re not going to counselling”. After repeating that statement a moment later, D.M. added “so I’m going to beat him up.” Expletives soon flew from her mouth.

[184] When M.M. told his young daughter to stop swearing and asked why she didn’t want to go with him, D.M. said “I’m not going and I don’t ever want to see your face again.” S.M. chimed in “F’in asshole. No, let’s run.” The issue of counselling was raised again. D.M. voiced her displeasure with that idea despite her mother saying “it’s gonna make you better, baby.” Near the end of the audiotape S.M. spoke again. “He’s a sure good dad”, he said sarcastically. When asked by his mother what he meant, S.M. added “You know how I said it in like a mean way.”

[185] The children were to be interviewed for a second time by the lawyer and social worker provided by the OCL on September 6, 2018. They planned to meet with the younger child first. However, when his older sister protested, S.M. asked that she go first.

[186] During their meeting, D.M. told Ms. Lee and Ms. Heslop that she was mad her father had a girlfriend and lied about it. She said swearing at him felt “necessary because he is doing a crappy job right now.” D.M. said she wished she did not have to see her father anymore. Ms. Heslop described what happened after the conversation with D.M. ended:

When [D.M.] came out of the interview, she took hold of [S.M.] by the face and whispered into his ear. [S.M.] told her to stop talking in his ear. He then climbed onto his mother’s knee and refused to come in to speak with us. He remained on his mother’s knee and clung to her, repeatedly saying he was not going to meet with us. After a few minutes, Ms. Lee asked [S.M.] if he would agree to come back and he agreed. That ended the attempt to interview [S.M.].

[187] The fourth recording in Springbank Park was made by the respondent the following day. During the short interaction on September 7, 2018, S.M. threatened to scratch and then punch M.M.’s face. D.M.’s attitude toward her father is summed up in two excerpts. She said “I’m not going. Like I’m sorry…I can’t deal with this shit.” At the end of the recording S.M. added, “Because all I really care about is hanging out with my girlfriend. Asshole.”

[188] M.M. testified that September 19, 2018 was another infamous day. The Honourable Justice J. George had made two orders that morning. In the first, he granted the motion of A.M.’s solicitor to be removed from the record. In the second, the judge ordered that the parties cooperate in listing and selling the matrimonial home despite the respondent’s opposition.

[189] An access visit was to occur in Springbank Park that afternoon. The applicant said the respondent was enraged and asked him, in front of the children, whether he was going to tell them what he had done. He said D.M. was furious when he refused to tell her what A.M. was referring to. When asked in cross-examination whether she had recorded that interaction, A.M. said she would have to check five electronic devices in order to answer the question. Later and without prompting, A.M. told the court she had turned on the record function each time the parties met in that location.

[190] In a text sent soon afterward, M.M. advised A.M. he had accepted advice he had received and would not be pursuing access “until Paula DeVeto has had an opportunity to start the healing process through her counselling.” It is common ground that ten months passed before the applicant saw the children again.

[191] Unfortunately, despite significant efforts by many people, the relationship between M.M. and the children has not improved one iota despite the involvement of Ms. DeVeto and the OCL.

[192] The order appointing Ms. DeVeto required the parents to “fully cooperate in the reconciliation counselling process as recommended” by the counsellor.

[193] As a first step, Ms. DeVeto asked the parties to review with their counsel and execute a standard form Family Treatment and Intervention Agreement. The document was signed by A.M. and M.M. on September 19 and 24, 2018 respectively. In paragraph 1 the parties agreed:

…that the objective of this counselling is not to determine IF it is in the children’s best interest to have contact with one of the parents. Rather, the parents agree that it is in the children’s best interests to have meaningful relationships with both parents. [Emphasis in original][^26]

[194] The appointment of Ms. DeVeto caused the OCL to suspend its efforts.

[195] In an October 1, 2018 clinical note Ms. Gowdy noted that:

[D.M.] stated that she no longer has to have visits with her dad at the park, and she is happy about this…She told me that she is sad that they may have to sell the house.[^27]

[196] Ms. DeVeto prepared two reports. On consent, they were made numbered exhibits at trial.[^28] Ms. DeVeto also testified. Sadly, the highwater mark of her involvement was the signing of the initial agreement. Ms. DeVeto places responsibility for the failed attempt at reintegration on A.M.’s shoulders.

[197] The counsellor maintains that the respondent made no effort to cooperate in the process. Ms. DeVeto alleges that:

i. A.M. never submitted the required intake form despite at least one follow-up request. A.M. insists she did so;

ii. A.M. did not provide consents to the release of information the counsellor requested. Examples include the CAS and A.M.’s counsellor Deborah May. A.M. says all requested consents were provided;

iii. A.M. did not pay anything on account of Ms. DeVeto’s fees despite a contractual obligation to pay a proportionate share based on income. A.M. said she never received any of Ms. DeVeto’s billings.

[198] A number of goals were set forth in the Family Treatment and Intervention Agreement. They included facilitating the court ordered parenting time and working with the parents and children in order to identify and separate the needs and views of each child from those of the parents. To that end, Ms. DeVeto met with the children and A.M. at their residence on November 15, 2018. An informal discussion took place around the kitchen table. A.M., D.M. and S.M. were present. The last paragraph of Ms. DeVeto’s description follows:

[D.M.] recounted how prior to the parents’ separation she had called her dad at night and he never answered the phone. She said she would say don’t leave again and he would never listen. While sitting at the table [S.M.] commented “screw him”, referring to his father. [A.M.] did not correct [S.M.] for speaking about [M.M.] in this manner. [D.M.] got up from the table followed by [S.M.] and they went upstairs. Prior to leaving the home [S.M.] threw a paper airplane down the stairs that said “I hate her”, referring to this counsellor. When questioned by [A.M.] [S.M.] said [D.M.] had written it. [A.M.] did not follow through with addressing this behaviour.

[199] I pause here to note that the respondent said that she did, in fact, address the issue after Ms. DeVeto’s departure. That was consistent with her approach, namely, to discuss behavioural issues with the children privately.

[200] One-on-one interviews of the children were scheduled to occur four days later at Ms. DeVeto’s office. The counsellor met with D.M. first. The parties’ daughter spoke negatively about her father. She said he had taken items from the home, gone through her bedroom, set off an alarm in the home that required A.M. to leave a school field trip, was often not home and always on his phone when there, had tried to sell the house, had kissed a girl in her presence before separation and had a photo of his new girlfriend in the bedroom of his current home.

[201] When Ms. DeVeto suggested that children need both parents, D.M. said she did not want to talk anymore and left the room. While in the waiting area with her mother and brother, D.M. expressed dissatisfaction with the OCL. She claimed the first appointed lawyer was trying to get D.M. to say, “bad things about mommy.” Although efforts were made, Ms. DeVeto was unable to interview S.M. that day.

[202] The respondent returned with the children on December 5, 2018. However, they would not leave their mother’s side. Ms. DeVeto’s version of what next happened follows:

[S.M.] told this counsellor to “stop it” repeatedly and said “I don’t like you”. The children verbalized not wanting to be present and their desire to go home. A.M. did not intervene to address [S.M.’s] behaviour despite the child raising his voice. [A.M.] looked at this counsellor, expressed concern about this counsellor’s body language and said “if you have a problem with me you better tell me.” This counsellor told the children it was up to their mother whether or not they left the office because their mom and dad had decided together that they would attend. [A.M.] looked at this counsellor and said quietly “I was court ordered to be here”.

[A.M.] looked at [D.M.] and asked her a steady stream of questions without pausing. She inquired is it because daddy kissed [C]? Called you a liar? Was going to see [C]? Would snuggle up with mom? Be in bed with mom? [D.M.] acknowledged her mother’s statements by shaking her head yes and began to cry…

[203] Ms. DeVeto said she found the balance of that day’s conversation with A.M. concerning. With the children present, the respondent raised matrimonial issues, complained about the applicant’s spending habits, interrupted an interaction between the counsellor and a briefly re-engaged D.M. and mentioned a civil action the paternal grandfather had started against her. After the children left, A.M. asked Ms. DeVeto questions about the applicant’s relationship with his new partner.

[204] That brings me to the one recording the applicant secretly made. M.M. received an unexpected call from A.M. in the middle of the night on December 9, 2018. A long conversation followed. Once again, the audio was played with the consent of both parties. It opened with A.M. saying:

You and I need to come to an agreement for the children. I don’t give a flying fuck about [C] or any of them but I need you to know that [D.M.] and [S.M.] will never be okay with her. So if you decide that you are in love with her and that you want to be with her forever, you are choosing her over them.

[205] Soon afterward, the applicant asked the respondent to let him see the children. The exchange continued:

A.M. It has nothing to do with me not letting you see the kids.

M.M. Yeah, it does.

A.M. It has everything to do with you not choosing to see the kids.

M.M. So, what do you mean?

A.M. If you…wanted to see your kids, then you need to own up to what you’ve done.

[206] Soon afterward, she said:

If you are telling your kids that you don’t love me and that you don’t want to be with me, is that working for you? Are you…seeing your children?

[207] After telling M.M. that she had moved on, the conversation continued:

M.M. Okay, perfect. So, we have both moved on, so why is it an issue?

A.M. No … Except for what you are not understanding is that I have moved on with somebody who didn’t actually destroy their family. Okay? What you’ve done is you’ve moved on with somebody who actually destroyed their family. So you should probably talk to your kids about that, okay?

[208] After the applicant asked repeatedly how to make things better for the children, A.M. responded:

You fucking look them in the eye and you fucking apologize to them and you tell them how shitty you’ve been. Because that’s the reality of it. You chose selfishness over them.

[209] A little later the applicant denied the respondent’s allegation that he had cheated on and lied to her. A.M. then said:

I’m trying to fucking help you, [M.M.]. I will hang up this phone right now and you can deal with this shit with Paula [DeVeto]. But I am pretty sure she’s made it clear to you that without me, this is not going to move forward. Without my help, you are not going to see your fucking kids. So, start there... Do you want to do right by your kids? Start there.

[210] The role of C in the applicant’s life was mentioned frequently. The respondent’s position concerning M.M.’s new partner is captured by this exchange:

M.M. – Okay. So then just let the kids be with me because I miss them and I love them.

A.M. – No. They don’t want to be with you. That’s what you’re not fucking getting. They don’t want to be with you…You are dead to them…So I am trying to help you to build a relationship with them. Because in their world, you don’t fucking exist.

M.M. – You’re crazy. My kids remember that they love me.

A.M. – No, they don’t actually.

M.M. – Yeah, they do.

A.M. – They don’t. They’ve gone to counselling. They have gone to their teachers. They have gone to everybody. They don’t actually remember anything other than the fact that their dad fucking left them for some 24 -year-old fucking slut bag who wanted to destroy their family.

[211] About a half hour into the conversation, there was this exchange:

A.M. - We have been waiting, hoping that you will do the right fucking thing so that it doesn’t affect your relationship with them. But I can’t wait forever... If you are going to continue to choose her and to choose [C’s family] and to choose Parkhill [Ontario] over our children, then bye-bye. There is no reason for me to continue to hold on for this.

M.M. - Okay

A.M. - …[D.M.] and [S.M.] will never be okay with [C]. They will never, ever, so long as they live, be okay with her. She will always be the reason you left us.

[212] Shortly before final sign off the following things were said:

M.M. - Who took them down to the pond? I did. Who took them to the river? I did.

A.M. - …Every fucking chance I get, I take them down to the pond.

M.M. - Okay. You know what? They are going to miss me.

A.M. - Every chance I get. And guess what?

M.M. - I love them.

A.M. - Guess who is going to be…

M.M. - And I am always going to be here for them.

A.M. - Tucking them into bed…? Chris.[^29] Guess who is going to be playing ball with them? Chris. All of that you are going to fucking miss out on because of her. Is she worth it?

[213] The call ended shortly after 4:30 a.m. When asked about the disturbing interaction at trial, A.M. said that she was intoxicated at the time and had a limited recollection of what transpired.

[214] According to the written record, A.M. sent the applicant a long text a few hours after the parties terminated their conversation. It opened with the following:

If we are to work together for the children it is important for you to acknowledge and validate their feelings. As difficult as it will be to admit to things you did the children need to hear from you that you are messed up and are willing to make it right for them to move forward. What you are doing is not working.

[215] A little later A.M. added:

We need to talk about the children. Please answer your phone.

