Court File and Parties

COURT FILE NO.: FC-20-168 DATE: 2020/06/29 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Ian Stakenvicius, Applicant AND Tracy Coates, Respondent

BEFORE: Mackinnon J.

COUNSEL: Jodi R. Fleishman, for the Applicant Carol Craig/Ira Marcovitch, for the Respondent

HEARD: June 4, 2020

Endorsement

[1] The applicant father seeks a temporary order for primary residential care of their nine year old son, or, for an equally shared residential schedule between the parents. The mother opposes. Her position is that the child should continue to reside with her, with access according to the child’s wishes only, until such time as a counselor for the father and son recommends resuming access.

[2] The precipitating events to the motion began on March 28 when the mother arranged for a friend, Mr. Pratt, to look after the child temporarily, without telling the father. On March 29 and 30 she was taken to hospital based on concerns she was suicidal.

[3] The father learned of these events after the fact when the CAS contacted him on March 30 seeking his consent for their son to continue to stay with Mr. Pratt. The father resides in Gatineau, Quebec. When the Quebec border closed to non-essential traffic from Ontario in response to the COVID-19 pandemic he had no choice but to acquiesce. He and Mr. Pratt worked out amicable arrangements for considerable father /son contact. This continued until April 6 when the mother intervened. She resumed care of the child on April 13. Some limited contact has occurred since then between father and son. However, it has become increasingly problematic to the point that now the child is essentially refusing to see his father.

[4] The mother’s view is that the relationship problems between father and son are longstanding and relate to the father’s poor parenting which she describes as argumentative and authoritarian. The father who was already concerned that the mother was wrongfully limiting his contact with his son, is now of the view she is actively engaging in parental alienation to the serious detriment of their child.

[5] The parties lived together since 2000 and married on June 27, 2009. Their son Jaeden was born on April 14, 2011. They separated on June 14, 2019. A separation agreement was signed two days later by which the mother had sole custody of Jaeden and the father had access one day every two weeks. In his Application the father seeks to set aside the agreement saying amongst other things that he signed the agreement under undue pressure and threats. The mother maintains the agreement is valid. Neither based their motion submissions on the provisions in the agreement.

[6] The parties have not followed the agreement with respect to the father’s parenting time. He says his access has been as dictated by the mother on an ad hoc basis. She says Jaeden is legitimately afraid of his father and that she has done her best to facilitate access.

[7] The materials before the court are extensive. There are many factual disputes. Not all can be determined on the record. Not all will be referred to. This is a motion for temporary relief, not a trial. That said, the court ought not let its inability to determine all the factual disputes between these parents deter it from making essential decisions to advance Jaeden’s best interests now on issues it can determine.

[8] Findings of credibility and reliability, evidence from independent sources, and documents, have been very important to the conclusions reached.

Parenting during Cohabitation

[9] Both parents were very involved in Jaeden’s care and upbringing. Since Jaeden was very young his father was responsible for his morning and bedtime routines. He was the parent who took him to daycare or school in the morning. The father favoured routines and tried to instill compliance with them in Jaeden. Jaeden was resistant. Getting him up, dressed, fed and out the door became contentious. Jaeden was very often late for school.

[10] The mother blames the approach the father took with Jaeden. The father felt unsupported by her in his efforts to adhere to routines with Jaeden. The parents never saw eye to eye on how to address these challenging aspects of raising Jaeden. They do not agree on the extent of the conflict that arose between father and son, but both agree it was there.

[11] The father acknowledges these difficulties between him and Jaeden, but he also points to many other aspects of their relationship which he says were fun and strong. Jaeden was unquestionably very attached to his mother.

[12] Jaeden showed symptoms of anxiety at an early age. A number of strategies were tried before his pediatrician, Dr. Fraser-Roberts, referred the family to the Children’s Hospital for Eastern Ontario mental health services hoping to improve family communication, reduce conflict, and reduce Jaeden’s anxiety.

[13] The CHEO intake report is dated April 2, 2019. The report is helpful although limited in that it is not always clear which of the three family members provided the information recorded. The report notes significant conflict in the family, particularly, but not only between father and son. The family shared the need to improve the father’s relationship with Jaeden and for the parents to get more skills to reduce Jaeden’s anxiety. Jaeden was said to show some signs of low mood including expressing a wish to be dead or to go back to Sky World. This was said to happen every couple of months usually after major conflict with his father. The parents reported that Jaeden did not engage in any suicidal gestures.

[14] Jaeden’s biggest challenges were said to be anger/behaviour outbursts and anxiety. Many of his challenges with anger related to conflicts with his father, including over things like having breakfast and getting dressed.

[15] Jaeden’s anxieties were said to relate to what might happen in future that would make him and his mother unsafe, such as global warming, human rights violations, and natural disasters. Significant anxiety at school was noted. Jaeden worried something bad might happen to his mother while he was at school.

[16] Both parents wanted more tools to help Jaeden feel less anxious. The father wanted to communicate better with his son and to improve their relationship. He recognized he had a big role to play in accomplishing this.

[17] The father also reported personal issues with emotional regulation. He said he often felt that anxiety, stress and anger were in control of his actions. He had arranged to see a psychiatrist for treatment for depression and anxiety, hoping this would help him to better support Jaeden.

[18] The parents had already tried couples counselling which had reduced some conflict. Now Jaeden’s and dad’s mental health were seen as the biggest priorities. The primary goals adopted were to improve communications, to reduce conflict between father and Jaeden, and to reduce Jaeden’s anxiety.

[19] An anxiety program was recommended for the family. Jaeden and the father began the program in October 2019 and completed it. The parents disagree as to why the mother only attended one session and whether it was productive or not. The father was also referred to a parenting course which the mother says he was asked to leave because of poor attendance.

[20] This intake report shows that prior to separation the parents had communication problems, there was conflict between the father and Jaeden, Jaeden was anxious and both parents needed more skills to help reduce his anxiety. Jaeden’s anxieties were associated with his mother. The father had sought out psychiatrist, was open with his personal issues, and acknowledged his responsibility in relation to Jaeden.

Parenting Post-Separation

[21] Following the separation, the father had Jaeden for some full weekends. In late September this changed to some shorter visits during the week plus two overnights and a day every weekend. I accept the father’s statement that the mother decided what access he would have. In an email dated August 12, 2019 she told him where he could exercise access and added, “I’ve advised that I seek police and any other support if needed if you breach the custody agreement and kidnap Jaeden by bringing him somewhere, I don’t approve”. An unusual use of the word, “kidnap”.

[22] The shorter visits typically took place at the mother’s home. It was not unusual for the father to come to her house to handle the morning routine with Jaeden. He was also there after school and during evenings if the mother was working. She said conflicts persisted between Jaeden and his father such that she would get called out of meetings to come home to resolve them.

[23] On October 23 the father was at the mother’s home in the morning to get Jaeden ready for school. A disagreement arose between father and son about Jaeden getting dressed. Although the parents differ in their description, it is clear that the father physically maneuvered Jaeden out of his room and into the bathroom. The father admits he grabbed Jaeden in the bathroom, he says to prevent an injury, and he did slightly twist his arm, but not so as to almost dislocate it as the mother alleges. The parents agree Jaeden took a knife of some description and was heading towards his father with it when his mother intervened. The parents agree the father told Jaeden if he did not get dressed, he would take him to school in his pajamas. Jaeden did not comply. The father carried Jaeden out of the house, bringing his clothes with him. Jaeden said he would get dressed if his father would let him go back in, but once inside, he would not get dressed. His father sat him on his knee and dressed him. The parents disagree as to the amount of force used to do this. The father left at this point, three hours after he had arrived. The mother says that Jaeden broke down for hours, crying and saying he wanted to die and to kill his dad.

[24] After October 23, 2019 the mother began reducing the father’s access. About one week later the CAS received a complaint that the father had abused Jaeden. The CAS investigated did not verify the allegation.

[25] I find the father was ill advised to pursue the objective of getting Jaeden dressed for three hours on October 23. Nor do I agree with the physical approach he took, even if it did not constitute abuse.

