Gostautaite v. Menendez, 2020 ONSC 4396

NEWMARKET COURT FILE NO.: FC-19-58363-00 DATE: 20200717 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Rasa Gostautaite, Applicant – AND – Alfredo Gonzalez Menendez, Respondent

Counsel: Rachel Radley, Counsel for the Applicant Dion McClean, Counsel for the Respondent

HEARD: By Teleconference on July 7, 2020

RULING ON LONG MOTION

JARVIS J.

[1] On July 7, 2020 the parties argued a long motion dealing with parenting of their ten-year-old daughter (“EM”). As noted in my preliminary Ruling released later that day, these proceedings are high conflict. Directions were given with respect to the involvement of a parenting co-ordinator, appointment of the Office of the Children’s Lawyer (“OCL”), and authorizing the applicant (“the mother”) to make medical decisions for EM, a child who has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and a learning disability, and who was demonstrating behavioural challenges. The parties were informed that a decision on the balance of the motion relief sought would follow.

[2] The mother seeks an Order, or Orders, implementing the provisions of at least two parenting schedules upon which the parties agreed in court, appointment of the OCL, a re-assessment of the child by her psychiatrist, and related parenting relief, including police enforcement of any Order made. As noted in the preliminary Ruling, the respondent (“the father”) brought a cross-motion for temporary custody of the child and other relief without leave or prior notice after directions for the mother’s motion were given. I ruled that the cross-motion was irregular and not authorized, but that insofar as the court would be dealing with the child’s parenting arrangements some of the relief requested could fall within the wide ambit of the court’s discretion.

Background

[3] The parties are the unmarried parents of EM. The mother claims that the parties separated in January 2016 and that they had an on and off relationship during which she was the child’s primary caregiver. The father claims that the parties had a long-standing relationship that lasted thirteen years during which they cohabited from November 2006 until October 2018 when EM was hurt during an argument between the parties and the mother charged with assault. [1] The York Region Children’s Aid Society (“the Society”) became involved and the mother’s access with EM was subject to its supervision for what the father claimed was the following ten months.

[4] The conflict displayed by the parties’ disparate narratives about the nature and duration of their relationship is mirrored and amplified by the conflict in their evidence about each other’s failure as a parent in their care of EM. Except where there has been third-party involvement with the family and independent corroboration, the parties agree on little - but they do agree on the fact that EM is a challenging child even though they differ on the causes of that behaviour and how best to act in the child’s best interests. The mother favours a multi-disciplinary approach: the father contends that family counselling should be sufficient.

[5] Prompting the mother’s motion is her claim that the father has wrongly withheld EM from her since February 10, 2020 contrary to Orders of the court. These Orders were allegedly based on agreements reached by the parties at court conference events. Minutes were signed and endorsements made but no formal Orders were, in fact, issued. In particular, the mother relies on an endorsement made by Bennett J. on July 12, 2019 at a case conference. The parties had earlier appeared before MacPherson J. on June 28, 2019 for a conference event at which the father appeared without counsel and without having filed any material. An adjournment was granted to permit him to retain counsel and to file materials. The matter was marked peremptory.

[6] When the conference proceeded on July 12, 2019 the father appeared without counsel. The mother’s counsel at the time had prepared, and the parties signed, partial and final Minutes of Settlement. After their review with the parties by Bennett J., the Minutes were amended and those amended Minutes also signed by the parties. They represented a comprehensive resolution of most of the parties’ parenting and financial affairs. In his endorsement, Bennett J. adverted to the fact that not all the terms of the Minutes were appropriate for an Order: one term (paragraph 18) dealt with releases; another (paragraph 21) referenced the parties signing a Separation Agreement settling their property and estate affairs.