[216] The respondent then referred to the earlier phone conversation and the videos she claimed to have in her possession of M.M. “sexually, physically and verbally abusing” her. She acknowledged M.M. had told her to carry through with her threat to distribute them and added:

Once I send it it’s out there. You will be arrested for domestic violence and be taken to jail. You will have a charge and the entire process of you seeing your children will become even more complex.

[217] The applicant did not respond to those messages or the many others sent by the respondent later that day.

[218] The following morning, the respondent altered course. She sent images of the children’s report cards. There was a short but constructive exchange after which A.M. apologized for the earlier call and said it had occurred in “a moment of weakness.” In part she added:

You will probably try to use it against me somehow…because you really do seem to want to destroy me. Just like you promised you would do. But I just have one question. You said over and over that the kids will know the real me and hate me one day. Why would you want your children to hate their mother?

[219] Once again, M.M. did not respond. However, he met with Ms. DeVeto and played the recording for her. On December 11, 2018, the counsellor discussed the call with A.M. In her subsequent report, Ms. DeVeto noted that the respondent alleged the applicant had called her “a horrible person” and “a fucking psycho like your mother” during the recorded telephone conversation. Those words were not ones Ms. DeVeto remembered hearing. Indeed, they were not said.

[220] D.M. met with Ms. Gowdy on December 13, 2018. The social worker noted that D.M. asked that A.M. accompany her as “she is struggling with trusting the professionals involved in the court proceedings, as she feels that they ‘twist her words’.”

[221] On December 14, 2018 the CAS received an anonymous call expressing concern about A.M.’s conduct. An investigation commenced soon afterward.

[222] Ms. DeVeto had planned to hold a disclosure meeting that day. Concern that A.M. had not received the notice sent to her agent caused it to be rescheduled. The OCL sent an e-mail to A.M. advising her of the new date: December 17, 2018. A.M. failed to attend. At trial, the respondent denied knowing of the meeting.

[223] The applicant did not see the children during the 2018 holiday season. He received and commented on photos the respondent sent him. She acknowledged a neighbour had delivered gifts he had purchased for D.M. and S.M. M.M.’s request for photographs of the children opening their presents went unanswered. During cross-examination, the respondent said the gifts simply sat unopened.

(c) Post-Separation - 2019

[224] The results of the inquiry the child protection agency conducted were communicated to the applicant in a February 7, 2019 letter. Social worker Robyn Glen wrote in part:

Anytime parents engage in conflict, the children are at risk of emotional harm. Following the recent investigation, it has been decided that there was sufficient evidence to show that your children are being impacted by this conflict.

[225] In April 2019, the CAS provided a longer report.[^30] In part, the author wrote:

The Society worker attempted to meet with [D.M.] and [S.M.] privately and independently, but as the children were clearly uncomfortable, the worker met with them together; however, separate from their mother. Neither child disclosed any concerns regarding their mother. When asked about their father, both indicated that they did not want to visit with him but were unable to articulate why. [D.M.] said she was scared to see her father but would not say why. Both children denied that their mother had taken them to confront people and denied any concerns in the home.

[226] With respect to a later meeting, the writer of the CAS letter said:

[D.M.] and [S.M.] were not in agreement with the Society worker meeting with them at their school…When the Society worker asked [D.M.] what she meant when she said that she was scared of her father, [D.M.] stated that she was uncomfortable seeing him. When asked what made her uncomfortable, she stated “everything”, but would not elaborate. When asked what would make her feel more comfortable she said “nothing”… [S.M.] also stated that there was nothing that could make him more comfortable and stated that his father “destroyed” their family, but would not answer how, and walked away. It was noted that [A.M.] tried to encourage the children to meet with the Society worker.

[227] The Society’s conclusions were summarized in these terms:

Child protection concerns regarding children’s exposure to adult conflict, risk to child of mental/emotional harm or developmental condition resulting from exposure to adult conflict…were verified. Caregiver with a problem, caregiver has problem causing risk that the child is likely to be harmed was not verified. The Society recommended the family continue with their community supports to mitigate the risk, and the file closed at the investigation stage on February 7, 2019.

[228] Ms. DeVeto’s first report was dated February 25, 2019. Under the heading “Summary and Clinical Findings”, Ms. DeVeto wrote:

Due to the lack of contact with the children apart from [A.M.], it is presently unknown whether [D.M.] and [S.M.]’s refusal to see their father is at least partially based on their direct experience with him. What seems clear is that [A.M.] is negatively influencing the children against [M.M.]. It is understandable that the children were exposed to their mother’s grief following the separation; however, it is imperative that [A.M.] find a means of beginning to protect [D.M.] and [S.M.] from her own negative perceptions, experiences and possibly fears about the future.

[229] While the CAS investigation was ongoing, there was frequent e-mail communication between Ms. DeVeto and A.M. However, they never met to discuss the counsellor’s initial impressions. Ms. DeVeto says that demonstrated the respondent’s lack of commitment to the reintegration process. The respondent has a different view. She said she did not feel comfortable meeting with Ms. DeVeto on her own. She felt the counsellor was not objective. She wanted a third-party present too. A face-to-face meeting was never arranged.

[230] Earlier, I briefly mentioned that S.M.’s eighth birthday was in March 2019. M.M. had contacted Ms. DeVeto to see if a visit could be arranged. Ms. DeVeto and the respondent agreed that the applicant and S.M. would spend some time together the following day. The counsellor and paternal grandmother were responsible for pick-up and drop off at the former matrimonial home. Access was to be exercised at Ms. DeVeto’s office. M.M. was there awaiting his son’s arrival.

[231] Once again, A.M. secretly recorded the attendance. The discussion opened with S.M. saying “I don’t wanna go”. In response, his mother said “Okay, come on buddy. Put your boots on”. “I’m not going” was the answer she received. That position did not waver, let alone change, despite assurances from Ms. DeVeto and A.M. that the visit would not be a long one and that snacks and a present awaited him. The paternal grandmother’s efforts failed too. During the conversation:

(a) S.M. said that he did not like Ms. DeVeto or his paternal grandmother;

(b) S.M. alleged that his grandmother had twisted his words;

(c) When the paternal grandmother tried to engage D.M., she said “I’m not talking to you. This isn’t about me”;

(d) S.M. asked whether his grandmother remembered the time “you had to physically take me and [D.M.] into the” applicant’s vehicle and told her “that really hurt us”. At that point, D.M. joined in with “So maybe that’s the reason why we don’t wanna see you”;

(e) The paternal grandmother told the children several times that their father loved and missed them. On one occasion D.M. said “Well, guess what? I don’t love you two so I’m not forgiving you”;

(f) When asked whether he would like the gift his father had purchased for him, S.M. said “Yes, but you’re gonna physically make us go into the car, so I’m not”;

(g) When the grandmother said that she did not hear him, the respondent’s friend Kristen V. and A.M. interjected. The latter said “He’s scared to come to you and get the gift because he’s worried that you’re gonna physically take him is what he said.” The conversation continued:

Paternal grandmother - He didn’t say that.

A.M. - He totally said that…that’s exactly what he just said.

Paternal grandmother - That’s what I’m saying, I didn’t hear (inaudible).

Ms. DeVeto - But then you need to say to him that’s never gonna happen.

A.M. - But it did happen, right? It did happen. So, he’s going based on what actually happened before.

Paternal grandmother - Nobody tried to…

A.M. - I’m not arguing with you. You’re arguing and…

Paternal grandmother - No. Nobody ever tried to give him a gift…

A.M. - I’m not arguing with you. Thank you for coming. You’re more than welcome to stay trying.

[232] Soon afterward, S.M. received his gift and the visitors withdrew. The applicant did not see his son.

[233] On March 5, 2019 the applicant’s motion seeking, among other things, sole custody of the children was served on the respondent. The following day, the respondent was interviewed by the OCL for a second time. The OCL noticed that some of the background information provided by A.M. differed from that offered on the first occasion.

[234] The principal examples provided by Ms. Heslop were:

a) When first interviewed, A.M. said the parties had agreed to separate in June 2017. On the next occasion, she said she learned of M.M.’s intention to end the marriage when she received a letter from his lawyer on December 13, 2017;

b) In August 2018, A.M. told the OCL that while not perfect, D.M. and M.M. had a loving relationship. Several months later, A.M. said the children failed to develop an attachment to their father because he had so little involvement with him. At one point she said she thought M.M. loved the children and at another that she wasn’t sure whether he did or not;

c) There were no allegations of abusive behaviour at first instance. During the second meeting, A.M. alleged M.M. had been verbally, emotionally and sexually abusive and maintained that the children had witnessed some of M.M.’s misbehaviour.

[235] Ms. Heslop also recorded that the respondent made the occasional inconsistent statement. For example, despite an earlier representation that there was no connection between the applicant and the parties’ children, the social worker noted that A.M. later said that after M.M. left the home:

[D.M.] began drinking out of [M.M.’s] coffee cup because it made her feel closer to him. She also said that the children would pray, “please let [C.] give us back our dad”.

[236] Ms. Gowdy last saw D.M. on March 12, 2019. According to the clinical note:

[D.M.] was beaming and happy. She is having a good March break so far…She has not seen her dad and stated that she ‘never wants to see him’… [D.M.] spoke about not wanting to see her dad because he was never there to put her to bed, read her stories or play with her. She stated that her mother says she can go see her dad, and she won’t be hurt but [D.M.] stated that she doesn’t want to.

[237] The applicant’s motion and the respondent’s cross-motion were argued before Tobin J. on May 30, 2019. In the intervening period:

(a) Four calls were made to the CAS: one by the respondent on March 8, two by anonymous callers on March 18 and April 4 and one by a member of the applicant’s family on April 3, 2019. The CAS determined that none of them met the threshold for intervention;

(b) There were several court attendances resulting in temporary orders and/or endorsements of Henderson J. on March 13, 20, April 10, 24 and May 15, 2019.

[238] The March 13, 2019 court attendance deserves more detailed commentary. The parties were present. The case management judge’s order included terms: (i) requiring A.M. to cooperate with Ms. DeVeto and the OCL. With respect to the latter, the respondent was to “ensure the attendance and cooperation of the children at all interviews and observation visits”; (ii) directing that there be a two-hour access visit on March 16, 2019; and (iii) prohibiting the parties from recording “any interaction or conversation between them.”

[239] The paternal grandfather enters the story for the second and final time on March 16, 2019. He lives a short distance from the former matrimonial home. He was the person Henderson J. contemplated picking the children up from and returning them to A.M.’s residence. Once again, the respondent surreptitiously recorded the event.

[240] By now, the outcome was completely predictable. For a long time both children steadfastly refused to go despite (i) being told by their mother they had to accompany their grandfather. She gave them reasons that ranged from her own plan to go out, to the terms of a judge’s order; (ii) being promised by their grandfather the visit was only for a short time and that they would then return home; (iii) being assured by A.M. that the visits would get easier; (iv) being advised by A.M. that she would get in trouble if they failed to spend time with their father.

[241] Examples of responses from then ten-year-old D.M. included: “All the people in the world can ask me to go. I’m not gonna go” and “Dad scares me and he does really mean things to me and I don’t like it.”

[242] When asked to explain the latter comment, D.M. alleged her father had “said that he wanted my mother dead. That’s scary. That’s really scary.” Nothing said that day by anyone changed D.M.’s mind.

[243] S.M. did not participate in the conversation very much. However, he also said that he was not going to spend time with his father. Given the children’s refusal, A.M. said:

We probably just need to physically take them.

[244] During the conversation that followed, the paternal grandfather rejected that suggestion. Soon afterward, A.M. raised that subject again when she said:

Okay, well then you’re gonna have to physically take them because they’re refusing. So I can grab one and you can grab one and we can shove them in your car, because that’s where this is at. They have to go, so that’s the only option we have, right?

[245] Continued discussion was the path the applicant’s father continued to follow.

[246] Eventually, S.M. changed his mind and agreed to go provided his mother walked him over to his grandfather’s residence. The paternal grandfather had reason to be optimistic when he left ahead of A.M. and his grandson. Alas, S.M. did not arrive. According to A.M., second thoughts overtook him en route and S.M. scampered back to the sanctuary of his home.