[26] I accept the father’s description of his Christmas access being specified by the mother and that during the holiday period she made a unilateral decision to change it. This was in response to a phone call Jaeden made to her before Christmas, misunderstanding or unhappy with his father’s and paternal grandparents’ decision to give him his Christmas presents on December 26, the day they would see him next.

[27] In January and February only one overnight visit occurred. An example of their different parenting styles and the mother’s justification of Jaeden’s behaviour is provided by the visit on January 18. The night before, Jaeden asked his father to help him shovel the laneway. When his father arrived, Jaeden insisted that his father start shoveling before he would come out. The father said Jaeden should come out and get started and he would join in. The mother states that she tried to de-escalate the situation for 2.5 hours, but Jaeden would not go out and eventually his father left. The mother ought to have agreed with the father and sent Jaeden out to get started on the laneway. I find she wrongly supported Jaeden in unreasonable behaviour.

[28] In March 2020, the mother imposed terms of supervision for all visits. The father did not agree. There was no access between him and Jaeden from March 5 to March 28.

Evidentiary Objections by Mother

[29] The respondent made numerous evidentiary objections to documents exhibited by the applicant, and his references to them. Her submissions were made on the assumption that the purpose of the evidence was to prove the truth of the contents. In the rulings that follow many of the references objected to are found admissible for another purpose. I say this to underscore the importance of counsel discussing evidentiary objections in advance of a motion so that the proponent will articulate the purpose for which the evidence is tendered, and the opposing party may then consider whether there is a legitimate objection. If there is, counsel should prepare a chart setting out the details of each statement tendered, the purpose for which it is offered and the basis of the objection. So doing serves to focus counsel on the merits of the objection and facilitates the court’s consideration of its merits. This practice is often adopted in trials, yet it is even more desirable for a motion on the record where all of the evidence is tendered in advance of the hearing.

[30] The respondent concedes the CAS notes are business records and that the observations of the case worker and statements made by a party to the worker are admissible. She correctly submits that third party statements recorded by the CAS where the third party is not also under a business duty are not admissible for the truth. Nor are opinions in business records admissible to prove an expert opinion.

[31] Exhibit B to the applicant’s affidavit is the CAS record of a call received on March 30 from Dr. Conrad at the hospital reporting the mother’s attendance there on two nights in a row for suicidal thoughts. Dr. Conrad also said the mother was waiting to be assessed by a psychiatrist and it was not yet known whether she would be released or remain in hospital. These statements by Dr. Conrad are admissible for their truth. He was under a business duty to report to the CAS. They are also admissible for the fact that the information was provided to the CAS. His statement that she was in for “suicidal thoughts” is not admissible as expert opinion that the mother was suicidal.

[32] Exhibit C is the CAS record of the content of a call received from Mr. Pratt. His statement is admissible to show the information the CAS had and acted on in their investigation into these matters. It is part of the foundation to their conclusions, which were admitted without objection. Whether the statement is also admissible for the truth of its contents under the principled exception to the exclusionary hearsay rule is a more complex analysis that was not fully pursued in oral argument or in the respondent’s factum. For that reason, I will not discuss the applicable case law, but simply provide my ruling with brief reasons. I have concluded that Mr. Pratt’s statements do meet the threshold test for admissibility for their truth. Necessity has been established. Respondent’s counsel advised that Mr. Pratt was not willing to provide his own affidavit for the court. Accordingly, his evidence will not be available unless it is admitted in this form. Threshold reliability is also met. Mr. Pratt was a close friend to the respondent and godfather to Jaeden. She entrusted her son to his care. He had no motive to speak against her personally. He demonstrated his efforts to be accurate. What he heard and observed himself and reported to the CAS is therefore admissible for the truth.

[33] What other people told him they thought, and he repeated to the CAS is not admissible.

[34] Exhibit D is an email Mr. Pratt sent to the CAS setting out what he heard the mother say to Jaeden during a telephone conversation. His email is contained by link in the CAS record. This removes one potential obstacle to threshold reliability, namely accuracy of note taking on the CAS part. The hearsay dangers in its admission are reduced since the mother has acknowledged some of the contents herself in an SMS message to the father on April 20. A March 30 phone call to the CAS also includes admissions by her consistent with what Mr. Pratt says he heard her say.

[35] The threshold test for admissibility of Mr. Pratt’s out of court statements in this exhibit is met.

[36] Exhibit F is the CAS record of Mr. Pratt’s call made on April 8. This call was made to recant his previous statements except his decision to call the police on March 30 which he stood by. He made the call after the mother had explained herself to him. His attempt to recant underscores the necessity in receiving his earlier statements. It should also be admitted for the purpose of assessing the ultimate reliability of the earlier statements. Moreover, the hearsay dangers are addressed in the mother’s own affidavit. She also describes the same explanatory conversation she had with Mr. Pratt. The father also relied on this statement as some evidence of the mother’s efforts to influence third parties to her point of view. It is also admissible for that purpose.

[37] Although not necessary to the evidentiary ruling, I did conclude the recantation does not detract from the ultimate reliability of the contents of the email in Exhibit D. In the phone call on April 8, Mr. Pratt referred to the context the mother had provided. She told him she thought he was trying to take Jaeden away from her, to give him to the father when she said those things. Mr. Pratt does not say the mother did not say what he said she said in Exhibit D. Whether he understands it differently does not detract from the fact of what she said or of his reliability in setting down what he heard her say. I find the mother did make those statements to Jaeden.

[38] Exhibit E is a note made on April 1, 2020 by the CAS social worker’s supervisor of what the social worker reported to her. That part of the note is inadmissible. The part of the note that records the decision they reached is admissible.

[39] Exhibit H is the CAS record of a call received from Jaeden’s school social worker. Part of the out of court statement is admissible to show the mother asked her to call in her concerns about the father. That she reported nothing is admissible as part of what the CAS was told in its investigation.

[40] Exhibit P is the CAS record of a call with the name of the caller redacted. The contents of this call are inadmissible hearsay. The fact of the call has very low probative value and cannot outweigh the prejudice posed by the unfairness to the mother arising from the redaction.

[41] Exhibit Q is another call to the CAS from the same school social worker. The mother had asserted and continues to do so in her affidavit that the school had advised her to cut off all contact between Jaeden and his father. The social worker called in to say that she had not said this. This statement is connected to Exhibit H and is admitted for the same purpose. The speculative statements about what others in the school might or might not have thought or said, and the school social worker’s personal views of what the mother may be doing are not admissible.

[42] For completeness, I note that neither party argued against the admission of statements made by Jaeden to the CAS social workers. Unless specified elsewhere I have found they meet the threshold test for admission for the truth of the contents.

[43] The mother attached her hospital records for March 29 and 30 as exhibits to her affidavit. She then argued against the admissibility of some aspects of the hospital records.

[44] The objections relate primarily to what are submitted as opinion or diagnoses of her medical condition, to statements the mother herself made while in hospital, and statements made by third parties not under a business duty to do so.

[45] Expert opinions are not admissible through a business record. Nor are third party statements admissible for their truth if the declarant was not also under a business duty to make the statement.

[46] The statements made by EMS to hospital personnel as to what they did and observed are admissible. Both the speaker and recorder were under a business duty to provide and record this information. Statements by the crisis line worker and the police to EMS personnel and by them to the hospital are not admitted as being too remote to be safely admitted for their truth and are not otherwise material to an issue in the case.

[47] Page 1 of Exhibit J to the mother’s affidavit is a summary history taken at the hospital. I agree it is not entirely clear the mother was the source of the statements recorded and do not admit them as statements against interest made by her. Other statements in the hospital record are clearly attributed to the mother and are admitted for their truth as statements made against interest. I reject the argument that prejudice arose because there were six service providers listed in the hospital record and it was not always clear to whom she made a statement. This objection was not connected to any particular statement in a way that could show actual or sufficient prejudice to outweigh the probative value of a statement.