[7] Relevant to the mother’s current motion are paragraphs 1-10 of the Minutes dealing with EM. The title to those provisions is “Custody and Parenting Time” (paragraphs 1-7) and Access and Reconciliation Therapy (paragraphs 8-10) and they contain the following terms:

1. A final Order that the Applicant/Mother, and the Respondent/Father shall have joint custody of the child [EM], born October 2, 2009, (hereinafter referred to as “the child”).
2. A final Order that the child shall primarily reside with the Applicant/Mother at 15 Pottery Place, Unit 18, Woodbridge, Ontario, L4L 9J6 or otherwise in accordance with an agreed access schedule.
3. A final Order permitting the Applicant and Respondent to travel with the child outside the province of Ontario, within Canada and abroad for 30 days upon executing a notarized travel consent providing the travel and accommodation details. The Respondent and Applicant agree not to unreasonably withhold his/her consent for the other to travel with the child.
4. A final Order prohibiting the Respondent and Applicant from traveling with the child outside of Canada without obtaining the written and notarized travel consent from the other party.
5. A temporary Order Commencing July 12, 2019, for thirty (30) days, the Applicant shall have parenting time with the child at least three (3) days per week, after thirty (30) days, the Applicant and Respondent shall have equal parenting time as alternating weeks, ‘one week on and one week off’, or otherwise as agreed between the parties in writing.
6. A final Order that the Respondent shall provide his irrevocable consent to communication and contact with the Applicant for the purposes of parenting the child and further agrees to attend the office of the Applicant’s probation officer to execute any further documentation required to give effect to his consent.
7. A final Order that the Applicant and Respondent shall not harass, or contact the other party, except for the purposes of parenting-related issues concerning the child, including for pick-ups, drop-offs, or other issues concerning the child, and settling family law matters.
8. A temporary Order that the Applicant, Rasa Gostautaite, the Respondent, Alfredo Gonzalez Menendez, and the child, [EM] born October 2, 2009 shall participate in support reunification/reconciliation therapy and that they shall promptly attend all appointments and cause the child to attend the appointments and follow the directions of such reconciliation therapist and participate in good faith in such reconciliation therapy, until further Order of this Honourable Court.
9. A temporary Order that the cost of such reconciliation therapy be equally shared by the parties, including 50% of any retainer required to commence reconciliation therapy, until further Order of this Honourable Court.
10. A final Order that the Applicant and Respondent shall follow any recommendations made by the Children’s Aid Society concerning the child including but not limited to: parenting, counselling/reunification therapy, access, joint custody/living arrangements, or any other recommendations in the best interests of the child.

[8] The balance of the Minutes dealt with exclusive possession, support (child and spousal), property division, and enforcement. It is clear from the foregoing that the parties reached a final resolution on the issues of custody (joint) and EM’s primary residency with her mother. Equally clear is that the parties agreed to pursue reconciliation therapy although that is expressed as a temporary Order. The parties also agreed to follow recommendations of the Society dealing with EM’s parenting and therapy.

[9] Paragraph 29 of the Minutes dealt with unresolved financial issues:

29. The parties further agree to continue settlement discussions concerning the balance of the following outstanding issues: a. Retroactive child support; b. Retroactive and prospective spousal support; c. Retroactive occupational rent; d. Promissory note for $19,960.00 dated March 30, 2008.

[10] The last two paragraphs of the Minutes dealt with next steps in the case:

Parties to attend settlement conference scheduled for October 15, 2019 at 11:30 AM.

Parties may file additional temporary/final minutes of settlement (Orders on consent) for any of the outstanding issues by way of filing 14B Motion with this Honourable Court.

[11] In his endorsement, Bennett J. suggested to the parties that a formal Order not be taken out just then because the Minutes contemplated steps being taken by the parties afterwards that could obviate certain paragraphs of the Minutes being incorporated into a final Order. Those steps did not involve parenting.

Should the A [referring to the mother] feel that an Order is necessary, her counsel may prepare a draft order, forwarding it to the R [the father] for approval as to form and content and then submission to this court’s attention for consideration.