[247] In a subsequent order, Henderson J. ordered there be another access visit on March 27, 2019. The applicant’s friend, Will S., was to meet the children at their school this time. Once again, access did not occur. The attempt was another resounding failure. D.M. and S.M. simply walked by the spot Will S. was instructed to wait. They headed for the school bus. They did not return. Will S. started sending texts to the respondent at 3:36 p.m. that day. In the final one, he wrote:

Just heard you are coming to get them and they are with the [learning support teacher].

[248] A.M. did not respond to any of the messages Will S. sent.

[249] As the case management judge had contemplated, the OCL asked for the opportunity to re-interview the children. This phase of the OCL’s work was to be completed according to an agreed upon schedule of interviews and observation visits during the month of April 2019.

[250] Interviews on April 3, 2019 at 5 p.m. were first on the calendar. Ms. Heslop’s first entry is indicative of what happened afterward.

On April 3, 2019, at approximately 4:55 pm, I heard [A.M.’s] voice mail message left on Ms. Landry’s mobile phone stating that the children were distraught about having to meet with us and were refusing to get into the car. They had been upset all week about having to come in to meet with us and had been crying for the past 45 minutes.[^31]

[251] The lawyer and social worker assigned by the OCL agreed to change course and went to them for an observation visit. Over time, D.M. “appeared to warm up”. S.M. “was willing to engage with us immediately.”[^32]

[252] That seemed to be a small step forward. Arrangements had already been made for the OCL to meet with the children privately and individually at Ms. Landry’s office on April 9, 2019. At about 4:30 p.m. that afternoon, the respondent called and said that D.M. and S.M. would not get in the car. The interviews did not occur.

[253] The matter returned to court the following day. It was agreed the OCL would return to the respondent’s residence on April 12, 2019. During the late evening hours of April 11, 2019, Ms. Landry received a text from A.M. The respondent wrote:

I’m writing to let you know that tonight the children and I were in a car accident. Everyone is physically okay, tense and sore. Emotionally we are shaken up and drained. I’m wondering what your thoughts are on tomorrow’s [appointment].

[254] The OCL returned to the children’s home on the 12th. Ms. Landry and Ms. Heslop learned that the minor motor vehicle accident involved A.M. backing into a cement pillar in an underground parking lot. No one was injured. Ms. Heslop’s account continued:

[D.M.] refused to speak with us without her mother present. She also refused to speak to us with her and [S.M.] together. [D.M.] said that there was nothing that we could do to make her feel more comfortable. [D.M.] said that when she talked with Ms. Lee, Ms. Lee had twisted her words. When Ms. Landry asked [D.M.] to explain how we were twisting her words, she became very angry and left the room saying, “I’m done, I’m done.” She then went up the stairs and I could hear her bang a door shut.

[S.M.] had been in the kitchen area with [A.M.], observing the exchange…After [D.M.] left the room…[S.M.] then came through the family room, also saying he was done and proceeded to go upstairs. Ms. Landry and I then left.

[255] Another attempt was made by the OCL a few days later. I return to Ms. Heslop’s description:

When [the respondent] asked the children who was going to meet with us first, [D.M.] said that she would not talk with us. [S.M.] than [sic] repeated [D.M.’s] words. [A.M.] tried to encourage the children by suggesting that [D.M.] go first. [D.M.] stood with her back to us and said that she was not going to talk with us. [A.M.] told [D.M.] that she was being rude, to which [D.M.] said she did not care. [D.M.] and [S.M.] then went out the kitchen patio door to the back yard.

[256] Ms. DeVeto’s second report was dated April 16, 2019. The social worker reported that at the time of writing, A.M. had not responded to a March 26, 2019 e-mail she had sent asking for dates in the following two weeks when the counsellor could meet with the children.

[257] In early May 2019, A.M. sent a multi-page e-mail to the applicant’s lawyer suggesting services “that will support the children during crisis.” They ranged from massage and therapeutic horseback riding to child custody evaluators. In her May 7, 2019 response, M.M.’s lawyer said in part:

…[M.M.] does not consent to beginning counselling or other services pending the May 30th motion. Given his belief that you are engaging in severe parental alienation, it is our position that it would not be appropriate to allow you to direct these services.

[258] A day earlier the children’s lawyer and social worker had returned to the home for a fourth time. On that occasion they limited their effort to interviewing eight-year old S.M. as ordered by Henderson J. two weeks earlier. The parties’ young son refused to meet privately but uttered one sentence about his father:

All I want to say is that dad is rude to me and I don’t want to live with him.

[259] According to Ms. Heslop:

[A.M.] tried to engage [S.M.] in conversation about how his day at school was and made numerous attempts to encourage him to talk to us. [S.M.’s] response was that he was not going to talk to us and he felt like vomiting.

[260] That brings us to May 30, 2019, the day the parties’ competing motions seeking interim custody were argued before Tobin J. Reasons dismissing both motions were released on June 5, 2019. Pending trial, the children were to continue to reside with their mother.

[261] Post-traumatic stress disorder had featured in the respondent’s submissions before Tobin J. In his decision, the motions judge made the following comments on that topic:

No evidence was presented that a healthcare provider has made such a diagnosis, even on a tentative basis. I can only conclude, at this point, it is the mother’s preferred diagnosis. It is in the children’s best interests that any diagnosis be provided by a healthcare provider who is qualified and independent.[^33]

[262] The order made by the motions judge included this term:

Pending the trial of this matter, the mother and father shall share decision-making responsibility regarding the choosing of a qualified and independent healthcare provider to assess, diagnose and recommend a course of therapy, if any, with the objective of the children enjoying a positive relationship with the father.

[263] D.M. and S.M. completed grades five and two respectively later that month. Their report cards contained some glowing remarks. D.M.’s teacher referred to her consistent enthusiasm, infectious energy and positive personality. Her brother was described as a sweet and kind boy.

[264] The OCL made a fifth and final effort to interview the children on July 4, 2019. Ms. Heslop testified that D.M. refused to speak while facing away from the social worker and Ms. Landry. She said the respondent spent several minutes unsuccessfully trying to coax S.M. to come downstairs.

[265] Late that afternoon, Ms. Landry e-mailed M.M.’s lawyer. She asked whether the parties had made any progress in identifying a health care provider who could fill the role contemplated by Tobin J.’s order. It is clear from the evidentiary record they had not.

[266] Two weeks later, the OCL’s unusual motion to be removed from the record was granted.

[267] On July 23, 2019, M.M.’s counsel tried to exercise the right she had been given to question the respondent. A.M. declined to answer a single inquiry. That was also the day the respondent met with social worker Kayla Gowdy and asked for a referral to a professional to explore symptoms of post-traumatic stress disorder in the children.

[268] Seemingly out of the blue, the respondent e-mailed the applicant late in the day on July 26, 2019. She proposed telephone contact with the children that evening and an in-person visit at the matrimonial home the following day. M.M.’s first response was sent after the time A.M. proposed. He said he had just seen the e-mail. It appears he tried unsuccessfully to reach the children by telephone soon afterward.

[269] The applicant and his friend T.J. attended the former matrimonial home the following day. In contravention of the court’s March 13, 2019 order, this visit was also secretly recorded by A.M.

[270] The attempt followed a familiar pattern. D.M. and S.M. refused to come to the door. They would not even say hello. S.M. asked his father to stop coming to the house. After the applicant told the children that he loved and missed them, the respondent said:

Do you want me to…like I bring them physically to the door and you can take them?

[271] The respondent did not respond to the question. Soon afterward, D.M. talked about being scared when people arrived at the door with packages. This exchange followed:

M.M. - Okay, well, I’m sorry that it scares you.

A.M. - She’s talking about the process servers…

M.M. - I know.

A.M. - You need to validate what she’s saying, not say that’s not something we need to worry about, right?

M.M. - It isn’t.

A.M. - If they’re kids, they’re scared. It’s scary for a stranger to come. So it’s…

M.M. - Honey.

A.M. - Do you want me to physically bring them to the door?

M.M. - No, I’m just…

A.M. - They’re saying they’re not coming.

M.M. - It was actually nice just to be able to talk to them for a sec.

T.J. - [D.M.], honey, your mommy and daddy love you guys.

D.M. - I don’t wanna hear anything…

T.J. - so much.

D.M. - You say.

T.J. - And your mommy and daddy are gonna work it out and it’s not something that you guys have to deal with right now.

A.M. - That a lie, right?

M.M. - [D.M.], I love you and [S.M.] I love you. Did they go upstairs?

D.M. - You’re just saying that.

A.M. - Can you come to the door please?

D.M. - No.

A.M. - Can you at least say goodbye then?

D.M. - No.

[272] When the applicant suggested a phone conversation, D.M. told her father that she did not want to speak to him.

[273] In a July 30, 2019 e-mail to the respondent, M.M.’s lawyer suggested that psychologist Dr. Dilys Haner of the London Family Court Clinic (the “London Clinic”) be retained to complete a psychological assessment of the children. Interestingly, that was the same clinic Ms. Gowdy had recommended to the respondent more than a year earlier.[^34]

[274] A.M. responded on August 12, 2019. She suggested the parties participate in counselling offered without cost by Family Services Thames Valley. The respondent also asked M.M.’s lawyer to explain why she had sent a copy of Tobin J.’s order to the London Clinic without her consent.

[275] While that aspect of the matter stalled there, the respondent also suggested the parties use a parenting app. The court was told that M.M. and A.M. have communicated from time to time in that manner. Text exchanges during the period from August 22 to September 11, 2019 were entered as exhibits. Civil messages were sent by the parties concerning a visit D.M. had made to the hospital on August 22, 2019 and the commencement of the 2019-2020 academic year.

[276] By the time the trial ended, nothing had changed. As mentioned earlier, the applicant attempted to wish D.M. a happy eleventh birthday during the trial. She would not speak to him when he called and refused to come to the door when the applicant tried to deliver a birthday card the following day.

6. The parties’ plans for future care and requested relief

[277] The relief sought by M.M. has already been summarized. He seeks sole custody, with the respondent having no communication with or access to the children for several months. During that period, the applicant proposes to provide weekly updates concerning the children using the parenting app.

[278] M.M. would prefer that the children remain at their current school but does not live in its catchment area. If that is not possible, he proposes to enroll them in the public school that services his district.

[279] Given the nature and hours of his employment, M.M. proposes that the children be enrolled in before and after school programs. His mother and other family members are willing to assist with child-care and transportation. The maternal grandmother is a retired kindergarten teacher. She has agreed to move into her son’s residence for as long as may be required.

[280] In light of the attitude of the children to C, the applicant’s new partner would move out of the residence and live elsewhere for as long as is necessary. A.M. proposes that reconciliation counselling continue with Ms. DeVeto. Recommendations she makes concerning the introduction and integration of C into the lives of D.M. and S.M. will be adopted.

[281] The respondent proposes that custody of the parties’ children be shared. However, after “meaningful consultation”, A.M. will have decision-making authority. The current living arrangements shall continue. The children will also remain enrolled in their present school. Reintegration is to occur in accordance with the recommendations of a “medical doctor who practices as a licensed child psychologist” [sic]. Following that process, the applicant will generally have a two-hour access visit each Wednesday and alternate weekends starting Friday evening until late Sunday afternoon. Additional provisions have been crafted by the respondent to deal with access during holidays and on special occasions.

7. Analysis and decision re Custody and Access

I. The statutory framework

[282] Section 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) is devoted to orders for custody and access. The court is given jurisdiction to impose a wide range of orders. In making that determination the presiding judge must be mindful of three subsections. Section 16(8) through (10) read as follows:

(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 conditions, means, needs and other circumstances of the child.

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

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.[^35]

[283] Provincial legislation is relevant too.[^36] The phrase “best interests of the child” is also an integral part the Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(1). Section 24(2) of that statute requires consideration of “all the child’s needs and circumstances”. The subsection includes a non-exhaustive list of specific factors such as the love, affection and emotional ties between the child and each person claiming custody, the child’s views and preferences, if they can reasonably be ascertained, the plan proposed for the child’s care and upbringing by each person seeking custody or access and the ability of each person claiming custody to act as a parent.

[284] Under provincial legislation, past conduct is to be considered in two situations: (i) first, if otherwise relevant to the person’s ability to act as a parent; and (ii) second, in assessing the person’s ability to act as a parent if that person has acted at any time in a violent or abusive manner in relation to a spouse or child: ss. 24(3) and (4).