[48] The respondent also submitted that her own statements were insufficiently reliable to be admitted because she was under significant stress and was experiencing a significant mental health episode while at hospital. Her statements are admissible under a traditional exception. The mother has not established that what she said is too unreliable to be admitted. Her submissions go to the ultimate weight to be accorded the statements not to admissibility.

March 29 to 30, 2020

Was the mother suicidal?

[49] The mother admits that on March 28 she was feeling she could not handle everything and needed a break. She described herself as emotionally exhausted. She did not want her son to see her in this condition, and asked his godfather, Mr. Pratt, to take care of him for a few days. The mother also admitted calling the crisis line on March 29 and spending an hour on the phone with the crisis worker. The crisis line worker thought the mother was suicidal and called the police.

[50] The mother later told the CAS worker she called the crisis line on impulse, told the crisis worker that she wanted to go to Sky World, wished she could go to sleep and not wake up. The mother explained that the crisis line worker confused Sky World with heaven as she was unaware of the meaning in the mother’s Mohawk culture.

[51] The crisis worker reported the content of the call to the CAS in the same words as did the mother but added that the mother said she was not wanting to live her life. She acknowledged and apologized that she did not understand about Sky World until the mother had explained it to her.

[52] The mother arrived at hospital at 1:26 a.m. On examination she appeared calm and cooperative, with no suicidal ideation. She was safe to go home and was released at 3:11 a.m.

[53] I conclude that while she was clearly deeply upset, overwhelmed and despondent about her life situation, she was not actively suicidal on March 29.

[54] The mother called Mr. Pratt late on March 30. She later told the CAS worker that she had been crying and incoherent and that she had never felt this sad before, but she was not suicidal. The mother believes Mr. Pratt overreacted due to personal experiences of his own. She says she ended the call because he was upsetting her. Then she texted him, “sorry”, followed by another text saying, “everything will be fine”. Mr. Pratt called the police fearing she was suicidal.

[55] On arrival at hospital just after midnight, the mother was observed as initially calm and cooperative, but not really forthcoming with answers related to what happened. The mother advised that the police had misinterpreted her actions. She said she was slow coming downstairs to answer the door because she was drawing her bath. She was on her way down the stairs holding her prescribed medications in her hand, just as the police kicked in her door. She jumped and spilled extra pills into her hand. She says she was not suicidal.

[56] The hospital record describes the mother as passive aggressive and defensive throughout the intake interview, she explained she was feeling pretty low and made some comments to a friend endorsing passive suicidal ideation. She said she felt a little more depressed and anxious than usual because of the stress she was under, but she was adamant she was not actively suicidal. She brought up her son as a main protective factor.

[57] The mother deposed that she was triaged and discharged immediately. This is incorrect. She was kept in hospital overnight on a Form1. She became extremely agitated when staff told her the CAS would have to be notified. At one point she escaped her room and had to be brought back by security guards. The mother admits she became frustrated and angry when she was told the CAS had to be called.

[58] In the morning, the patient was described as very calm, very cooperative and showing a completely different demeanor than the night before. She was future orientated and expressing that she wants to be alive to look after her son. The mother was discharged but became agitated again on departure. She complained that the intervention had not helped her, was ruining her child’s life, and had made everything worse.

[59] The initial note describes Mr. Pratt as the mother’s ex-partner which is incorrect. He is reported to have said that the mother told her son she had thoughts of suicide. There is also mention of a note from her to Mr. Pratt leaving him custody and asking him to say sorry to Jaeden for her. There is no primary evidence supporting these contentions. They are unproven.

[60] I appreciate that the involvement of the police and the knowledge that the CAS would be informed would be distressing to anyone but more so to the mother on account of her culture and the historical involvement of both authorities with aboriginal people. As well there is a note in the CAS file that she has trust issues with the CAS as result of her own childhood experiences.

[61] I conclude that the mother was not actively suicidal on March 30 but clearly, she gave her close friend the impression she was. I find she was sharing suicidal ideation with Mr. Pratt in a highly emotional, convincing tone although in her mind she knew she would not act on it.

What was the mother’s state of mental health?

[62] There is ample evidence the mother was experiencing a significant mental health episode in late March 2020. Further that she has a history of mental health issues.

[63] On March 29, 2020 she completed the Columbia Suicide Severity Rating Scale while in hospital. In it she admits to having had thoughts of killing herself, that she has thought of how she might do it and has done or started to do something or prepared something to end her life. She endorses that these experiences have happened in the past three months.

[64] On March 30 she stated at hospital that she had been admitted to the Royal Ottawa Hospital (a psychiatric hospital) 25 years ago and had attempted suicide at age 15. She attributed these issues to intergenerational trauma and reported a long history of abuse from childhood and previous partners. In a text to affiant Ms. Paul on April 27, 2019, the mother wrote that she is still completely broken and getting worse by the moment. She said she had decided to try self-harm again., that she keeps disassociating, spiraling into horrible places and thinking about killing herself.

[65] The mother acknowledges diagnoses of chronic PTSD and ADHD. She admits to being prescribed medication for anxiety/depression and to help her sleep. Since March 30 she has a safety plan in place which has been approved by the CAS. Her plan is that Luella, an Elder, will call her every day and will come if needed. She will be in touch with her social worker at the ROH twice per week. She will call the crisis line or hospital if needed and will place Jaeden with someone else if she needs a break.

[66] The mother acknowledges she is or may appear hypervigilant about Jaeden and the risk his father poses to him. On April 17, the mother reiterated to the CAS why can no one else see the concerns she has about the father? After gathering information from everyone, the CAS had not verified her concerns in regard to Jaeden and his father. In a letter to the parents dated April 16 the CAS lawyer advised that from their perspective at that time Jaeden was deemed safe with his mother, father and godfather.

[67] The mother displays a tendency to overstate or exaggerate events that have happened and to worry excessively about what may happen in future. For example, on April 17 she referred in a telephone call to the CAS that it had taken Jaeden away from her and made him spend time with his father. This did not happen. On release from hospital the mother agreed with the CAS that Jaeden would stay with Mr. Pratt until the CAS approved her safety plan. In the same call she expressed her worry that this was part of a millennial scoop that Jaeden was taken away from her. Jaeden had not been taken away from her. I fully understand the fear that Jaeden might be taken from her, but he was not. With CAS approval she brought him home when she felt ready.

[68] In the same call the mother said that Jaeden was in imminent danger of going to his father. And that by next Wednesday he may have stabbed his father and killed himself if the CAS worker, described as the last person who can do something about it, fails to act. This was in reference to a case conference scheduled for Wednesday, April 22.

[69] For these reasons and those set out in the next section, I conclude that the mother has mental health issues of significant duration, including with thoughts of suicide.

Did the mother say she has Borderline Personality Disorder?

[70] The hospital record for March 29 states that the mother has a mental health diagnosis of borderline personality disorder, chronic PTSD and ADHD. The mother denies saying that she had a diagnosis of borderline personality disorder. She also denies that she has that diagnosis. Her position is that this an error and she has asked the hospital to investigate how it got this erroneous information.

[71] I conclude it is probable the mother did make the statement, in part because she has made it on other occasions and in part because she has not taken steps available to her to disprove that she has the diagnosis.

[72] The mother produced two CAS notes of calls received from her counsellor at the ROH. On April 7, 2020 this person advised that she has worked with the mother since January 2020 in the mood and anxiety outpatient clinic at the ROH. She said the mother is followed by a psychiatrist and herself. She also said the mother’s primary diagnosis was of Borderline Personality Disorder and PTSD. The statement is evidence of what the hospital social worker said to the CAS. And whereas the mother contacted this worker to explain the cultural misinterpretation she had made and asked her to correct that to the CAS, she did not ask her to correct this statement.

[73] The mother texted Ms. Paul on April 27, 2019 saying her “bpd” has not been this out of control in over 12 years; she is terrified she is going to do herself permanent harm; she is spiraling to horrible places and is thinking about killing herself.

[74] On February 19, 2020 the mother told the CAS social worker, according to the CAS record, that she has four different PTSD complex diagnoses, borderline personality disorder and ADHD.

[75] These references were not explained by the mother.