Since a number of the clauses relate to the A’s home (15 Pottery Place) which the R agrees to vacate on/before July 27/19 the A’s counsel may wish to delay the preparation of the draft order until after July 27/19 as many clauses may not thereafter be necessary.

Should the parties require a S/C that may be arranged on a mutually agreeable date through the T/C.

[12] While the evidence is somewhat unclear as to the timing (although mid-August is indicated), difficulties arose not long after the Minutes were signed when the father began to disregard the “week about” residency arrangement to which the parties had agreed. He was withholding EM from her mother. The mother reached out to the Society for assistance. She expressed concern that the father was involving EM in the court proceedings. The Society recommended that the parties pursue mediation through a local child and family mediation facility (York Hills). The mother’s concerns appeared to worsen into September 2019. She proposed mediation: on September 24, 2020 the father advised that he was not interested. Around this time the exchanges involving the child were taking place daily: the parties lived in close proximity, walking distance from each other.

[13] After the July conference, the mother’s former counsel drafted Orders for approval based on the parties’ Minutes but the lawyer (Mr. McClean), who had since been retained by the father, declined to approve them as they were said to be “ambiguous and do not reflect what is really going on with our clients”. In his response to this motion, the father claims that the Minutes were:

(a) Confusing, contradictory and ambiguous; (b) Unbalanced and unreasonable; (c) Signed without the benefit of independent legal advice: the father said that he had never waived the right to legal representation; (d) His signature was not witnessed; and (e) The father felt pressured to sign them - they did not reflect his true wishes or the dynamics between EM and her parents.

[14] A Settlement Conference proceeded before Bennett J. on October 15, 2019. Little could be settled. Relevant to this motion are the following parts of the endorsement made then:

The court conferenced this matter.

The issues discussed were

1. The parenting time with 10 year old [EM].
2. Allegations of each parent against the other [with respect to] parenting.
3. CAS involvement.
4. The issue of the cohabitation agreement and promissory note and the need for questioning.

The court opined on these issues and provided the parties and counsel with some recommendations and allowed them time to discuss.

The parties were only able to agree on the questioning and on the release of CAS records.

The court is disappointed that given that both parties believe the current arrangement of switching the child back and forth daily is not in the child’s best interest that the parties could not agree even on a w/o prejudice basis to change the frequency of exchanges. This is particularly disturbing since the level of conflict between the parties is clearly detrimental to the child whom each professes to love.

[Order to go] as follows:

1. Leave for questioning in accordance with consent filed.
2. Each party shall sign whatever authorizations are required by CAS to release their file. Parties shall seek authorizations and records (such as paternal [grandmother]) to release of any medical records for CAS.
3. The court is requesting that CAS in addition to providing its records, also, if CAS deems appropriate provide a letter to this court commenting on any issues they may have or lack of concern they may have with the paternal [grandmother] caring for the child particularly on mornings when the [respondent father] is at work. Also any comments from the CAS with issue of frequent exchanges to the parties, any issues with school absences and any issues with appropriate meals/lunches being provided to the child.
4. Although not ordered the court encourages the parties to review the child’s schedule once response from CAS received.
5. Matter adjourned to January 24/20 at 11:30 for continued S/C.
6. Parties to serve and file S/C briefs [Offers to Settle] at least 7 days prior..

[15] The following day, on October 16, 2019, the mother alleges that she was assaulted by the father at an exchange location for the child. He was charged. The evidence is that he took EM with him to the police station the next day, although that was a day when the child should have been in her mother’s care. She was not. Nor did the child attend school.