II. Existing Jurisprudence

[285] As is clear from the statutory language, the best interests of the children guide the court’s analysis, conclusion and ultimate disposition. As Pazaratz J. wrote in Jackson v. Mayerle, 2016 ONSC 72 (S.C.J.) at paras. 611 - 612:

Custody trials are not about attributing blame or commendation. Not about punishment or reward.

Any assessment of the best interests of the child must take into account all of the relevant circumstances…Any reference to behaviour of the parents must be in relation to each parent’s ability to meet the child’s needs. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parties.[^37]

[286] In the course of her thoughtful and extensive reasons in Young v. Young, [1993] 4 S.C.R. 2 at p. 100, L’Heureux-Dubé wrote:

The best interests of the child must be approached from a child-centred perspective. It is not simply the right to be free of significant harm. It is the right of the particular child in question to the best possible arrangements in the circumstances of the parties, taking into consideration the wide spectrum of factors which may affect the child’s physical, spiritual, moral and emotional well-being and the milieu in which the child lives.[^38]

[287] The court’s objective is to “choose the course which will best provide for the healthy growth, development and education of the child[ren] so that [they] will be equipped to face the problems of life as a mature adult.”[^39]

[288] In Young v. Young, supra McLachlin J. (as she then was) cautioned that the court must be mindful of but not blinded by the statutory goal that the children of estranged parents maintain an ongoing relationship with each of them:

By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase “as is consistent with the best interests of the child” means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent.[^40] [Emphasis in original]

[289] The fact parents are no longer able to co-exist does not give either of them licence to involve their children in the dispute. The expected standard and the consequence of engaging in substandard behaviour were addressed by Chappell J. in Jackson v. Jackson, 2017 ONSC 1566 (S.C.J.) at para. 59, when she wrote in part:

…it is a well-established principle that the best interests of the child are generally fostered by ensuring that children have a loving relationship with both parents, and that such a relationship should only be interfered with in demonstrated circumstances of danger to the child’s physical, emotional or mental well-being…If one parent does not facilitate a child’s relationship with the other parent, or improperly undermines that relationship, this will be an important consideration in determining their ability to meet the child’s needs…[Citations omitted][^41]

[290] The foundation for the applicant’s position in this case is the allegation of parental alienation. M.M. maintains that it is in the best interests of the children to have a relationship with him. While their expressed wishes are acknowledged, the applicant argues they are not a product of free and independent thought. Rather, they come from ill-will planted, fertilized and cultivated by A.M. The respondent denies the allegation. She says D.M. and S.M.’s feelings are a genuine result of the way in which the applicant has acted or failed to act in relation to the family generally and them specifically.

[291] According to psychologist Dr. Richard Warshak, parental alienation has three essential elements. They have been summarized as follows:

First, there must be a rejection or denigration of a parent which exists as a persistent response to that parent. Second, the rejection must be irrational, and not a response to the rejected parent’s actual behaviour. Finally, the rejection must exist at least partially as a result of the favoured parent’s influence.[^42]

[292] The requirements were described a little differently in Fielding v. Fielding, 2013 ONSC 5102 (S.C.J.). In that case, Mackinnon J. referred to the evidence of Dr. Amy Baker, Ph.D. In Dr. Baker’s opinion, alienation is established if four conditions are met: (i) there was a prior positive relationship between the child and the rejected parent; (ii) there is an absence of evidence of abuse by that parent; (iii) the evidence supports a finding that the preferred parent has adopted alienating strategies; and (iv) the child exhibits behaviours of a child who has been alienated.[^43]

[293] The applicant bears the onus of proving that the respondent’s conduct is, in whole or in part, at the root of D.M. and S.M.’s animosity toward him. The allegation is a serious one. Nonetheless, the standard M.M. must meet is a balance of probabilities. Writing on behalf of the court in F. H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 45, 46 and 49, Rothstein J. explained the trial judge’s task and the standard of proof in civil cases:

[45] …I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.

[46] Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency…As difficult as the task may be, the judge must make a decision…

[49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

[294] Decisions addressing allegations of alienation are highly fact specific.[^44] No situation exactly matches another. However, some general principles emerge from the authorities. They include:

a) Parental alienation describes a pattern of conduct by one parent which has the effect of causing a child to unjustifiably reject the other;[^45]

b) Alienation is a form of child abuse;[^46]

c) In alienation cases, the concern is that the apparent preferences of a child concerning the rejected parent are simply a vicarious expression of the sentiment of the preferred one[^47] and therefore, should be given little or no weight;[^48]

d) Expert evidence is often introduced on the issue but is not an essential prerequisite to a finding of alienation;[^49]

e) A conclusion that a parent has engaged in a pattern of alienating behaviour may follow evidence of conduct that involves, among other things: (i) badmouthing; (ii) creating the impression that the other parent is dangerous; (iii) providing the child with information that is personal or which relates to the litigation; (iv) asking the child to spy on the other parent; (v) cultivating an atmosphere where the child is dependent on the preferred parent and the authority of the other is undermined;[^50]

f) Responsive behaviour of a child that evidences the influence of the preferred parent may include: (i) an absence of rational reasons for rejection; (ii) lack of ambivalence concerning the rejected parent; (iii) spurning members of the rejected parent’s extended family; (iv) reflexive support of the alienating parent.[^51] As Perkins J. wrote in S.(C.) v. S.(M.), 2007 CanLII 6240 (ON SC), [2007] O.J. No. 787 (S.C.J.) at para. 92:

Children who are subject to parental alienation syndrome (I will call them PAS children) are very powerful in their views of the non-alienating parent. Their views are almost exclusively negative, to the point that the parent is demonized and seen as evil…PAS children feel empowered and are rewarded for attacking the other parent and feel no remorse or shame for doing so…PAS children have a knee jerk, reflexive response to support the alienator against the targeted parent, often on the basis of minimal evidence or justification. PAS children broaden their attack to encompass members of the other parent’s extended family…PAS children are recruited by the alienating parent and alienated siblings to the alienating parent’s cause…With PAS children, you cannot be sure who you are listening to – is it the child, is it the alienating parent…?;

g) A finding of “pure alienation” is appropriate if the child’s attitude toward the rejected parent is entirely the product of the wrongful conduct of the preferred one;[^52]

h) A case is “mixed” if the child’s response is a product of a variety of circumstances. For example, in Fielding v. Fielding, supra at para. 150, Mackinnon J. said there were “many factors arising before and after separation contributing to the overall dysfunction and relationship issues”. Some of them related to the conduct of the rejected parent;

i) In still others, the court has stopped short of finding alienation even though one parent “has played a significant role in the extreme rejection…by the children” of the rejected parent.[^53]

[295] While it should be obvious, a parent who engages in tactics designed to unjustifiably turn a child against the other is not acting in the child’s best interests. In fact, such behaviour is detrimental to the child’s well-being.

III. Has there been alienating conduct?

[296] I have carefully considered the extensive testimony and the dozens of numbered exhibits introduced by the parties on consent.

[297] It is absolutely clear from the evidentiary record that D.M. and S.M. have loudly, unequivocally and repeatedly declined to have any relationship with their father. They do not want to hear his voice, let alone see him in person anywhere or at any time. The expressed state of mind of the children insofar as their father is concerned is crystal clear. At no time did any of their comments or responses to questions posed seem, on their face, rehearsed or insincere.

[298] The need for objective third party involvement was recognized by the parties and the court early on when the assistance of the OCL was requested in an April 18, 2018 order.

[299] The OCL appointed a lawyer to act for the children and a social worker to assist her in an effort to ascertain their views and preferences. The OCL was unable to complete its task despite a concerted effort over a lengthy, albeit interrupted, period of time.

[300] The applicant’s inability to implement the temporary access arrangement caused him to seek the appointment of a reintegration counsellor while the OCL’s efforts were ongoing. Ms. DeVeto accepted the challenge of assisting in rehabilitating the broken relationship between father and children. No one would place this case in the success column.

[301] While contacted periodically, the CAS became actively involved as a result of allegations made in late 2018. The Society formed the view the ongoing dispute between the parties put the children at risk of emotional harm. However, it was unable to attribute blame.

[302] While imperfect, the trial process has given me information and opportunities, the social worker, OCL and CAS have not had. In my view, the chronology brings the alienation issue into focus.

[303] I begin with the pre-separation relationship between the parties and their children.

[304] Many of the witnesses provided favourable comments concerning the respondent and her parenting style.[^54] Caring, loving, nurturing, supportive and attentive are some of the descriptors that were used.

[305] Perhaps surprisingly, the applicant provided a mostly favourable review of the respondent’s skill as a parent. The strength of the bond between A.M. on the one hand and the parties’ children on the other, even before separation, was acknowledged by him. There is no reason why that relationship should not have continued to be very close post-separation.

[306] Unquestionably the respondent loves and is devoted to D.M. and S.M. She is capable of being a wonderful parent.

[307] What about the applicant? Some[^55] but not all[^56] of the witnesses the respondent called supported the proposition that M.M. was an uninvolved father. When interviewed by the OCL for the second time on March 6, 2019, the respondent suggested there was very little connection between the children and the applicant.

[308] M.M. spent comparably little time with the children. Concrete work is seasonal. The success of his business meant M.M. had to work long hours when weather allowed. The family’s financial position and the fact he was its only income earner, necessitated the search for gainful employment during the off-season.

[309] As well, M.M. is clearly passionate about hunting and fishing. Even while the parties were together, the applicant was away from home a lot.

[310] I agree with A.M. that M.M.’s absences were, at times, excessive, even during the period before 2017. Periodically, perhaps even frequently, the applicant’s hobbies were given a priority they did not deserve.[^57] However, after considering all of the evidence, I am well satisfied that D.M. and S.M. had a meaningful, loving and happy relationship with their father as the page turned on 2016. To be clear, at that time, there wasn’t the slightest hint of what was to come.

[311] What about 2017? It is undisputed that the applicant was away even more during that calendar year, including most weekends.

[312] I accept A.M.’s evidence that the applicant could no longer be counted on to answer his phone. The widening of the chasm between the parties was clearly and understandably hard on the respondent. I have no doubt that it preyed on the children too, particularly D.M.

[313] While, for the most part, I found the applicant to be a truthful, reliable and importantly, fair witness, there is one area where I do not accept his evidence. That involves C. Contrary to his testimony, I am satisfied the relationship started pre-separation and that D.M. did, indeed, see her father demonstrate his affection for his new romantic interest in September 2017. That experience and the conversations and argument that followed would have detrimentally impacted the parties’ daughter, at least in the short-term.

[314] Undoubtedly, too, the applicant and respondent said things they should regret during the last few months of their time together. However, M.M.’s behaviour did not fall anywhere close to the level the respondent described.

[315] The children were not immune from the deterioration in the parties’ marriage.[^58] Nonetheless, based on the entirety of the evidentiary record, I am satisfied the positive relationship between father and children continued up to and including M.M.’s departure from the matrimonial home in late December.

[316] That brings me to the period post-separation.

[317] The children had reason to be upset. Their father had left. His decision was final. That was a most unwelcome development.

[318] D.M. and S.M. remained in the matrimonial home with their mother. A.M. said she fell apart after separation. She alleged M.M. was not helping out financially.[^59] That was not accurate. However, M.M.’s income was insufficient to support two households. After a decade at home, it became economically imperative that A.M. return to the work force. She was dealing with the aftermath of her mother’s cancer diagnosis. The respondent said she could not keep food down and was losing weight. She could not sleep. Emotions overwhelmed her. She said S.M. often tried to comfort her. I accept all of that evidence. The text messages exchanged with Julie G. support those assertions.

[319] D.M. and S.M. have always cared deeply for their mother. Her vulnerability deepened their sense of loss, fueled their desperate desire that M.M. make things “right” and fed their anger and disappointment when he did not do so.

[320] A.M.’s friend K.V. testified at trial. According to K.V., the respondent periodically told the children in her presence that their father loved them. The witness described times A.M. encouraged them to remember happier times. I am satisfied that occurred, although not often.

[321] I return to the exchange of text messages between A.M. and Julie G. On January 6, 2018, the respondent told her friend the children wanted nothing to do with M.M. That was the same day the respondent told Julie G. she had learned of his affair. That disclosure strongly suggests A.M. spoke to the children about her discovery. So, too, does the evidence of Julie G. According to her testimony, she visited the respondent that day. It was clear from what she saw and heard that A.M. had spoken to the children about their father’s conduct and that they were very angry with him.