[76] The mother is under the care of a psychiatrist at the ROH. She could have obtained a letter from him to say whether she had Borderline Personality Disorder. She provided a letter from her family physician verifying her prescribed medications and saying she is not a danger to herself or anyone else. This letter refers to the mother’s “mental health condition”, without saying what that condition is. This opportunity was not taken to have her physician speak to the existence or not of a diagnosis of Borderline Personality Disorder.

[77] Denial of a significant diagnosis is pertinent to the mother’s level of insight, to her parenting ability and to her credibility.

Events after March 30

[78] With Mr. Pratt’s agreement, the father had significant contact with Jaeden from March 30 to April 5. According to both Mr. Pratt and the father this went well. The father says the and Jaeden grew closer and re-established their bond. He says they went to the park, did reading and school work together. They made meals together and helped clean up together. The father did Jaeden’s bath, bedtime routine, and stayed with him until he fell asleep. Mr. Pratt said he saw no sign that Jaeden was afraid of his father. He speculates that perhaps Jaeden had some anger as his father could be authoritarian and because of the separation, but no specific observations were provided.

[79] Mr. Pratt contacted the CAS on April 1, 2020. He told the social worker the mother called and spoke to Jaeden the day before. She called back and spoke to him again. The third time she called Jaeden did not want to speak to her but did take the call in the bedroom. Mr. Pratt said at the end of the call Jaeden came out of the room crying. Jaeden said to Mr. Pratt he did not want to speak to her again until tomorrow.

[80] Mr. Pratt also sent the CAS his notes of what he heard the mother say to Jaeden during this telephone call. He made the notes 30 minutes after the call ended. He explained he heard Jaeden make a loud sharp noise, so he decided to listen at the door. Mr. Pratt wrote that he heard the mother say:

• Now everyone thinks she is a bad parent.
• Jaeden needs to fight for what he wants. He needs to choose the person that makes him feel safe and she is his safe space.
• Jaeden said he chose her and loved her, she said I’ve heard it before, and she needed him to [unsure of word used here]
• CAS might put him elsewhere, daddy, [Pratt] or strangers.
• Daddy was terrible. He crushed her but apparently Jaeden isn’t afraid of him or at least he said that to the CAS.
• He shouldn’t have lied. He needs to tell the truth now and tell them he is.
• She tried to protect him and that’s why she is broken.
• This is likely their last conversation in a long time. She loves him.

[81] The father confirms that Jaeden was crying and upset after this call. This was the evening Jaeden asked his father to stay overnight and sleep in his room with him.

[82] On April 1, the CAS decided that with the consent of both parents, Jaeden would remain at Mr. Pratt’s for the time being. If the mother removed him from Mr. Pratt’s care, the CAS would remove Jaeden from her and replace him with Mr. Pratt. If the father removed Jaeden from Mr. Pratt the CAS would not intervene as there were no protection concerns with respect to him.

[83] On April 6, the mother spoke to Mr. Pratt, after which the only contact he allowed the father with Jaeden was an hour on April 9 and a few minutes on April 11.

[84] The CAS looked into and approved the mother’s safety plan. On April 6, the CAS told her Jaeden could return home when she felt ready. The mother thought that would be in about a week.

[85] The father learned from Mr. Pratt that the mother was coming to get Jaeden on April 13. He went to Mr. Pratt’s that day intending to take Jaeden home with him. On arrival Mr. Pratt told him the CAS had instructed him to release Jaeden to his mother. The father tried to contact the CAS worker to verify this, but she was unavailable. The police arrived. It is not in evidence who called them. The police told him to wait in his car while they went inside. The mother arrived shortly, the police exited the home, telling the father Jaeden would be leaving with her. The father left. The mother says when she got Jaeden home, he made comments to the effect that he wanted to kill himself or kill his father if he has to spend time with him. On April 16 she left a voice message with the CAS. She said that Jaeden was terrified over an incident where his father tried to kidnap him from Mr. Pratt’s house on Monday [April 13].

[86] The father explained why he went to get Jaeden on April 13. He said he had not heard from the CAS that it agreed the mother could resume care of Jaeden or from the mother’s lawyer with the medical disclosure he had requested in relation to March 29 and 30. Accordingly, he was agreeable that Jaeden should return to her care. I accept his explanation. It was not contradicted. His actions did not amount to an attempt to kidnap Jaeden.

[87] Since April 13, the contact Jaeden has had with his father has been sporadic and problematic.

[88] The first contact was a two hour visit on April 29 at the mother’s house. The mother says Jaeden came in six or seven times for a hug and a break from his father. The next visit was May 13, again at her house. The mother describes the father and son outside yelling at each other for 30 minutes. They took a walk and on return Jaeden said to her that he never wants to see him again. The father said that on their walk Jaeden spontaneously asked him “why do you not want me to have a Children’s lawyer?” Jaeden did not know about the OCL from his father.

[89] On May 18, Jaeden yelled out the window to his father saying he would not leave the house until his phone charged. The father remained outside, waiting. Later, Jaeden did come out, holding out a remote and saying, I’m not speaking to you; I want you to fix this for me. The father declined and said Jaeden was rude. As he was. The mother overheard but this did not correct Jaeden’s behaviour.

[90] Jaeden also told his father he could go and open the pool while he was waiting for him.

[91] I find the mother supported Jaeden’s decision to not come out until his phone had charged. At one point she said she had called her lawyer who said Jaeden could come out after his phone charged. She told the father he could talk to Jaeden through the door until then.

[92] The father says he overheard the mother telling Jaeden she was doing legal research so that she would not have to make him available for access. At 3:14 he heard her say to Jaeden you just have to wait a few more minutes and he will be gone. Then Jaeden popped his head out the door and made rude remarks to his father. Jaeden closed the door. The father said he could hear them giggling inside.

[93] On May 20, Jaeden refused all suggestions made by his father for the visit. He would not leave the front step. Jaeden was rude to his father. The father tried to start a conversation about healthy expression of feelings, but Jaeden went into the house.

[94] Recent attempted visits have basically been standoffs where the father waits, and Jaeden does not come on the visit. The father’s technique of standing by throughout the time allotted for the visit has not been productive. His efforts to reason with Jaeden did not succeed. These attempted visits do not show a mother who is doing her best to encourage her son to visit with his father. She does not correct him when he is rude and disrespectful to his father. Nor does Jaeden appear afraid of his father. He feels free to tell his father what he will and will not do, to speak rudely to him and to refuse to follow his instructions.

[95] The mother says Jaeden requires urgent mental health attention to calm down after engaging with his father.

Jaeden

[96] The mother recounts many statements of what Jaeden says to her. These were not tendered as admissible hearsay offered to prove the truth of their contents. Many are not actual quotes and do not specify time, place or context. For example, the mother deposes that Jaeden tells her his father does not love him.; that he does not want to spend time with his father; that he is afraid of him. Others are at odds with a nine year old’s speech: “Jaeden has told me that he feels no one is listening to him and people are forcing him to spend time with his dad, and endure the continued conflict and accompanying maltreatment, all of which only exacerbates his emotional state and opposition to spending any time with Ian.”

[97] The CAS social worker interviewed Jaeden at his school on March 9. Her notes record that Jaeden said he is not scared of his father but wants him to be nice. Jaeden said his father is mean about his mother because he lies about her. He did not want to tell the social worker how he knew this. Jaeden said if his father was not mean about his mother, he would be fine to visit him. He said his father had never hit him or dragged him out of his mother’s house. His father had carried him out to go to school when he did not want to go. He also said his father makes him do things he doesn’t want to do like carry groceries. He said his father will raise his voice. Jaeden told the social worker that he did take a knife out on his father because he was stressed. Jaeden stated he wanted his father to return to live with him and his mother. He talked about the last time they went skiing and how much fun he had.

[98] The father was present in Mr. Pratt’s house on March 30 when the mother called Jaeden. Mr. Pratt’s notes have already been referred to. The father did not hear the call but was in the living room when Jaeden returned after it. His observation was that Jaeden was crying and looked hurt. He heard Jaeden say he did not want to talk to his mom for a little while. Both men comforted Jaeden and they all spent a quiet evening together. Jaeden asked his dad to stay overnight with him.