[16] The father says that EM had a meltdown after being assaulted by her mother at the exchange location. There is no evidence of that. What did happen is that after the father was charged efforts were made to arrange for the exchange location at the school. The early cordiality of contacts between the mother’s boyfriend (who had become involved due to the mother’s stress) and Mr. McClean soon broke down. For several weeks afterwards the mother returned to waiting for the child at the former bus-stop location. The child never appeared. She was not attending school. The school became concerned: the police were contacted by the school to investigate. A Missing-Person (Youth) report was later filed by the police, the relevant provisions of which are the following:

Police attended [address redacted] where EM resides with her father, a Mr Alfredo GONZALEZ MENENDEZ, in an attempt to locate the female and check on her wellbeing. Police made several attempts at knocking on the doors and windows of the residence however were unsuccessful in making any contact. The residence was in darkness and there were no vehicles in the drive-way.

Police have been called in the past (19-358682) for [EM] habitually missing school. EM was later located in the residence with her grandmother (unknown name), watching television. Police placed several phone calls to Alfredo and left numerous voicemails in hopes to reach Alfredo and learn of [EM]’s whereabouts.

Police attended 15-18 Pottery Pl, Vaughan and spoke with [EM]’s mother, a Mrs Rasa GOSTAUTAITE. Rasa told Police that she has not seen EM since Saturday the 16 th of November which is when the she and Alfredo exchange [EM] as per their custody arrangements. Rasa told police on several occasions she has needed to call 911 as [EM] was missing school and no one was able to locate her.

Police called local Hospitals to determine if [EM] may have been admitted as a patient or if any one associated to her might have been. Police received negative results in that endeavour.

Police attended [the child’s school] to speak with the complainant, a Mrs Anna Guistizia. Anna told police that on Monday the 18 th of November Alfredo attended the school at approximately 1430hrs and took [EM] out for the remainder of the day. On the 19 th Alfredo called to let the school know that [EM] would not be attending on the 20 th , however [EM] was not present at school for either the 19 th or the 20 th .

Police returned to the residence and once again were unsuccessful in making contact with any parties who reside there. Police spoke with homeowners within the immediate area and none could advise whether they had notice [EM] today.

At approximately 1700hrs Police called Alfredo and were successful on getting a hold of him. Alfredo told Police that he just arrived at home and that [EM] had been there all day.

[17] The father said that EM refused to go to school or to leave his residence for seventeen days. On one occasion he drove her to school but she refused to leave his car. He did not disclose when this happened.

[18] There continued to be problems with EM being made available for her residency with her mother such that the mother brought an emergency motion on December 3, 2019. That came before Bennett J. who recused himself on the motion since he was the case management judge and had held a settlement conference. A mostly procedural endorsement was made, the relevant parts of which are the following:

The court is not satisfied that this meets the test of hearing the motion (100’s of pages of materials) on 1 day’s notice. R. 2 of the [Family Law Rules] requires the court to deal with a case “justly”.

Therefore, OTG as follows:

1. The CAS is requested to provide the court with a letter setting out what concerns if any they have regarding the child, including any concerns with [the mother] or [the father] or [the mother’s] boyfriend specifically.
2. Questioning that was scheduled for Dec 6/19 to proceed (some time ago).
3. Motion adjourned to a date to be confirmed by counsel and the T/C [i.e. Trial Coordinator] which date shall not be earlier than Dec 11/19 (not to be heard by this court).
4. Motion shall not proceed until the court receives some evidence (letter or affidavit) from CAS setting out their position.
5. School board/school is invited to provide a letter/affidavit setting out any concerns they may have which they believe would be of assistance to the court in determining [EM]’s best interests.
6. Counsel (both) to communicate with CAS/school/school board providing a copy of this endorsement.
7. Counsel to cooperate with approving draft orders.

[19] Bennett J. then proceeded to conference the issues which resulted in the parties consenting to an Order that Ms. Radley contact the child’s school, the Society and the police to obtain their records. The mother was also directed to contact York Hills to have the child assessed for counselling.

[20] On January 24, 2020 the parties re-attended court for a continued settlement conference with Bennett J. The following endorsement was made:

Matter conferenced including meeting with counsel. Parties came to a consensus and the court stated the agreement on the record that both agree.