[322] There is no indication in the record that the applicant raised the issue with the children. In fact, in a later text to Julie G., A.M. acknowledged M.M. had said nothing to D.M. and S.M. concerning a new romantic partner.[^60]

[323] A week later, A.M. told the same friend the children were begging her to bring their father home. Soon after that, there was a brief period of optimism. It was dashed when the respondent made an uninvited visit to M.M.’s residence in Komoka and found C there. As mentioned earlier, she reported being “devastated”.

[324] During the trial, A.M. said M.M. visited the children every day during the week of February 5, 2018. However, in a February 16, 2018 text, A.M. described M.M.’s behaviour as “disgusting”. She said D.M. “refuses to spend time with him” and that S.M. was “done” with his father.

[325] Despite understandable feelings of anger, frustration, embarrassment and sadness, A.M.’s texts to Julie G. evidence the fact she was still hopeful that, in time, the family would reunite. To that end and despite comments made to her friend, the respondent encouraged the applicant to visit the children in their home.

[326] In this timeframe A.M. also seemed to slowly and reluctantly accept the fact the applicant might exercise access elsewhere. She offered M.M. overnight access with D.M. and S.M. in Woodstock, Ontario. However, that willingness was qualified by the words “if we could convince them”.[^61] In fact, the children were never in their father’s care for that length of time.

[327] A.M. kept the children close before separation. She has done her very best to keep them even closer since. During his testimony, M.M. said the respondent was controlling. Indeed, she is. It is clear from the evidentiary record that she has only encouraged a relationship between the applicant and the children if pursued on her terms.

[328] That is why access rarely occurred outside the home immediately following separation. It also explains the respondent’s treatment of the paternal grandfather, P.M. In late February 2018, P.M. sent A.M. an e-mail extending a dinner invitation to the children to celebrate S.M.’s upcoming birthday. In her reply, A.M. asked that she be included. Alternatively, she wondered whether the get-together could occur at her house where “the kids feel safe and comfortable”. A.M. was anxious that the children’s time with anyone close to M.M. be spent in circumstances she could observe and, if necessary, control. The paternal grandfather recognized that and withdrew his offer.

[329] March 2018 was also a significant month. That was the one and only time M.M. took the children shed hunting post-separation. M.M. said it was a wonderful day. They found a deer antler. They talked about the rooms the children would occupy when visiting the Komoka residence. Plans were made to spend time together again the following day.

[330] M.M. told the court that A.M. met him when he arrived and said the children had changed their minds.

[331] The respondent offered a different version. She said the outing ended because D.M. and S.M. wanted to go home. The children had never agreed to spend time with their father away from their residence the following day.

[332] I do not accept A.M.’s evidence on this point. I am well satisfied the excursion went well. Too well from A.M.’s perspective. That is why the father’s attempt to pick up the children the next day was unsuccessful. D.M. and S.M. never accompanied M.M. in the search for discarded antlers again. In fact, that was one of the last occasions the applicant spent quality time with his children.

[333] March 21, 2018 was the first attempted access visit A.M. recorded. It was an unmitigated disaster. D.M. told her father he “fucked up”. That could only have been a reference to M.M.’s decision to become romantically involved with another woman.

[334] Soon afterward, she told her father, “I want to do things with you…in my house where I feel comfortable.” That wording was similar to the phraseology the respondent had used in the text sent to the paternal grandfather in late February.

[335] The level of the respondent’s concern is evidenced by the strange call she made to the LPS on March 22, 2018. There was no incident to report. She sought advice. The prospect of M.M. picking the children up from school the next day was her stated concern. According to the occurrence report, she did not want that to happen. M.M.’s affair was mentioned. So, too, was the “new girl” and A.M.’s concern that her children not see her as “it would be emotional” and “traumatic”.

[336] The call to the police was entirely unnecessary. There was nothing the applicant said the previous day which warranted criticism, let alone the involvement of the state. However, the respondent’s reaction is telling. So, too, is the information the respondent conveyed. In my view, A.M.’s primary, if not exclusive concern, was not for the children but herself.

[337] This proceeding started on March 28, 2018, seven-days after members of the LPS visited the applicant in Komoka. Given the respondent’s position, the applicant was required to bring a motion seeking interim access.

[338] The commencement of this proceeding and the subsequent motion forced her hand. A.M. consented to an order that contemplated pick up at school. Yet, nothing had happened after March 21, 2018 which made that term acceptable to her. A.M.’s “consent” to McArthur J.’s temporary order, was not a product of agreement but resignation.

[339] Her true state of mind is reflected by the fact school pick-ups: (i) were always a source of drama; (ii) were rarely successful; (iii) never moved the father-child relationships forward; (iv) never resulted in M.M. enjoying the periodic overnight access to which he was entitled; and (v) were something A.M. found almost impossible to bear. The latter point is evidenced by the clinical notes of Ms. Gowdy. She documented D.M.’s appointment in early May 2018. D.M. reported finding her mother “upset and throwing up” following one of the few access visits that did occur.

[340] Occasionally, A.M. offered an alternate date and time. However, the invitations involved attendances at the former matrimonial home or a neutral location that would effectively control what M.M. could do with the children and when.

[341] Eventually the school refused to serve as M.M.’s initial point of contact. Things did not go any better at Merrymount. The shell surrounding D.M. continued to be impenetrable. A small crack in S.M.’s defences was briefly visible. He made a short-lived decision to spend time with his father but reversed course within minutes. S.M. said he had made a mistake to make plans with his father. They were cancelled. The offer of a subsequent call was declined.

[342] Not a single, positive word can be said about the experience in Springbank Park. The audiotapes of the attempted access visits on August 22, 29, September 5 and 7, 2018 are universally disquieting. The children were beyond rude. They were cruel.

[343] I recognize that the respondent is occasionally heard encouraging the children to spend time with their father. However, she knew that a recording device had been activated. He did not. Despite the conduct of his children, the applicant acted with restraint that was commendable, even admirable.

[344] Meanwhile, A.M.’s “encouragement” was not, in my view, sincere. If the respondent truly wanted to facilitate access, she would not have surreptitiously recorded the interactions. Evidence was being gathered. The exercise was a tactical one designed to give the respondent an advantage in these proceedings.

[345] Since May 2018, the children have spent very little, if any, time with their father, despite his unfailing commitment to his children and efforts made by him and others to salvage his relationship with them.

[346] In March 2019, three unsuccessful access attempts were made. The first was arranged privately. Ms. DeVeto and M.M.’s mother left empty handed.

[347] The other two were court ordered. On the first occasion, the paternal grandfather duly attended at the appointed time. After an initial excruciating period, S.M. expressed willingness to go to his paternal grandfather’s home despite his sister’s refusal to do so. However, any hope that a relationship between father and son might be possible was soon dashed. The paternal grandfather went on ahead. S.M. and A.M. were to follow immediately behind. M.M. waited expectantly but ultimately in vain.

[348] The school was the site of the final attempt to facilitate access by M.M. that month. Another person was selected to meet and accompany the children. The applicant’s friend, Will S., fared no better than those he had followed. D.M. and S.M. simply walked past him. Soon afterward, A.M. picked up the children instead. The texts Will S. sent her were not answered.

[349] Four months later the respondent invited M.M. to see D.M. and S.M. at the former matrimonial home. The applicant attended with another friend the following day. M.M.’s attempt to engage the children in conversation failed. Once again, nothing he said improved the situation.

[350] There were two stages to the OCL’s work. The first started shortly after that failed visit in late July 2018. It ended soon after Ms. DeVeto was appointed to help the children and their father reconcile. Right out of the gate, D.M. told Ms. Lee and Ms. Heslop that she did not want to speak. She blamed her father for having to do so.

[351] As noted earlier, during his first interview on August 2, 2018, S.M. told the OCL that he would be going to a theme park following an access visit that was destined to fail. The respondent alleged that was wishful thinking on her son’s part. I do not think so.

[352] During the second interview by the OCL in early September 2018, D.M. repeatedly said she would not see the court appointed counsellor. After speaking with his sister, S.M. refused to be interviewed again. There matters sat when Ms. DeVeto’s attempts to find a way forward started.

[353] With very limited exceptions, the efforts of the OCL and Ms. DeVeto were complicated, delayed, frustrated and ultimately thwarted. While the narrative involves two young children, their mother is prominent too. Despite moments of apparent cooperation and occasional favourable or encouraging commentary, appointments were cancelled, re-arranged or failed to fulfill their purpose when kept, largely because of her. Reintegration did not occur. The children’s own views and preferences could not be determined.

[354] The December 9, 2018 telephone conversation is, in my view, a highly significant event. I do not accept that A.M. made the call while intoxicated.[^62] Nor do I accept her evidence that her memory of the conversation is vague. Her December 10, 2018 e-mail to M.M. offers the correct version. The call was made in “a moment of weakness”.

[355] During the largely one-sided and insofar as the respondent is concerned, profane discussion, A.M. referred to C constantly. The recording opened with her saying D.M. and S.M. would “never be okay with her.” That opinion was expressed over and over. Approximately half-way through the call, A.M. told M.M.:

You want to make shit right with your kids, you get rid of her. That the first thing you do. You get rid of her. Because in their eyes, it doesn’t matter what I say, it doesn’t matter what Paula [DeVeto] says, it doesn’t matter what Deb says, it doesn’t matter what you fucking say. She will always be the reason you left our family.

And any person who helps you to destroy your family is not a good person for you or them.

[356] Shortly before the recording ended, A.M. referred to C as “some fucking floozy girl who destroyed our family.” Those words were harsh and heartfelt. They are the motivation for the respondent’s conduct.

[357] If there was any question concerning A.M.’s mindset before December 9, 2018, it ended with the termination of the call at 4:35 a.m. that day. M.M. has not done the things the respondent demanded during that call. Consequently, the current status is entirely predictable. Attempts to repair any damage done to the pre-separation relationship between the applicant and his children were doomed.

[358] I recognize D.M.’s attitude toward her father has been consistent since at least the latter part of March 2018. At times S.M.’s resolve has seemed to be rooted less securely. However, any sign of wavering has been short-lived. Has S.M. been influenced by his sister? Undoubtedly. Has her behaviour been a product of her own independent thought process because of what her father has or has not done? Inconceivable.

[359] After reviewing the entire evidentiary record, I have concluded that the children have rejected their father so completely and with such speed, passion and determination because A.M. has not moved on.

[360] Precisely what the respondent has done behind the scenes and how she has done it are unknown. However, this much is clear. She cannot and will not allow C to be part of the children’s lives. I have no doubt that D.M. and S.M. are very well aware of their mother’s views. They have been exposed to a running commentary concerning the family unit pre and post-separation. They have seen their mother’s reaction many times: the emotion, physical illness and more. I am certain the children have fully adopted their mother’s view that M.M.’s decision to leave and to pursue a relationship with C is a catastrophic betrayal that is never to be tolerated, accepted or forgiven. No connection with M.M. will be permitted, let alone encouraged, unless and until the applicant (i) admits that he betrayed his family; and (ii) terminates his relationship with C for all time.

[361] Failing that, exile is the sanction they have imposed. That is why efforts made by M.M. to exercise access have failed so completely. During cross-examination the respondent was asked to describe a good quality M.M. possesses. “Playful” was the only word she chose. That was not a fair response. A.M.’s conduct has nothing to do with what is in the best interests of the children. It has everything to do with vengeance.

[362] In V. (J.M.) v. M. (D.L.), 2010 PEISC 37 (P.E.I.S.C.), the trial judge found that the actions of the preferred parent did not accord with her words. This passage drawn from para. 53 applies to this case too:

[The mother] talks about encouraging access between [father] and [child], but her actions say otherwise. In my view, her repeated statements of encouraging access by [the father] are for public consumption only and are not reflective of her true actions.

[363] Only those loyal to A.M. are tolerated. That is why the children maintain a close relationship with the maternal grandmother and A.M.’s friend K.V.

[364] Insofar as contentious issues relating to the children are concerned, A.M. is not a credible or reliable witness. She will use whatever means she believes are needed to achieve her goal of insulating the children from C and punishing M.M. for his actions. In her eyes the applicant did not leave her, he abandoned the “family”. In fact, he has never turned his back on the children, even after trying to navigate an incredibly gruelling path for more than two years.

[365] A.M. believes that anyone who could possibly influence the children to adopt a more positive view of M.M. is to be avoided. That explains the treatment Will S., the paternal grandmother, grandfather, the court, the OCL and Ms. DeVeto have received.