[99] Jaeden’s teacher wrote a letter dated April 9, 2020 to the CAS social worker. The letter was tendered by the mother. The teacher reports that Jaeden isolates himself from the group and needs much reassurance to join the group whether in class, music or gym. She observes that he is often very tired and says he fell asleep in free play time once. Jaeden has told her he does not sleep well. The teacher has noted that Jaeden does not follow instructions the first time. She said he avoids work at any cost, regardless of how menial, such as sharpening his pencil. She describes Jaeden as very intelligent, but he has difficulty concentrating.

[100] She also observed that Jaeden has trouble separating from his mother on arrival at school. He holds tightly to her, crying. Once with the mother’s permission the teacher pulled him off his mother. He went hysterical, was on the floor crying in the fetal position, but he did remain at school. When the teacher asks how he is doing, he often replies he would like to go home to be with his mother.

[101] Other observations were that Jaeden often seems sad, afraid of making mistakes, is nervous and overly careful on trying new things.

[102] The mother acknowledges numerous struggles getting Jaeden to school. She attributes this to “Jaeden’s biggest fears this school year have been that his father will come to pick up Jaeden instead of me (and no one will stop hm) or that something will happen to me while he is at school and he will have to stay alone with his dad.” These fears were not confirmed by the teacher’s letter.

[103] The teacher’s observations raise several significant concerns about Jaeden’s wellbeing. Jaeden has trouble following instructions at school, is work avoidant, has unusual difficulty separating from his mother, and the mother as well as the father has experienced difficulty getting him to school.

[104] The mother attached a CAS note dated April 17 of a telephone call from Dr. Fraser-Roberts about Jaeden. The note is admissible to show the information received by the CAS including that the doctor put in a referral to CHEO mental health for Jaeden. It is not admissible for the truth of what Jaeden said to Dr. Fraser-Roberts. The threshold test for necessity and reliability may well have been met if Dr. Fraser-Roberts herself deposed an affidavit. As it is, there is no information about the context of her conversation with Jaeden. Who initiated the call? Was the mother on the call or standing by Jaeden during the call? Did the conversation proceed by question and answer, or did Jaeden spontaneously offer the information?

[105] The mother also exhibited a letter from Dr. Fraser-Roberts of the same date. Parts of the letter will be admitted as Dr. Fraser-Roberts is Jaeden’s physician, however other parts go beyond the scope of that role. As his physician Dr. Fraser-Roberts decided to request a psychiatric assessment of Jaeden from CHEO Mental Health. The part of her letter that explains why she did this, based on information received from her patient is admissible. She writes that Jaeden confided to her that he is afraid of his father, scared to be alone with him, that his father twisted his arm, yells at him and is emotionally hurtful, making him feel bad about himself. She writes that Jaeden said he will try to kill himself if he is placed in his father’s custody. Dr. Fraser-Roberts recommends ongoing therapy for Jaeden with child counselors through Wabano, CHEO or clinical psychology. She also recommends ongoing safety assessments for Jaeden in case of escalation of thoughts of self-harm.

[106] The balance of her letter including comments about the mother and recommendations pertaining to short term custody and access are not admissible.

[107] After hearing from the mother and Dr. Fraser-Roberts the CAS interviewed Jaeden on April 17, 2020. When the video call began his mother called Jaeden to come and sit down to talk. Jaeden said he didn’t want to talk, that this was the fourth time he has talked to people this week, and this is what he was practicing with his therapist and doctor. The interview is very different from that of March 9. In summary Jaeden said very negative things about his father but did not provide examples or details. Instead he would say things like, “I can remember but it hurts to talk about”, “ there’s a lot, there’s just a lot,” or “I can’t think of one [example] right now.”

[108] Jaeden spoke in generalities such as his father would yell, hurt him, try to pull him out the door. He said his father twisted his arm once. Jaeden said he hates his father, he wants him to die, and he wants to die because of him. Jaeden said this was because his father punches and bullies him but could not say any one time it happened, only that it “hurts to talk about it.” Jaeden said he worries about his mother losing him and he worries about his dad abusing him like he always does. Jaeden said he had to pretend that he’s wonderful because if he doesn’t “he’ll destroy my brain.” When he goes to his father’s place his father “snaps me like a toy/twig” [interviewer not sure which word was spoken]. He “destroys and crumples me up like paper.”

[109] Jaeden says his father uses words that hurt. Asked what kind of words he said, Jaeden says he can’t explain it.

[110] Jaeden’s mother rejoined the interview. Jaeden said his father lies all the time. The worker asked for an example and the mother interjected, tell her about the squid. From what Jaeden then said this seems to be a reference about a show he and his father had watched.

[111] The mother also told Jaeden to tell the worker what he had told her in the bathroom. Jaeden said, “when I say something dad says why, why, why.” The interviewer noted that Jaeden had excused himself earlier to use the washroom. It appears his mother had spoken to him there about the interview.

[112] The mother also told Jaeden to tell the worker what he has been telling her to do. Jaeden said when he was three, he started telling his mom to leave his dad. The worker asked how he remembers that he was three when he said that. His mother answered, he knows because he has been repeating it since he was three. The mother also prompted Jaeden to say why he was not wanting to go to school. Jaeden answered bullies, then added he was afraid dad is going to kidnap him just like he did three days ago. I conclude this is a reference back to April 13, the day his mother brought him home from Mr. Pratt’s house.

[113] Jaeden’s opening remark about practicing for this interview is not entirely clear but raises a question of influence. He was unable to give particulars to the interviewer before his mother rejoined them. It is problematic that the mother joined the interview, prompted Jaeden and actually answered a question for him. More so given that she was cautioned by the interviewer the day before about the effect this might have on the appearance of independence of Jaeden’s statements. The particulars he provided with his mother present were minor in comparison to the strength of the words he used against his father. His use of the word kidnap in reference to April 13 is concerning too.

[114] Jaeden’s description of his mother stands in stark contrast to his description of his father. He said she is nice and kind, they never argue, she is the opposite of his father. “My dad’s a terrible person.”

[115] When the interviewer suggested they take a little break, Jaeden replied, “they are not allowed to have a break – mom isn’t allowed to have a break because of everything dad does.” In my view Jaeden is referring to when his mother sent him to Mr. Pratt’s so she could have a break. I conclude Jaeden was reflecting something his mother had said to him, by way of blaming his father for current events and thereby involving Jaeden in adult conflict.

[116] What Jaeden said in the interview is important. His statements reveal much about his state of mind. Less reliance can be given to his statements for the truth of what he said, for reasons already noted.

Mother’s Views of Father

[117] The mother holds an extremely negative view of the father. Seemingly developed since the separation, it is unabated. She messaged the father on April 20, saying the following:

• You destroyed his world…. He watched you destroy me. …You keep making selfish choice after selfish choice…. You are broken…. You tore up your family and abandoned them without discussion or basic decency …. Have some basic shame. Do something for once in his life he can be proud of, …
• He has always hated you.
• He had you pegged by 4 years old and has been trying to get me to leave you since.
• He cries because he has parts of you inside him.
• He is going to destroy you, so you stop hurting us (yes, us – because he loves me truly, and sadly, probably more than he loves himself; because he hates himself, because of you.
• He is like me. He is not like you.
• He’s me, Ian.
• You are the monster under the bed and always have been.
• He’s been calling you Ian for over a year.

[118] Unrelated to her views of the father, but in a similar expression of how she views her relationship with Jaeden the mother wrote to Ms. Paul about Jaeden in 2019. He was visiting Ms. Paul and wanted to stay longer to help with a dog that had been quilled. The mother insisted he come home and wrote this: “he’s the only one who chooses me. He’s the only one I know is safe.” “I can’t lose him too. You can’t keep him from me.” “he’s mine.” “I need him here.”

[119] On February 19, 2020, the mother told the CAS worker that the father is not “dad” material. She said he has no parenting capacity and cannot understand Jaeden’s emotions and lacks empathy. That he and Jaeden never had good relationship. She said Jaeden hadn’t seen his dad for two months and his anxiety and anger are much less, that he does better when he does not see his father.