[Mother]’s counsel to prepare written consent, parties to sign and [Mother]’s counsel to submit by 14B to this court’s attention which will include CAS letters.

Matter adjourned to [conference] call to counsel and the court. Feb 10/20 at 1:45 in chambers.

[21] Ms. Radley drafted a Consent Order and sent it to Mr. McClean. It was not returned. Nor was there any reason given why the draft was unacceptable. The draft Order read as follows:

The parties agree to the following terms, which shall be incorporated into a Temporary Court Order, on Consent:

1. The Applicant, Rasa Gostautaite (“the Applicant”) and the Respondent, Alfredo Gonzalez Menendez (“the Respondent”) shall jointly retain Diana Polak to provide therapeutic services for [EM], born October 2, 2009 [“the child”]. Diana Polak will determine how frequently [EM] should attend for sessions. The Applicant and the Respondent will alternate turns taking [EM] to therapeutic sessions with Diana Polak, and the party that takes her for a session shall pay the expenses for that session.
2. The parties shall forthwith attend mediation with the Children’s Aid Society and shall cooperate in arranging and attending the mediation sessions.
3. On a completely without prejudice basis, commending January 27, 2020, [EM] shall reside with the parties on the following 2-week alternating parenting schedule: a. Week 1: i. [EM] shall reside with the Applicant from Monday afterschool (or 10:00 a.m. in the event of a non-school day) until Wednesday drop-off at school (or 10:00 a.m. in the event of a non-school day); ii. [EM] shall reside with the Respondent from Wednesday afterschool (or 10:00 a.m. in the event of a non-school day) until Friday drop-off at school (or 10:00 a.m. in the event of a non-school day); and iii. [EM] shall reside with the Applicant from Friday afterschool (or 10:00 a.m. in the event of a non-school day) until Monday drop-off at school (or 10:00 a.m. in the event of a non-school day). b. Week 2: i. [EM] shall reside with the Applicant from Monday afterschool (or 10:00 a.m. in the event of a non-school day) until Wednesday drop-off at school (or 10:00 a.m. in the event of a non-school day); ii. [EM] shall reside with the Respondent from Wednesday afterschool (or 10:00 a.m. in the event of a non-school day) until Monday drop-off at school (or 10:00 a.m. in the event of a non-school day). c. Unless otherwise specific or agreed between the parties, all pick-ups and drop-offs shall occur at [EM]’s school or bus stop, [school name and address].
4. Each party shall make the daily decisions affecting [EM]’s welfare during their parenting time, and neither party shall interfere with the other party’s parenting time as it pertains to [EM].
5. [EM] may telephone call either party as often as she wishes.
6. Both parties shall ensure that their respective cellphones provided to [EM] while under their care shall not travel with [EM] during exchanges, and shall remain with that party.

[22] On February 10, 2020 there was a follow-up conference with Bennett J. and this endorsement made:

Conference call to update court.

[Mother]’s counsel awaiting MOS [i.e. Minutes of Settlement] back from [father]. [Father]’s counsel to follow up and it is anticipated signed MOS in immediate future.

Counselling has not yet begun. Both sides to follow up with chosen counsellor D. Polak.

Should issues arise parties (through counsel) may arrange future conference call.

Counsel may arrange further conference through T/C when ready.

[23] As of February 24, 2020, Mr. McClean had still not approved the draft Order. There continued to be instances where, even between February 10 and 24, 2020, the father was not delivering the child, or making her available, to the mother. Excepting April 2, 2020, the child has not spent time with her mother since February 24, 2020.