[366] The OCL’s Herculean efforts could not overcome the difficulties it faced in fulfilling its mandate. Its appointees never saw the children in the company of their father. Private interviews with the children were scheduled in 2019 but could not be conducted. Background information provided by A.M. in August 2018, was revised in material ways when provided again in March 2019. Her position hardened. The truth was twisted, if not abandoned.

[367] The respondent overstated the seriousness of a motor vehicle accident in which she and the children had been involved in order to avoid meeting with Ms. Landry and Ms. Heslop. Without justification, neutral parties were treated as enemies.

[368] While professing to have fully cooperated with Ms. DeVeto, A.M. alleged that the court’s appointee was, in fact, working on behalf of M.M. That explains why the respondent sabotaged the reintegration effort from start to finish. The respondent knew of the disclosure meeting. She chose not to go and made sure that Ms. DeVeto’s attempts to discuss the matter privately failed.

[369] Ms. Gowdy seemed to be the one person capable of making progress with D.M. That comes as no surprise. Ms. Gowdy works at the medical clinic the respondent and the parties’ children attend. However, D.M. stopped seeing Ms. Gowdy in March 2019. The appointment scheduled for the following month was not kept. No others were made. A.M. initiated the final contact, seeking a referral to someone having expertise with post-traumatic stress disorder. As Tobin J. noted in his endorsement, that was the respondent’s preferred diagnosis. It still is.

[370] A.M.’s true colours were revealed by other things too. She was justifiably upset after hearing that M.M. had used force to put D.M. in his truck during a late April 2018 access visit. The parties exchanged text messages. The respondent called the CAS.

[371] I am satisfied that unfortunate incident was something M.M. immediately regretted. Indeed, one of the parents who witnessed the event said as much in the affidavit she swore. Notwithstanding how the visit started, the two videos played during the trial showed that D.M. and S.M. recovered quickly. They were enjoying their time in Komoka. If it had been otherwise, I have no doubt the court would have heard the recording D.M. made without her father’s knowledge.

[372] Nonetheless, ten months later, S.M. raised the incident when the paternal grandmother and Ms. DeVeto attempted to facilitate a birthday visit with his father. During the exchange that followed, A.M. said:

He’s scared to come to you and get the gift because he’s worried that you’re gonna physically take him…

[373] Two weeks later, the paternal grandfather was dispatched to pick up the children. At that time, A.M. floated the idea of using physical force to overcome the children’s refusal to accompany him. He did not come close to adopting that suggestion.

[374] The respondent did the same thing when M.M. accepted her invitation and attended at the residence in late July 2019. Once again, it did not find favour. In my view, her motive was clear. She was hoping the bait would be taken. If physical force was attempted, the children would react badly. She would have more ammunition for this trial.

[375] To my ear, A.M.’s contributions to the conversations captured in the recordings were those of a parent going through the motions. She did not sympathize at all with the applicant’s plight. Words of encouragement occasionally offered to the children seemed at best tepid and at worst, staged.

[376] There are other reasons why I found the respondent to be frequently untruthful and unreliable. I offer these examples.

[377] During cross-examination, A.M. was asked about the September 19, 2018 access attempt in Springbank Park. On that occasion, A.M. was alleged to have misbehaved following an unsuccessful day in court. The respondent was asked whether she had recorded the visit. In response, she said she would have to examine several cell phones in order to make that determination. Soon afterward and without prompting, A.M. testified she had captured all of the attempted visits in that location.

[378] The next instance requires some context. In the recordings she made, A.M. was occasionally heard gently admonishing the children for using harsh and inappropriate language. That response was consistent with the respondent’s testimony that she dealt with misbehaviour calmly, privately and after the fact. A.M. said there were consequences for the children’s refusal to engage with their father. All activities for the balance of the day ceased. Idleness was the penalty she imposed. Given the number of times M.M. was rejected, her response would have been readily apparent to the maternal grandmother who spent a great deal of time at the former matrimonial home post-separation.

[379] The maternal grandmother’s immense loyalty to her daughter was readily apparent from the testimony she gave. The witness had not heard A.M.’s evidence because a witness exclusion order was in effect. When asked whether there was any change in what the children could or could not do after a failed access visit, the maternal grandmother was clearly bewildered. She had not noticed anything of the kind. The attempt by the respondent’s counsel to draw out a more helpful response in re-examination failed completely.

[380] K.V. was in the home when Ms. DeVeto and the paternal grandmother made their ill-fated visit in early March 2019. She told the court in direct examination that S.M. opened the birthday present his father had purchased for him after the visitors departed. The witness also told the respondent’s lawyer that she heard A.M. reprimand the children after a failed access visit from time to time but was not personally aware of any other consequence. After considering the evidence on this point, I have concluded A.M.’s version was untrue.

[381] Events specific to this proceeding are noteworthy too. As mentioned earlier, on March 13, 2019 the case management judge made an order that included this term:

Neither party shall tape (video or audio) any interaction or conversation between them.

[382] A.M. was present in court that day and was assisted by duty counsel.

[383] Three days later, the respondent surreptitiously recorded the paternal grandfather’s attempt to pick-up the children on his son’s behalf. If there is any doubt about the impropriety of that decision, there is none when it comes to the visit M.M. made on July 27, 2019 as a result of an invitation A.M. extended. Yet, that attendance was recorded too.

[384] A trial readiness conference was conducted by the case management judge on October 1, 2019. A.M. was present. She signed the TSEF that day. The words “This trial is peremptory on both parties” appeared under the heading “Other Issues”

[385] The trial began on October 7, 2019 as scheduled. One key participant was missing: A.M. Her recently retained counsel produced an e-mail she had authored. It had been sent to her lawyer but was addressed to the trial judge. Among other things, the respondent said that she had been offered a permanent position with her employer on October 4, 2019. Later she wrote:

With this comes a probation period. During this time I am expected to not miss work. Doing so will result in termination of my Permanent Status thus leaving me to go back to the casual call in list…

[386] The message – and A.M.’s absence - created the impression the respondent could not attend the trial without jeopardizing her employment. On the faith of the e-mail, the respondent’s lawyer sought an adjournment despite the term in the TSEF to which I have referred. The request was declined. However, the respondent was given time to appear if she chose to do so. A.M. appeared at the required time and stayed throughout the hearing.

[387] During the trial, A.M. produced an undated letter confirming her appointment as a full-time educational assistant effective October 21, 2019. The probationary period commenced at that time. To be clear, her hiring was effective two weeks after the commencement of the trial. At the time she authored an e-mail to the court there was nothing in effect that prevented the respondent from appearing at the opening of and participating in the proceeding. At best, the respondent tried to mislead the court. More accurately, she lied.

[388] After considering the totality of the extensive evidentiary record, I have concluded that the applicant has met the burden of proof he bears. Despite efforts to conceal her behaviour, A.M. has systematically and persistently alienated D.M. and S.M. from their father. A.M.’s efforts have not only undermined a mostly positive relationship between M.M. on the one hand and D.M. and S.M. on the other, they have destroyed it. She has convinced the children that M.M.’s decision to separate and to maintain a relationship with C means that he does not truly love them and that he is no longer worthy of their love, respect or time.

[389] The attitude of the children toward the applicant is not a result of their own thought process. It is a product of the respondent’s elaborate and well executed strategy.[^63] To adopt the words used in Cantave v. Cantave, 2014 ONSC 5207 (S.C.J.) at para. 34, the behaviour of D.M. and S.M. is “a vicarious expression of the controlling” parent’s view. The children’s aversion to their father is not rational. It is not grounded in reality. It is not deserved. It is not healthy.[^64]

[390] If left to her own devices, A.M. will continue to act as she has. That will result in D.M. and S.M. continuing to reject a loving and committed father who they should have the benefit of knowing and judging for themselves. That is in their best interests. The treatment they have received at the hands of the respondent is not.

IV. The consequence of alienating behaviour if proven

[391] A finding of parental alienation, whether “pure” or “mixed”, does not end the analysis. The ultimate outcome is dictated by the best interests of the child or, in this case, children.

[392] Even where there has been a finding of parental alienation, there is no easy solution. As Harper J. aptly stated in F. (A.M.) v. W. (J.R.), 2011 ONSC 1868 at para. 158:

Each case must be determined on their [sic] own facts. These cases of high conflict do not lend themselves to simple solutions. Even if the court determines that alienation is either the complete or partial cause of the rejection by the children of one of the parents, the court is still left with a complicated balance of considerations that keep the best interests of the children as the sole focus in any order that is made.

[393] The disposition that follows a finding of parental alienation must be in the child’s long-term best interests: A.M. v. C.H., 2019 ONCA 764 at para. 39. The court must be mindful of but not blinded by the short-term consequences. However, the order made must not be designed to punish the manipulative or otherwise misbehaving parent.

[394] Expert evidence is often helpful. I cannot help but think it would have been of assistance in this case. Its absence does not relieve the court of its responsibility to resolve the parties’ dispute. As Pardu J.A. wrote in A.M. v. C.H., supra at para. 36:

Some expert assessments may be very helpful to a trial judge, but they are not a prerequisite to making the order the trial judge thinks is in the child’s best interests, based on all of the evidence at the end of the trial. In fact, the trial judge is obliged to make that order, regardless of whether expert evidence is adduced.

[395] After a finding that one parent has alienated the parties’ children, the court has four alternatives. Three of them warrant consideration in this case. They are: (i) the court may do nothing and leave the child with the preferred parent, A.M.; (ii) it may reverse custody, whether ordered or simply existing as a matter of fact and award it to the rejected parent, M.M.; or (iii) it may leave the children with the respondent but order that the parties and children participate in therapy: A.M. v. C.H., 2018 ONSC 6472 (S.C.J.) at para. 110. I will deal with each of those in turn. To varying degrees, each option is problematic.

[396] D.M. and S.M. are currently in the care of their mother all of the time. Despite the temporary access order, when this trial ended, there was no contact between the applicant and the parties’ children. As a practical matter that had been the situation for about two years.

[397] Nothing that has occurred before or during the trial gives the court a scintilla of hope that the respondent will change her behaviour if left to her own devices. A.M. is unable or unwilling to put her animosity toward C aside. She will not allow, let alone foster, a relationship between the parties’ children and their father. If the status quo continues, estrangement will continue for the balance of the childhood of the parties’ young daughter and son and quite possibly beyond.

[398] In A (Children-Parental alienation), [2019] EWFC B56 (24 September 2019), Judge Wildblood, Q.C. dealt with a fact situation that has some striking similarities to this one. At paras. 2-4, the judge wrote:

No professional has suggested that there is anything about this father that renders him unsuited to have contact with his children…

I have no doubt that the three experts are right to say that this mother has alienated the children from their father. The relationship between this mother and these children is deeply enmeshed and their perception of this father is skewed and dominated by the mother’s own emotional vulnerability. The mother has a deeply entrenched set of beliefs which are not receptive, at present, to the reasoning of others. I find that she is aware of the consequences of her actions upon the children’s emotional welfare but considers that her actions are justified.’

Of the children it is said that they are generally polite, intelligent, compliant and obedient. There are very positive reports about them from their schools. However, in a demonstration of the misplaced empowerment of these children that is associated with the mother’s alienation, I have received a communication from one child refusing to have meetings with ‘any more social workers, therapists, psychologists, psychiatrists, guardians, et cetera.’ The children refused to meet Dr Berelowitz or engage with the Guardian. They will have nothing to do with their father or his family. They would not even acknowledge cards or presents that he has sent. When he wrote entirely appropriate letters and cards to them, the children expressed unjustified and illogical complaint about their contents. They also express false memories of how he has behaved towards them in the past. [Emphasis in original]

[399] Notwithstanding those comments, the court terminated the assistance that had been provided to re-establish the parent-child relationship. However, that occurred on the thirty-sixth court attendance. An earlier court-imposed trial transfer had gone very badly. The extent, depth and duration of the children’s hostility had been underestimated. Overwhelming resistance to the father had gained a permanent hold.

[400] While the future cannot be foretold, I do not believe that we are at that stage. Alienation has gone on a long time. Nonetheless, the children are still young. There is reason for optimism if changes are made. The court should be and is loath to allow the respondent to benefit from undercutting the applicant at every turn. Past conduct is relevant to a party’s ability to parent: B. (S.G.) v. L. (S.J.), supra at para. 119. A.M. has allowed her natural strengths as a parent to be drowned by selfishness and vindictiveness. It is not appropriate to make an order which would result in the children continuing to live in an environment that is contrary to their best interests.