Allegations of Abuse Against Father

[120] The respondent deposes that it was only after the separation that she has had the space and meaningful counselling which has enabled her to understand how the applicant manipulated herself and Jaeden, psychologically and emotionally, and that his treatment of them was abusive. She said he used control and guilt, gaslighted and belittled them. He lacked empathy.

[121] More recently she told the CAS he sexually assaulted her. She said she had a signed statement of agreed facts in which he admitted to this. This is a reference to the separation agreement which includes in the appendix the statement that, “Contact with these individuals has resulted in Ian Stakenvicius engaging in sexual assault against Tracy Coates, as well as [another named woman] at the behest of Rebecca Paul, …”.

[122] Despite having signed the agreement the applicant denies any and all abuse to either the respondent or their son. Based on the evidence in the motion record I find the allegations have not established abuse on a balance of probabilities.

Father’s Mental Health

[123] In 2019, the father arranged to see a psychiatrist for help with anger, anxiety and depression, and connected receiving the help to improving his relationship with his son.

[124] During a safety assessment done in March 2020 by the CAS the father acknowledged he was seeing a counselor and would like to Jaeden to go too. He recognized Jaeden has anxiety from his leaving the family home. He completed the anxiety program at CHEO from October to December 2019. I conclude that the father has insight into his personal issues and has sought professional help for them.

Parents’ Credibility/Reliability

[125] It is clear that neither party has a high regard for the credibility or reliability of what the other says. Many of the factual disputes in the motion come down to a he says/she says. Accordingly, I have looked for objective measures to assist in assessing the reliability and credibility of each of them.

[126] The mother rightly points out there a number of misstatements in the affidavit the father filed in support of his urgency request. At that time, he was relying primarily on what he had been told by other people with respect to the events of March 28 to 30. The document disclosure that provided most of his information had not yet been provided. I find he was wrong or misinformed but not lying.

[127] Independent sources did not show the father to be unreliable or lacking in credibility. On several occasions he acknowledged his responsibility, including in ways not favourable to himself. His description of the time he spent with Jaeden at Mr. Pratt’s house was consistent with what Mr. Pratt reported. His belief that the mother was influencing Jaeden was also borne out by other sources.

[128] When the father provided first hand evidence, I find he was a generally reliable and credible witness.

[129] I have already found that the mother is not credible in her denial of a diagnosis of Borderline Personality Disorder.

[130] The evidence the respondent provided about Ms. Paul is so partial that it amounts to lying by omission. The respondent described Ms. Paul as a sex worker who, with the applicant, manipulated her into having a relationship. She describes her as a person who should have no contact with her son. She implies she may also endanger Jaeden’s health by disregarding COVID-19 health recommendations.

[131] The texts attached to Ms. Paul’s affidavit show quite a different story. In January 2019, the respondent told Ms. Paul that she had romantic feelings for her. They did enter into a relationship. She sent Ms. Paul several texts saying how much she loved her, praising her for the way she looked after the respondent and Jaeden, and how important Ms. Paul was in Jaeden’s life. Ms. Paul describes their relationship becoming strained when Jaeden had wanted to stay with her to help with the dog and the respondent accused her of wanting to keep Jaeden from her.

[132] On August 12, 2019 the mother advised the father she was at the courthouse filing the separation agreement. A subsequent search failed to confirm that she had done so.

[133] The response to the urgency request her previous lawyer sent the court advised in reference to March 29 and 30 that the mother required some personal time for herself due to the anniversary of her father’s death and to complete the court documents but made no mention of the phone calls and trips to hospital on those days. Whether the omission is the responsibility of the lawyer or the mother is, however, not known. I do find that the mother has minimized the level of her distress on March 29 and 30.

[134] The respondent’s reliability is also impacted to the extent I have found her to dramatize or overstate events. Although she states in her affidavit that she may be hypervigilant toward Jaeden to protect him from his father’s abuse, I was unable to conclude that she has good insight into her share of responsibility for Jaeden’s troubles.

Analysis

[135] The Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am. s. 16 states in part as follows:

Order for custody

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

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Factors

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

Past conduct

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

Maximum contact

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

[136] The list of factors to consider in relation to child’s best interests in the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am. s. 24 (2) is also of assistance:

Best interests of child

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

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 ; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

[137] The mother’s position is that regardless of the court’s conclusion about alienation it is in Jaeden’s best interests to remain in her primary care. Access should not be forced against his wishes. She submits counselling for the three family members should commence as soon as possible and access should resume under the direction of the counselor. She says that step should be fully explored before consideration is given to removing the child from her care. In particular she submits that Jaeden is not emotionally and physically safe with his father. She alleges a pattern of threatening and controlling behaviour by the applicant to her and the child during and following cohabitation. She points to Jaeden’s threats to harm himself and his father and his anxiety as strong factors against changing the current residential arrangement. Even if the court finds the environment, she created was harmful to the child, on a short term basis the mother submits it is better for Jaeden to stay with her, than to undertake the risks associated with a change in residency.

[138] The mother relies on C(W) v E(C), 2010 ONSC 3575 in support of her position. The child in C(W) was 13 years old and had lived with the mother for the almost ten years of separation. By time of trial, father had not seen the child since May 2007. The trial judge found overwhelming evidence the mother had alienated child. There was an OCL and a section 30 assessment, both of which took the position that the child should remain with mother. The section 30 assessor agreed that the alliance between mother and child was unhealthy but said there was no way to address it now. The assessor added that if the child were younger and the evolution not so protracted it would have been different.

[139] These are important factual differences between C(W) and our case. Jaeden is nine years old. It has not been very long since he has seen his father. The positive contact between father and son in March speaks strongly that alienation was not then complete.

[140] The mother submits that the trial judge in C(W) set out four possible courses of action in a case such as this. One was that everything short of removal should be attempted before a reversal of custody is made. The trial judge was summarizing expert testimony when he referred to the four possible options. He was not making a ruling or a statement of law and was incorrectly described by counsel as doing so.

[141] What the trial judge did do is to analyze the risks and benefits of the options on a short and long-term basis and choose the least detrimental option. He concluded risk of removal of the child from the mother was too great.

[142] For these reason, I do not agree that C(W) stands for the proposition that everything short of removal should be tried before a child should be moved from parent to another. To the contrary C(W) appears to be a sad example of a situation that went on for too long without the type of intervention that might have preserved the child’s relationship with the father.

[143] The mother identifies the risks she sees in placing Jaeden with his father. She says the father lacks insight into his contribution to problem. I have found to the contrary. She points to Jaeden’s repeated threats of self-harm and/or to kill his father if he has to live with him. Jaeden has made these statements directly to his mother and to his physician in a telephone call, the surrounding circumstances of which are unknown. He told the CAS worker on April 17 that he wants to die because of his father, and he wants his father to die, but did not include himself as the instrumentality of either death. There is significant evidence which I have accepted showing the mother exerts significant influence over Jaeden. There is also the fact of what Jaeden said to the CAS worker on March 9 before any of these recent events took place, namely that he was not afraid of his father, the fun he had skiing with him recently, and his wish that his father would return to live with him and his mother. There is also the objective evidence from Mr. Pratt that Jaeden did not seem to be afraid of his father and their visits went well at his house. The father also confirms this and makes the point that on March 31, Jaeden asked him to stay over and spend the night in his room. Further Jaeden’s rude and disrespectful behaviour to this father, at least when his mother is present, in s not consistent with being afraid of him either. To date the evidence that Jaeden has engaged in self-harm is of hitting himself in the head described in the CHEO intake report in 2019. He has not attacked his father but did brandish a kitchen knife at his father on October 23, 2019.