[24] The father says that the 2-2-3 schedule to which the parties agreed broke down almost immediately because the child’s relationship with her mother had begun to unravel: EM refused to go to, or stay at, her mother’s residence. The father did not elaborate on this unravelling except to emphasize that, in his view, the child’s relationship with her mother was “disastrous” and had been for several years. He did not explain why in July 2019, and again, as recently as late January/early February 2020, he had agreed to a parenting schedule that he knew, or reasonably must have suspected, he was unable to honour given what he described were years of a problematic relationship between the child and her mother. He had agreed in the July Minutes that EM’s primary residence be with her mother.

[25] When Mr. McClean had not approved, or even returned in amended form, the draft Order Ms. Radley had sent to him despite her letters to him on February 24, March 13 and 25, 2020, and there continued to be breaches of what the parties had just weeks earlier agreed in terms of the child’s time with her mother, Ms. Radley contacted the court on March 31, 2020 to schedule a further conference with Bennett J. (two weeks after the outbreak of the COVID-19 virus resulted in the Chief’s Notice restricting court matters to urgent issues). Mr. McClean objected to Ms. Radley’s contact, asserting that there was no urgency since counselling was proceeding (even though the child was still not seeing her mother at that point). There is no evidence that counselling had even started.

[26] On April 2, 2020 the father permitted the child to see her mother. He afterwards alleged that the mother had assaulted the child before she was to return to his residence. Unaware (as was the mother) that an investigation of assault was underway, Ms. Radley sought leave for an urgent motion to deal with parenting time and enforcement of the January 24, 2020 parenting schedule agreed by the parties.

[27] On April 21, 2020 I granted the mother’s request for an urgent conference to be held by Bennett J. Highlighted in that Ruling was the following observation:

Unreasonable failure to support a child’s relationship with the other parent is a failure of parenting. (bolding in the original)

[28] Bennett J. conferenced the parties’ dispute on April 29, May 6 and 21, 2020 without success. It was during the April 29 teleconference that the mother and Ms. Radley learned that there was an outstanding allegation that the mother had assaulted EM that was under investigation. Bennett J. directed the parties to contact the police and the Society about the status of the investigation. Ms. Radley’s offices requested a status update from the investigating officer. Mr. McClean wrote the following to the officer:

I appreciate the incident on April 2, 2020 is still under investigation, however, the child, [EM], has been very clear as to what happened on the day in question, our client’s mother (paternal grandmother) was present, our client has pictures, there are obvious injuries and biological mother has a history of violence and abuse against her daughter.

Why hasn’t more been done in this matter?

[29] In his endorsement made on June 1, 2020 referring this matter to a motion, Bennett J. made the following observations:

3. To say that this is a high conflict case is an understatement.

4. On [May 21, 2020], a third recent conference was held remotely. That conference lasted in excess of two and a half hours during which the court not only conferenced but caucused with each side and caucused with counsel alone. The court made very specific recommendations with respect to how to move this matter forward.

5. The court has spent in total probably in excess of one day during the last three conferences. This time does not include the extensive time that the court has spent with the parties and counsel and previous counsel trying to assist them in resolving this high conflict matter.

6. The court has spent the time that it has out of a serious concern for the child involved in the middle of this dispute.

7. The centre of the issue which comes before the court is the child not having time with her mother since on or about April 2, 2020.

[30] On June 19, 2020 I teleconferenced with counsel to structure the mother’s motion: the material filed exceeded 500 pages and contained 69 exhibits. Argument proceeded on July 7, the court’s Ruling was reserved and, as already noted, a Preliminary Ruling was released later that day dealing with urgent issues.

Mother’s position

[31] The mother described EM as being easily influenced, particularly by her father. Disagreements between the child and her mother almost always involved EM’s refusal to do her schoolwork and her constant use of her computer and iPhone for hours. The mother said that the absence of routine and discipline in the father’s home empowered EM to do as she pleased. The child’s absence from school for extended periods of time was causing EM to fall further and further behind, a concern more recently heightened by the pandemic and remote education. According to the mother, and not challenged by the father, EM is at least one or more grades behind in most of her school subjects.