[401] I turn to the second alternative. This is the disposition the applicant asks the court to make.

[402] Given the evidence, I fully understand why M.M. seeks this order. The respondent has deprived the children of a relationship they used to and still should value. I return briefly to some of the authorities.

[403] In Fielding v. Fielding, [2013] O.J. No. 3652 (S.C.J.) Mackinnon J. observed that:

There is strong support in Ontario case law for the proposition that a change of custody may be the appropriate response to findings of pure alienation, even when the alienated child opposes the change and is of an age where, in general, his/her wishes would receive significant weight.[^65]

[404] In that case, the court refused to place the children with the rejected parent. At para. 169, the trial judge explained:

The views of these children result from experience and parental influence. This is not a case where any of the children has been turned against a parent by “pure” alienation. In these circumstances and given their ages, I am not prepared to make the change in residential custody sought by their mother.

[405] A similar result at trial in A. (A.) v. A. (S.N.), was overturned on appeal.[^66] The child at the centre of the dispute had been the subject of alienating behaviour. An expert had offered the opinion that the parties’ daughter would, in the long-term, be better off living with the rejected parent although the process of adjustment would be difficult.[^67] The appellate court held that the trial judge should not have deferred “to a ‘highly manipulative’ and ‘intransigent’ parent who would clearly never permit the child to have any sort of relationship with her father.”[^68] At para. 28, the British Columbia Court of Appeal explained:

While it is obvious that no court should gamble with a child’s long-term psychological and emotional well-being, the trial judge’s findings show that the status quo is so detrimental to [the child] that a change must be made…[^69] [Emphasis in original]

[406] That was also the disposition in B. (S.G.) v. L. (S.J.), 2010 ONSC 3717. The trial judge refused to allow the status quo to continue. At paras. 64 and 65, Mesbur J. wrote in part:

…doing nothing and simply hoping alienated parent and child will reconnect at some time in the future does not work…

…All the psychiatrists agree that in cases of severe irrational alienation, the alienated child must be removed from the favoured parent for a time.

[407] Despite the assistance an expert may provide, a change in custody is not conditional on a supportive opinion of a person with special qualifications. As Pardu J.A. instructed in A.M. v. C.H., supra at para. 37:

There is…no legal requirement for therapeutic support when custody reversal is contemplated, though it might be helpful in some cases. Here, it would have been of doubtful utility, given the mother’s refusal to participate in that process.

[408] The trial judge in that case had ordered a change in custody despite the then fourteen-year-old’s: (i) close ties to and clear preference for one parent; and (ii) complete rejection of the other. In affirming the decision, the Court of Appeal noted:

The mother’s conduct was profoundly harmful to the child and contrary to the child’s best interests. The mother’s conduct was highly relevant, and the trial judge did not err in giving it the importance he did.

The trial judge also found that the child had been poisoned against his father and his wishes were not independent. Absent a challenge to this finding, the trial judge was entitled to put no weight on the child’s wishes. The trial judge noted further he would not abandon the court’s role of determining the best interests of the child just because the child will do what he wishes in any event. Instead, his goal was “to fashion an order that will prevent [the child] from voting with his feet”: at para. 153.

The trial judge’s conclusions were reasonably available on the evidence and are entitled to deference. There is no basis to intervene.[^70]

[409] An analogous situation exists here. This is a case of “pure” alienation. The respondent has engaged in conduct which “is a form of emotional abuse with potential long-term negative repercussions for the” children.[^71] Manipulation of a child by their parent is not and will never be in their best interests.

[410] The respondent’s conduct stands in stark contrast to that of the applicant. He commenced this proceeding only when it was clear that access would not be provided except on A.M.’s terms. M.M.’s energy has been expended in trying to repair his badly damaged relationship with D.M. and S.M. That is evident in the exchanges of text messages and the recordings A.M. made.

[411] It is also apparent from the steps he has taken during this proceeding. He initiated the motion that resulted in the appointment of the OCL and Ms. DeVeto. He cooperated fully. Despite yearning for his children, M.M. voluntarily suspended access pending the efforts of the reconciliation counsellor. He has attempted to use intermediaries to facilitate time with D.M. and S.M. In short, whatever other failings he may have, his love and commitment to the children and his regard for their best interests is unquestionably at the highest level. The applicant has taken the high road despite endless obstacles A.M. has directly or indirectly thrown in his way.

[412] Reversing custody in the manner requested by M.M. is, in my view, a step of last resort. All of the circumstances of the case must be carefully considered including, as best as they can be estimated, the short and long-term consequences. That point was well made by the Nicholson J. in A.M. v. C.H., 2018 ONSC 6472 (S.C.J.). At para. 167, the trial judge wrote:

I believe it would be wrong for me to focus mainly on the short-term difficulties that would result from a change of custody for the child. I have no doubt that [the child] will initially struggle tremendously with the order I am making. However, continuing with the status quo…will not only result in a termination of the child’s relationship with the Applicant Father but it will be detrimental to his emotional development in the long-term to continue to be exposed to the destructive parenting of the Respondent Mother. The long-term detrimental impact on the child of a permanently severed relationship with his father and ongoing exposure to the substandard parenting of the Respondent Mother far outweighs the emotionally challenging but temporary adjustment to living with the Applicant Father and short-term difficulties of having no contact with the Respondent Mother.

[413] Sadly, most of those comments apply here too. After careful consideration and reconsideration, I had reluctantly but necessarily reached the same conclusion. At the very moment the COVID-19 crisis struck this part of the world, I was prepared to order that custody of D.M. and S.M. be reversed. There would have been no access to the children by the respondent and no communication with them for several months in an effort to provide time for the immense damage caused to be reversed. That order would have been made notwithstanding the fact it would, in the short-term, have been devastating for the children who are currently, as a result of A.M.’s orchestrations, under their mother’s complete control.

[414] However, world changing external circumstances have intervened. For now, that means a reassessment of the disposition I would have made.

[415] That brings me to the third option.

[416] Leaving the children with A.M. and ordering therapy was the alternative that found favour with the motion judge presiding on August 29, 2018. That effort failed because A.M. did not support it despite protestations to the contrary. Cooperation was feigned.

[417] If A.M. had, with sincerity, admitted wrongdoing, expressed a willingness to immediately change, promised to promote the return of M.M. into the lives of the children and agreed to participate in individual and group counselling, this option would have been the one adopted, even if a worldwide health emergency had not intervened. However, she has done none of those things.

[418] Has the respondent’s attitude changed? The draft order the respondent advocates contains a term appointing a “medical doctor who practices as a licensed child psychologist” (sic) to reintegrate D.M. and A.M. with M.M.

[419] That provision, like the search for third party assistance that preceded it, is for show. Despite the passage of time and A.M.’s reference to various professionals during her testimony, no one has been identified. It is intentionally vague.

[420] What, precisely, does the respondent envision? According to her plan, a psychologist would “assess, diagnose and recommend a course of therapy, if any”. The words “if any” speak volumes. A.M. refuses to acknowledge the importance of the professional assistance that is so obviously imperative if M.M. and the children are ever to move forward. The reason is simple. The façade of cooperation will continue. Meanwhile, she will try to continue the endless game of whack-a-mole that so many people have been unknowingly playing throughout this proceeding.

[421] When coupled with the damage already done, the current emergency and the uncertainty it has created, leaves the court with no alternative but to proceed in a cautious but firm manner. To be clear, however, the path chosen is one which must move forward at a consistent pace. That will only occur if the respondent immediately and permanently ceases her infuriatingly destructive behaviour. If she continues to behave in an unacceptable manner, let there be no doubt, the court will respond. I cannot emphasize this point strongly enough. This trial has revealed A.M.’s true character, motivation, objectives and priorities. The results of the assessment are not flattering.

[422] The Court of Appeal considered the court’s jurisdiction to make therapeutic orders in A.M. v. C.H., supra at paras. 48-50. Provisions in the Divorce Act and the Children’s Law Reform Act were referenced and the proposition that they be given “a large and liberal interpretation” adopted.[^72] Writing on behalf of the court, Pardu J.A. offered this instruction concerning the scope of the court’s authority in that area:

…where parents cannot agree, a court may make orders about almost any aspect of the child’s life, including education, religious training, diet, vaccinations, recreation, travel, and so on. That includes making an order for counselling or therapy.

[423] At para. 73, Pardu J.A. added in part:

…time and time again, experienced family court judges have emphasized the value of access to a broad variety of remedial measures…Judges deciding custody cases should be enabled to create or support the conditions which are most conducive to the flourishing of the child.

8. Conclusion re Custody and Access

[424] In all of the circumstances and subject to the review described below, I order the following:

a) The parties shall share custody of D.M. and S.M.;

b) The children will continue to reside primarily with the respondent;

c) If she is not already doing so, A.M. shall and if presently occurring, she shall continue, to provide not less than weekly electronic updates to the applicant concerning each of D.M. and S.M. including their activities, schooling and health;

d) Commencing on Wednesday, April 15, 2020 at 7:30 p.m. (or at such other time as counsel may, before that date, agree in writing is more convenient to all) and on each Wednesday thereafter at the designated or other agreed upon time, the applicant shall have video access to the children using Skype, FaceTime, WhatsApp or such other application as counsel may agree on their behalf, for a minimum of fifteen minutes;

e) Commencing on Sunday, May 3, 2020 at 5:30 p.m. (or at such other time as counsel may, before that date, agree in writing is more convenient to all) and on every other Sunday thereafter at the designated or other agreed upon time, the applicant shall have further video access to the children using Skype, FaceTime, WhatsApp or such other application as counsel may agree on their behalf, for a minimum of fifteen minutes;

f) Commencing on Friday, June 19, 2020, and on alternate weekends thereafter, the applicant shall also have in person access to D.M. and S.M. Alternate weekend access shall commence on Friday at 4:30 p.m. and end on Sunday at 7:30 p.m. A.M. shall be responsible for drop off at M.M.’s residence and shall facilitate the exchange by standing outside her vehicle with the children. The children are to be left safely in the care of M.M. at which time A.M. shall immediately depart alone. M.M. shall be responsible for the return of the children to the respondent’s residence;

g) During the applicant’s weekend access, the respondent shall not attempt to contact or communicate in any way with the children and the children shall not attempt to contact or communicate in any way with A.M., unless M.M. agrees to allow it and then only on the occasion, in the manner and to the extent he agrees;

h) For the purposes of the review referred to below and subject to her written consent, Dr. Dilys Haner of the London Clinic is appointed to assess and report to the court on the needs of the children and the ability and willingness of the parties to satisfy them. Counsel for the applicant is asked to seek that consent forthwith and is to ask for a response directed to the court and copied to counsel for the applicant and respondent. In the event consent is not forthcoming, a teleconference shall be convened by the court as soon as practicable;

i) Each of the parties and each child is ordered to attend for and fully cooperate in an assessment by Dr. Haner on the date(s), time(s), place(s) and in the manner(s) required by her. Further, the parties and children shall fully, promptly and accurately complete, execute and deliver in the manner and within the time requested, any and all documentation required by her;

j) The fees and expenses of Dr. Haner and any retainer required thereby, shall be shared equally by the parties and be paid forthwith upon request by Dr. Haner;

k) If possible, Dr. Haner shall file a report with the court in accordance with s. 30(7) of the Children’s Law Reform Act on or before July 31, 2020 and Dr. Haner is asked to file an interim report if she, at any earlier time, recommends that the parties and/or children immediately participate in further reconciliation counselling;

l) Under no circumstances, will either party record, by any means whatsoever, any interaction involving the other, whether the children are present or not;

m) The respondent shall forthwith provide the applicant with a copy of the birth certificate and health card for each child;

n) Except for the purpose set forth in subparagraph f) above and pending completion of the review, the respondent shall not remove the children from the City of London without the prior written consent of and on terms agreed to by the applicant or his counsel;

o) Provided access is occurring consistently as ordered, the custody and access provisions will be reviewed on a date subsequent to September 7, 2020 selected by the court after consultation with the parties’ counsel. A case conference will be conducted by teleconference beforehand to discuss procedural issues including the estimated length of the hearing and a timetable for delivery of any written evidentiary or other material;

p) If access is not occurring consistently as ordered, counsel for the applicant may request an earlier review;

q) The respondent is ordered to immediately seek therapy concerning her alienating behaviour in order to gain insight into her conduct and enable her to develop and implement strategies that will result in the respondent promoting a meaningful, positive and loving relationship between the applicant and the parties’ children. Proof of compliance with this term is to be filed with the court by no later than June 15, 2020.