[144] The mother also points to the stronger emotional attachment Jaeden has to her than to his father. She submits Jaeden’s strong aversion to his father combined with his threats make it too risky to even require access against Jaeden’s wishes pending the counsellor’s recommendation and/or the completion of the agreed upon, but yet to start section 30 assessment of the family. Jaeden is very attached to his mother. I have concluded that the attachment has unhealthy aspects to it. At nine years of age Jaeden worries extensively about his mother. When he is at school he worries if she is alright at home without him being there. His worries extend into global issues that are well beyond him. There is evidence that his mother has spoken to him about aspects of this litigation. She has also expressed that Jaeden is her and how much and why she needs him. that she needs him.

[145] The mother’s views of the father are extreme and entirely negative. There is evidence that that she has not kept these views from Jaeden. One example is his statement to the CAS interviewer on April 17 that his mother is not allowed a break because of what dad does. Another is Jaeden’s use of the word “kidnap” in relation to April 13. He has referred to his father as having destroyed the family. That and other comments referred to elsewhere are indicative of the mother communicating to Jaeden about adult issues.

[146] The mother submits that the father does not have a plan in place to deal with issues Jaeden may encounter at his home. She is correct that he did not articulate one. However, the counselor for Jaeden and his father has been retained. One hopes she will be able to get started soon as Ottawa is now in its second phase of reopening. One assumes the CAS will continue to be a resource to the father. Dr. Fraser-Roberts has made a referral to CHEO Mental health for Jaeden. Jaeden has counselor in place at the Youth Services Bureaus who can be contacted from his father’s house on an as needed basis. The father does need to acquire additional techniques to address and respond to Jaeden in ways that hopefully would not result in arguments or standoffs between them.

[147] Jaeden has reported that his father lies about his mother and says mean things about her. He is a child who has been caught in the middle of his parents conflict between themselves and about himself. The father must be vigilant to ensure he does not speak in a negative, critical or derogatory way to Jaeden about his mother.

[148] The father ‘s view is that this is clear case of serious alienation by the mother and that it is in the child’s best interests for the court to intervene and place the child with him on a temporary basis while there is still time to protect his relationship with their son. Both parties referred to paragraph 135 in Fielding v. Fielding, 2013 ONSC 5102 as authority that there is a four part test that must be met before the court can make a finding of parental alienation:

[135] Part of the generic report listed 17 alienating strategies which foster unjustified rejection of the other parent and eight behaviours displayed by an alienated child. These are derived from Dr. Baker’s research with parents who, based on their reports, she concluded had been alienated as a child. Dr. Baker’s opinion is that parental alienation is established if:

• there was a prior positive relationship with the targeted parent;
• there is an absence of abuse by the targeted parent;
• there is use of many of the alienating strategies; and
• the child exhibits most of the alienated child behaviours.

[149] That paragraph sets out the opinion of an expert witness who testified at the trial. The witness held the opinion that these four factors established parental alienation. Counsel must be careful not to confuse a judge’s summary of witness testimony with a finding of fact or ruling of law by the judge. The view of the court in Fielding is set out elsewhere in the decision.

[150] There is a contact problem between the father and Jaeden. There was conflict between them during the parent’s cohabitation, much of it in relation to the father trying to complete Jaeden’s morning and bedtimes routines in an organized and timely way. Jaeden has difficulty following instructions the first time he is asked, and he is averse to performing what might be described as work like functions. The parents did not agree on the parenting techniques to be used on these occasions. My view is that this is the genesis of the relationship difficulties between father and son.

[151] This division of parenting responsibility continued after separation but with two exacerbating factors. The father came to the mother’s house to perform many morning and evening routines, and for significant other visits with Jaeden. This would inevitably expose Jaeden to ongoing parental conflict over him. Second, the mother was greatly upset by the separation. Her written communications to the father are full of blame, vitriol and disgust. I conclude from her writings that she now views herself and Jaden as a family unit that excludes or should exclude the father. Jaeden has been exposed to his mother’s views of his father. Many of Jaeden’s anxieties relate to the wellbeing of his mother. Recently he has experienced her emotional distress, and her adverse reaction to his spending time with his father at Mr. Pratt’s house and to his father’s motion for increased parenting time.

[152] I have also found that the mother has been supporting Jaeden’s negative attitude to his father during recent attempted visits. Difficult as it is on a written record, I have the impression she has a sense of justification when recounting that Jaeden chose her in Sky World but not his father and that he started telling her when he was three years old that she should leave him.

[153] There is evidence of a pattern in which the mother turns hard against people she was once close to. She expressed strong feelings of love for Ms. Paul and later described her very harshly. She chose Mr. Pratt to be Jaeden’s godfather, then spoke negatively about him to Jaeden in a phone call.

[154] I have found the father was not abusive to Jaeden. As recently as April the CAS recorded that there were no protection concerns in regard to the father. Nor has the evidence established on balance of probabilities that the applicant was abusive to the respondent.

[155] Jaeden is an anxious child. He experiences challenges at school and at home. He was able to adapt to living with Mr. Pratt and with the increased presence of his father during those several days. His condition has deteriorated since he returned to his mother on April 13. She maintains this is in response to seeing his father at Mr. Pratt’s and to the father’s alleged attempted kidnapping on April 13. There is objective evidence that Jaeden got along well with his father at Mr. Pratt’s. I presume Jaeden knew his father came to get him on April 13, and he likely saw the police come to the house, but there is no evidence of attempted kidnapping. My conclusion is that Jaeden’s strong words against his father and his reactions to his father’s attempts to visit with him since April 13 him are well out of proportion to actual events.

[156] Putting off a decision until counseling occurs, or a section 30 assessment is complete, or a trial is concluded, is not always best decision. Even knowing that a motion record is not perfect, if satisfied the written record supports a clear finding that the parent with primary care is contributing strongly to or is actually causing contact problems between a child and the other parent, the motion judge may, after weighing the risks attendant with each plan, appropriately decide to reverse the existing parenting arrangements.

[157] The court in Ma.M. v. A.W.M., 2019 ONSC 2128 held that:

[33] A finding of parental alienation can be made at the interim stage and on a written record, particularly when the evidence overwhelmingly points to this conclusion. As the court noted in Hazleton v. Forchuck, 2017 ONSC 2282, 93 R.F.L. 7th 254, at para. 2, the urgency raised by parental alienation necessitates early and decisive intervention by the court. In Malhotra v. Henhoeffer, 2018 ONSC 6472, Justice Nicholson held that parental alienation was a legal concept as opposed to a mental health diagnosis, and as such, the court could make a finding of alienation on an elaborate analysis of the facts alone without expert evidence

[158] In Hazelton v. Forchuck, 2017 ONSC 2282 the court also said:

[75] However, as noted at the outset of these reasons, there is one thing on which all participants agree – where parental alienation exists, it is manifestly important that steps be taken immediately. If they are not, the situation will only get worse. If the alienating parent continues to have unfettered access to the children, there is little doubt that the poisoning of the children’s minds will continue. At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible.

[159] I have considered the proposals of both parents in light of my findings of fact and the statutory principles and factors pertaining to Jaeden’s best interests. The risk to the mother’s plan is that she and Jaeden will continue on the current path with the result that Jaeden will not have a relationship with his father, and that he will continue to be an anxious child with some important unhealthy aspects in his attachment to his mother. The risk to the father’s plan is that Jaeden might attempt to harm himself or his father. There is also a risk that he will become more anxious about his mother’s wellbeing. And there is the risk that the slow reopening of services due to COVID-19 will delay their access to the help needed for a successful outcome.

[160] I have no doubt that the risks inherent in the mother’s plan will actually occur if her plan is accepted by the court. The risk of Jaeden attempting to harm himself or his father is a risk of harm that would be serious, but I find it is not a risk that is likely to occur. It is also risk that can be mitigated. I conclude it is in Jaeden’s best interests to move in with his father at this time, subject to terms which will be set out below.

The Parenting Order

[161] This is a temporary order with respect to the parenting of Jaeden. The order contains a number of terms and conditions and is reviewable.