[32] The mother said that she regretted, and accepted full responsibility for, the assault for which she was charged in late 2018 and pled guilty. She completed a parenting course, participated in the PARS program and complied with the supervised access terms required by the Society. Emails in late December 2019 show the child expressing affection for her mother, missing her and messaging that her father was telling her that she didn’t need to see her mother, telling her that she “could pick”. [2] Perhaps demonstrating the child’s emotional turmoil, she messaged the mother on January 2, 2020 that she hated her father, they were always “argumenting” and that she felt bad “I never come when it’s your day”. [3]

[33] After the father was charged with assaulting the mother at the child’s access exchange location on October 16, 2016 and was prohibited from direct contact with the mother, her boyfriend tried for a period of time to facilitate the child’s exchanges with Mr. McClean. The process soon degenerated and quickly broke down when the partner threatened to report Mr. McClean to the Law Society after issues arose with the parents picking up the child from her school and Mr. McClean responding several times over a twenty-four-hour period with what can only be described as highly inappropriate, unprofessional language. [4]

Father’s position

[34] The father accused the mother of “spinning” her evidence by her selective choice of information, partial truths and disparagement of him. Her problem, according to him, is her refusal to acknowledge what he contends are the traumatic experiences that affected EM as a result of her mother’s abuse and inappropriate discipline. He listed four examples:

(a) In 2016 the father alleged that the mother slapped and scratched EM during an argument. The police were contacted. The Society was notified. There are no other details provided.

In reply, the mother said no such incident ever happened. In 2016 EM called 911 four times over a two-week period because she didn’t want to do her homework or she and her mother argued. The police attended and told the child not to call 911 again. There was no Society contact. In her May 2016 letter, Dr. Taub confirms the mother’s version of events in a private interview with EM. Dr. Taub reported EM feeling angry that her parents fought and didn’t get along;

(b) In October 2018 the mother was charged with assaulting EM. During a physical altercation between her parents, EM became involved and was pushed by her mother and hair pulled. This is an incident that the mother regretted and undertook steps to avoid its reoccurrence;

(c) The father alleged that in 2019 (date not disclosed but likely the same October 16 th incident for which he was charged with assault) the mother tugged and pulled EM’s arm and tried to “yank” her from him when the child disembarked from her school bus. As already noted, this took place the day after the parties’ settlement conference with Bennett J.

The mother denies any such incident. Neither can mention of any such event be found in Dr. Taub’s January 21, 2020 letter to Ms. Radley detailing six sessions in 2019 with EM and her parents: four with the father (February 27, March 18, April 23 and May 23, 2019) and two with the mother (October 7 and, significantly, October 21 or 23, 2019);

(d) The father alleged that the mother assaulted the child on April 2, 2020.

The mother denied any such event. The police investigated and declined to lay charges. The Society confirmed in a letter to the court that it was unable to verify any concern relating to violence/physical discipline with EM and her mother since December 2018 (after the assault incident that October).

[35] The father said that the child had a meltdown in November 2019. EM refused to go to school or to leave his house. She staged a “shut-in” because she didn’t want to see the mother and her boyfriend. In a January 9, 2020 police report the father is recorded as telling an officer that “[EM] on occasion argues with her mother and then does not want to see her,” but that he had “no other concerns”. [5]

[36] There was a further meltdown alleged in February 2020. This occurred during the weeks that the father was agreeing with the mother and confirming to the court a 2-2-3 residency schedule for EM.

[37] The father said that EM was in crisis due to “the fallout from the abuse she has endured at the hands of her mother, exposure to her mother’s boyfriend and the ill feelings [EM] has towards him [meaning the boyfriend] and [EM]’s meltdowns and recent shutdown”. [6] According to him, EM was uninterested in having any relationship with her mother who, he alleged, was in denial about her abuse and dysfunctional relationship with the child. The mother needed anger management and parenting counselling.

Third party involvement

[38] The following third-party evidence and events are relevant.