[425] Pending completion of the review, I remain seized.

[426] For now, I decline to include the police assistance clause the applicant requested. The court’s continuing expectation is this: A.M., D.M. and S.M. will fully comply with the terms set forth above. However, if that does not occur, the need for the inclusion of a term of that kind will be revisited and if necessary, immediately made.

C. Financial Issues

[427] That leaves the financial issues: child support[^73], the accounts of Ms. DeVeto, post-closing adjustments in relation to the matrimonial home and equalization. Each topic may be dealt with relatively briefly.

1. Child Support

[428] For the purposes of this proceeding, the parties have agreed that they separated on December 11, 2017. The applicant was and still is involved in the concrete business. During its offseason, he sometimes works in the construction industry.

[429] A.M. was not working outside the home at the time of separation. She resumed her career as an educational assistant in 2018.

[430] The applicant began paying monthly child support of $700 the following month. The respondent maintains that M.M. should have been paying $959 per month because his annual earnings from all sources was $62,956.

[431] Based on the evidence, I make these findings concerning the applicant’s income.

[432] I start with 2018. The applicant earned $39,968 from the concrete business he operates in partnership. That amount corresponds with his tax return and the assessment he received from the Canada Revenue Agency. The partnership pays all expenses associated with the truck the applicant drives. I accept A.M.’s testimony that the vehicle is used sixty percent of the time for business and forty percent of the time for personal purposes. That means that the sum of $8,208[^74] plus a gross-up of $2,842 should be added to the applicant’s income for that year. Consequently, M.M.’s income for 2018 was $51,018. According to the Federal Child Support Guidelines (“Guidelines”), the applicant should have been paying $772 per month.

[433] In 2019, the applicant obtained employment during the off-season and earned an additional $10,559. That sum should be added to his 2018 income for a total of $61,577. Monthly child support of $939 should have been paid that year.

[434] As a result of the above, the applicant still owes the respondent the sum of (i) $864 for 2018; and (ii) $2,868 for 2019. Those amounts total $3,732.

[435] Based on the evidence at trial, the monthly sum of $939 continues to be payable on account of child support. I trust updated income information will be provided in due course. I am hopeful any necessary adjustment can be made without court involvement going forward.

[436] Both parties contemplate the payment of s. 7 expenses on a proportional basis. For the purposes of determining the parties’ respective shares of s. 7 expenses, I have used the sum of $61,577 for the applicant’s and $32,000 for the respondent’s income. Consequently, the applicant and the respondent are to pay those expenses on a 66%/34% basis.

[437] The language appearing para. 15 a. through d. and 16 through 19 of the applicant’s revised draft order shall also apply.[^75]

2. Accounts of Paula DeVeto

[438] The Family Treatment and Intervention Agreement the parties signed obligated them to share the fees charged by Ms. DeVeto “proportionally with their incomes”. The amount of the initial retainer was specified in that document. The social worker has billed $10,473. Thus far, the respondent has paid nothing. Instead, the accounts have been fully paid by or on the applicant’s behalf.

[439] I agree that the respondent must fulfill her contractual obligation. By way of reimbursement, she must pay forthwith to the applicant 24% of the invoices rendered by Ms. DeVeto in 2018 and 34% of those delivered in 2019.[^76]

3. Matrimonial home – post-closing adjustments

[440] Despite the September 19, 2018 order of George J., the matrimonial home was not sold.

[441] As contemplated by a consent order made on October 17, 2018, the respondent acquired the applicant’s interest. By agreement, its value was fixed at $550,352.71. After deduction of specified liabilities, the equity in the property was determined to be $281,000. One-half of that amount was paid to M.M. “subject to post separation adjustments to be determined.”[^77]

[442] At trial, the respondent asked for an order requiring the applicant to reimburse her for one-half of the payments made by her on account of the mortgage and residential insurance for the period from separation until the date the transaction closed. The total amount claimed is $7,500, although $6,137.55 was the number that appeared in the calculation filed on the respondent’s behalf.

[443] I decline to make that order for two principal reasons. First, this item was not one of those listed in the TSEF completed by the parties and the trial management judge. It was raised during the trial and clearly caught the applicant’s lawyer by surprise. Aside from being procedurally unfair, the respondent’s argument is without merit.

[444] Sale of the matrimonial home formed part of the relief the applicant sought in his application. The respondent resisted that claim. She continued to live in the matrimonial home. Nothing was done to acquire the applicant’s interest. In August 2018, he filed a motion seeking an order for the disposition of the property. The motion was argued on September 19, 2018. The applicant’s position prevailed. The order required that the residence be listed and sold.

[445] Alleged wilful non-compliance with the terms of the order caused the applicant to file a contempt motion. It was pending when the issue was finally resolved. The parties’ agreement was reflected in the October 2018 order.

[446] Retention of the property was the respondent’s choice. Mortgage payments and insurance premiums had to be paid in order for her to acquire the residence. Occupation rent was not recognized or paid.[^78] M.M. did not cause or contribute to the passage of time. He incurred living expenses in Komoka. In my view, an equal division of the equity in the former matrimonial home was appropriate. I decline to make the order sought.

4. Equalization

[447] The applicant filed a Net Family Property Statement dated September 26, 2019 that included fifteen tabs of supporting documentation. His counsel had expressed a willingness to forego an equalization payment despite the fact his calculation shows that the respondent owes him $13,085.74.[^79] However, in the event the court found him liable on the basis of an underpayment of child support or post-closing adjustments, he seeks permission to set off his entitlement against the amount otherwise owing to the respondent.

[448] The respondent asks the court to order M.M. to pay an equalization payment of $3,200. She filed an unsigned net family property statement. According to her calculation, M.M. has net family property having a value of $136,375 while hers totals $129,837. A.M.’s statement was (i) unsigned; (ii) produced part way through the trial; and (iii) failed to refer to or attach a single document in support of the figures it contains. I place no reliance upon it.

[449] Given that conclusion, there is no need to make any further comment. Nothing is owed by the applicant on account of post-closing adjustments. Setting off an equalization payment against child support is not appropriate. Consequently, A.M.’s decision to forego payment is effective. No equalization payment is due by either party.

D. Divorce

[450] I would have granted the divorce the parties seek had the court file contained the marriage certificate and Central Registry report on earlier divorces required by rule 36(4) of the Family Law Rules. The applicant is asked to attend to those requirements and to provide the court with a draft divorce order in accordance with rule 36(6). The affidavit contemplated by rule 36(5) is hereby dispensed with.

E. Costs

[451] Written submissions not exceeding fifteen (15) pages may be provided to me by M.M. and A.M. by no later than 4:30 p.m. on May 1 and 22, 2020 respectively. Short reply submissions not exceeding five (5) pages may then be provided by M.M. by no later than 4:30 p.m. on June 3, 2020.

Grace J.

Released: April 7, 2020

[^1]: While not asked, pseudonyms have been substituted for the names of the parties and the children. See, Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 70(1) (b).

[^2]: C was in the background during the call and could be heard whispering to M.M. from time to time.

[^3]: Section 184(1) of the Criminal Code.

[^4]: The definition in s. 183 of the Criminal Code includes “record”.

[^5]: Those words are defined in s. 183 of the Criminal Code as meaning “any device or apparatus that is used or capable of being used to intercept a private communication”.

[^6]: The only exception that could have been applicable is s. 184(2)(a) which applies where the person recording the private communication had the express or implied consent of the “originator”. There is no suggestion that the various conversations were recorded with the express or implied consent of all participants.

[^7]: Scarlett v. Scarlett, 2014 ONCJ 517 at para. 31.

[^8]: Turk v. Turk, 2015 ONSC 3165 (S.C.J.) at para. 18. See, too, Sordi v. Sordi, 2011 ONCA 665.

[^9]: Reddick v. Reddick, [1997] O.J. No. 2497 (S.C.J.) at para. 19.

[^10]: F. (A.) v. W. (J.), 2013 ONSC 4272 (S.C.J.) at para. 56.

[^11]: Insofar as the children were concerned, the parties seem to agree that the recordings were evidence of their state of mind and were not tendered for the truth of their contents: Ward v. Swan, 2009 CanLII 22551 (ON SC), [2009] O.J. No. 1834 (S.C.J.) at paras. 4-8 and 12-18.

[^12]: In Maharaj v. Wilfred-Jacob, 2016 ONSC 7925, Trimble J. admitted certain video evidence. His helpful analysis of this issue is found at paras. 23-30.

[^13]: Two recordings were introduced into evidence that were made after March 13, 2019. The first was made March 16, 2019. It involved the paternal grandfather, not M.M. and therefore, arguably its making did not contravene Henderson J.’s order. However, the July 27, 2019 recording was made when M.M. attended the matrimonial home after being invited to do so by A.M. That recording was made in clear violation of March 13, 2019 order.

[^14]: A.M. was born on August 26, 1980 and M.M. on November 13, 1981.

[^15]: She was born on October 13, 2008.

[^16]: On September 15, 2012 to be precise.

[^17]: Templeton J.’s order was made on August 29, 2018. The parties were ordered to retain Tracey Lipp if Ms. DeVeto was unavailable.

[^18]: At para. 65, point 7.

[^19]: Those excerpts are drawn from paras. 35 and 36 of Lisa Heslop’s affidavit sworn May 6, 2019. Its contents were adopted at trial.

[^20]: The claim was framed as a request for an interim interim, without prejudice order.

[^21]: An affidavit of Angela Bodnar sworn October 17, 2019 was filed by the respondent. Ms. Bodnar described herself as a friend of the respondent. She provided a version of the events described in the body of these reasons. She said she approached M.M. after he managed to get a screaming and crying D.M. into her seat and closed the door. At para. 12 Ms. Bodnar deposed: “It was at that time that I approached him. He was visibly upset but didn’t say much. I told him to take some deep breaths before he got into the truck. He hurriedly got in and left.”

[^22]: According to the records of the CAS, the attendance occurred on May 4, 2018. The LPS occurrence report was dated May 24, 2018.

[^23]: This affidavit was sworn May 6, 2019.

[^24]: The parents were also interviewed separately that month.

[^25]: This excerpt is drawn from para. 66 of Ms. Heslop’s May 6, 2019 affidavit.

[^26]: The respondent says that she did not obtain independent legal advice as recommended.

[^27]: On October 26, 2018 Ms. Gowdy noted that D.M. “was in very good spirits” as her father had said they could keep the house.

[^28]: Reports dated February 25 and April 16, 2019 were filed on consent.

[^29]: Chris is the name of the person A.M. said that she was seeing.

[^30]: That report is dated April 29, 2019.

[^31]: The excerpt is drawn from para. 97 of Ms. Heslop’s May 6, 2019 affidavit.

[^32]: Those excerpts are drawn from para. 106 of Ms. Heslop’s May 6, 2019 affidavit.

[^33]: The excerpt is drawn from para. 70.

[^34]: The recommendation was made April 19, 2018.

[^35]: Significant amendments to s. 16 do not come into force until July 1, 2020.

[^36]: Sterling v. Sterling (2005), 2005 CanLII 16590 (ON SC), 17 R.F.L. (6th) 377 (Ont. S.C.J.) at para. 79; Campbell v. Campbell, 2017 ONSC 3787 (S.C.J.) at para. 13.

[^37]: Citing Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 and Clayson-Martin v. Martin, 2015 ONCA 596.

[^38]: While dissenting in the result, there was no disagreement in principle among the members of the court.

[^39]: King v. Low, 1985 CanLII 59 (SCC), [1985] 1 S.C.R. 87 at para. 101.

[^40]: At pp. 117-118.

[^41]: Recently cited with approval in Yenovkian v. Gulian, 2019 ONSC 7279 (S.C.J.) at para. 84.

[^42]: Margaret Michelle McKelvey, “Parental Alienation in Ontario: What is Parental Alienation, and What Should be Done About It?”, 2011, unpublished thesis, Faculty of Law, University of Toronto, at p. 10 referring to Richard Warshak, “Bringing Sense to Parental Alienation: A Look at the Disputes and the Evidence”, (2003)