1. Jaeden shall reside with his father who shall have decision making authority for Jaeden with two exceptions. The father shall not change his current place of residence. He shall not make decisions with respect to Jaeden’s mental health treatment, other than in an emergency, without the agreement of the mother or order of the court. If a mental health emergency occurs for Jaeden, the father shall forthwith notify the mother.
2. The mother shall deliver Jaeden to the father at the office of the Children’s Aid Society located at 1602 Telesat Court, Gloucester, Ontario at 12 noon on June 30, 2020. Both parents shall respect COVID -19 safety recommendations throughout the exchange. A copy of this decision shall be delivered electronically by the court to the Children’s Aid Society, attention Julie D’Aoust with the request that the CAS facilitate the transition of the child to the father.
3. Prior to June 30, 2020, the father shall safety proof his home to remove or place out of reach of Jaeden sharp knives, other sharp instruments or any item that might be used to inflict harm to a person.
4. The father and Jaeden shall reside alone in the father’s home and shall adhere to the public health recommendations with respect to COVID-19 at all times.
5. The father shall forthwith retain a qualified, independent social worker to provide him parenting advice. He shall provide the social worker with a copy of this Endorsement and shall obtain and follow advice on an as needed basis to assist in his parenting of Jaeden.
6. The mother shall provide a copy of this Endorsement to her psychiatrist and to her social worker at the ROH so that one or both may advise her of any assistance they can provide to her in relation to the issues identified herein.
7. Counsel shall notify each other and the court when the steps in paragraphs 4 and 5 have been taken.
8. The father shall schedule two weekly sessions, virtual or in person, for Jaeden with his counsellor at the Youth Services Bureau and shall ensure that Jaeden attends these sessions. In addition, the father shall ensure that Jaeden has the information and ability necessary so that he can contact this counselor on his own at other times as he wishes.
9. Subject to the ability of the CAS to bring a motion to me on notice to both parties if it wishes to dispute this provision, the CAS case worker shall check in with Jaeden at least twice each week with a view to ascertaining his well-being and in particular his mental well-being. Check-ins may be virtual or in person depending on the stage of re-opening at the time.
10. Subject to the ability of the CAS to bring a motion to me on notice to both parties if it wishes to dispute this provision, it shall conduct ongoing safety assessments for Jaeden in case of escalation of thoughts of self-harm.
11. Counselling with Dr. Matheson shall commence as soon as Dr. Matheson is able to do so. In the meantime, counsel shall provide her with a copy of this Endorsement If the parents do not agree on the scope of Dr. Matheson’s retainer I may be spoken to.
12. For the first two weeks in which Jaeden is in his father’s care there shall be no contact between Jaeden and his mother, except as specifically provided in this order. Both parents shall advise Jaeden of this provision of the order without commenting on it except to say that this is the judge’s order that must be complied with by the whole family. Seven days after Jaeden has been in his father’s care, a telephone call shall take place between Jaeden and his mother. Counsel shall arrange the specific time for the call which shall be placed by the father. The telephone call shall not extend for more than five minutes. The mother shall not discuss the court case with Jaeden. She shall re-direct him if he asks her about it. The purpose of the telephone call is for the mother to reassure Jaeden that she is well and that he has no reason to worry about her.
13. Telephone calls shall occur between the mother and Jaeden ten days and thirteen days after Jaeden has been in his father’s care. The calls shall be arranged and placed as set out in paragraph 12. The purpose of the calls is as set out in paragraph 12. The duration of the calls shall not extend for more than ten minutes.
14. Commencing in the third week after Jaeden has resided in his father’s care, the mother shall visit with Jaeden once a week in a community location to be agreed upon between counsel. The first visit shall be for two hours and each week an additional hour will be added to the visit. The father shall deliver Jaeden to the visit location, shall depart the location and shall return at the appointed time to pick him up. During these visits the mother shall not question Jaeden about his time with his father or discuss the court case. If Jaeden raises the topics of court or when he may see more of his mother or return to live with her the mother shall re-direct him by telling him these are adult issues and/or the judge will be deciding what should happen.
15. The first review of this order will be scheduled to take place in six weeks. The purpose of the review is to update the court as to Jaeden’s progress in his father’s care, to review the compliance of both parties and Jaeden with the order, and to provide the court with any of the productions ordered below that may be of assistance to the court. The review shall also consider appropriate expansions to the mother’ parenting time having regard to her compliance with the order and other relevant information touching on Jaeden’s best interests.
16. The review shall be based on affidavit material. The affidavit material shall be restricted to events occurring after June 4 and exhibits arising from the production order made below, or documents from service providers as to matters arising after the release of this Endorsement. The applicant’s materials are to be delivered ten days before the review date, the respondent’s materials five days after service, and a brief reply two days after service of the responding materials.
17. If the parties wish to have a conference with another judge in advance of the review, counsel are to advise me, and I will see that the necessary arrangements are made.
18. This order is enforceable by the Ottawa Police Service and any other police authority where Jaeden may be located.

[162] I hope the mother will find a way to make space for Jaeden’s father in Jaeden’s life. Jaeden needs both of his parents. He should not have to choose between them or worry or feel guilty about having both parents in his life. He is a boy with a deep love for his mother and his need for her in his life is strong. As his mother notes, Jaeden’s Indigenous heritage is so important to his sense of self and personal identity. At the review I hope more parenting time can be restored to the mother.

[163] I hope the father will be sure to say and do nothing that Jaeden could perceive as a slight or negative comment about his mother. I hope he will be sensitive to the fact that Jaeden will be missing his mother and perhaps worrying about her. I also hope the father will avoid all physicality in his parenting of Jaeden. He should let Jaeden know when he can speak to his mother and start to see her again. He should tell him when the judge will be reviewing the case and will decide what will happen next. The father should actively avail himself of parenting advice during the coming weeks.

Production Order

[164] The parties shall each provide their counsel with the necessary written authorization to obtain Jaeden’s CHEO records. Counsel shall agree which one of them shall then obtain the records and produce a copy to the other on receipt.

[165] The applicant shall obtain and produce a copy of his psychiatrist’s file, or he shall obtain a report from his psychiatrist covering his involvement with the applicant, any diagnoses made, and treatment provided, and to the extent of the psychiatrist’s knowledge, the applicant’s past psychiatric history.

[166] The respondent shall obtain and produce a copy of her ROH record. Alternatively, she shall obtain a report from her current psychiatrist covering his involvement with the respondent, any diagnoses made, and treatment provided, and to the extent of the psychiatrist’s knowledge, including based on the ROH records, the applicant’s past psychiatric history.

[167] The parties shall each provide their counsel with the necessary written authorization to obtain the Ottawa Police Service Occurrence reports pertaining to one or both of them for the period commencing March 28, 2020. Counsel shall agree which one of them shall then obtain the reports and produce a copy to the other on receipt.

Costs of the Section 30 Assessment

[168] The father is employed as an IT Consultant. His income in 2018 was $105,045. The mother is a lawyer. Her most recent employment was as a professor at University of Ottawa. This employment ended in July 2019. She is currently unemployed and receives a monthly settlement of $4,800. Both parties say their incomes are currently in flux.

[169] The costs of the section 30 assessment shall be shared between them in proportion to the line 150 total income shown on their 2019 Income tax returns. This order is subject to adjustment by agreement or by judge’s order made as part of the final determination of the case.

Case Management

[170] This case requires individual judicial case management. I will case manage the file as to procedural matters and contested motions. In the event settlement discussions are requested or appear appropriate to me, a different judge shall be appointed for that purpose.

Costs

[171] If the parties are unable to agree on costs the issue shall be determined by written submissions. These shall not exceed three pages in length, plus attachments of Bills of Costs and any Offers to Settle exchanged in relation to the motion. The applicant shall deliver his submissions by July 15, and the respondent by July 31. The applicant my exercise a very brief right of reply if necessary, by August 7, 2020.

J. Mackinnon J. Date: June 29, 2020

COURT FILE NO.: FC-20-168 DATE: 2020/06/29 ONTARIO SUPERIOR COURT OF JUSTICE RE: Ian Stakenvicius, Applicant AND Tracy Coates, Respondent BEFORE: Mackinnon J. COUNSEL: Jodi R. Fleishman, for the Applicant Carol Craig/Ira Marcovitch, for the Respondent ENDORSEMENT J. Mackinnon J. Released: June 29, 2020