Police

[39] There has been considerable involvement of the police with the parties. The father’s assault charge against the mother has not been resolved due to the COVID-19 pandemic but it remains outstanding. As for the incident on April 2, 2020, the police report noted that there had been a verbal dispute between the child and her mother over a bag of toys. There was some pushing, the mother grabbing the child’s arm, slightly scratching it. The maternal grandmother walked EM to her father’s nearby residence. The father took pictures and an ambulance was called (there was no evidence as to who called for the ambulance but it is not an unreasonable inference that it was the father). Ms. Radley’s subsequent letter to the investigating officer after learning of the allegation, in compliance with the April 29 direction of Bennett J., was neutral in tone and professional in contrast to that written by Mr. McClean. His was, in my view, a transparent attempt to influence the investigation into the laying of charges.

[40] The police declined to press charges.

[41] In the months following this incident the father has maintained that whatever happened on April 2, 2020 is further evidence of the mother’s pattern of physical abuse of the child and inappropriate discipline.

The Society

[42] The Society became involved with the family when the mother was charged with assault in late 2018. Disclosure from the Society was ordered on October 15, 2019. Bennett J. also requested the Society’s input about any concern with the father’s care of EM when he was at work, frequency of exchanges, EM’s schooling and lunches being provided to the child. The Society’s input was requested on several occasions. Counsel were directed by Bennett J. at the conclusion of the April 29, 2020 teleconference to contact the Society and police to ascertain the status of the police investigation of the mothers’ alleged assault of the child. In a letter to parties’ counsel from counsel (Rous) for the Society dated May 1, 2020, Mr. Rous confirmed that the Society had received the police report dealing with the alleged April 2, 2020 incident in respect to which no separate investigation would be undertaken as the Society already had an open file. Mr. Rous advised,

The Society remains concerned about the effect the continuing dispute has on [EM]; however, we do not consider that any more intrusive action is required on our part as the matter is being case managed by Mr. Justice Bennett.

[43] At the conclusion of the conference held on May 6, 2020 Bennett J. directed the Society to provide the court with additional information.

33. As a result of those questions, the court is aware that Mr. Rous had indicated the following:

“the Society remains concerned about the effect the continuing dispute has on [EM] however we do not consider that any more intrusive action is required on our part as the matter is being case managed by Justice Bennett.”

38. Specifically, given the allegations with respect to April 2, 2020 and the apparent ongoing police investigation, and the allegation by the applicant mother that the respondent father is engaging in alienation tactics, the court has a very specific question for the Society.

39. Based on the information currently available to it, does the Society have any protection concerns if this court were to order an immediate reinstatement of time to be spent by the child with the applicant mother?

40. From the earlier response from Mr. Rous, it can be inferred that there are no such protection concerns, but out of an abundance of caution, this court wishes to clarify that issue.

[A number of directions are next given; only the following is relevant]

4. A copy of this Endorsement shall be forwarded to the Society and the Society shall advise the court (prior to May 15, 2020) if the Society has any protection concerns with respect to the child and secondarily based on the information currently available, does the Society have any protection concerns specifically with the child being required to spend time with the applicant mother. based on the allegations made relating to an incident on April 2, 2020?

[44] By email dated May 15, 2020, Society counsel (Couto) responded to Bennett J.’s direction.

I am writing in response to the questions in paragraphs 32 ( sic ) and 41 of Justice Bennett’s Endorsement dated May 7, 2020…

The Society’s response to Justice Bennett’s question at para. 39 is as follows:

Based on the information available to the Society at this time, the Society would not have any protection concerns if the court were to make an order for immediate reinstatement of time to be spent by the child with the applicant mother. To be clear, although the Society’s initial verification in December 2018 was related to [EM] being physically harmed by mother, since December 2018 the Society has not verified any concerns in relation to physical violence/physical discipline. [EM] has expressed to her worker that she and her mother frequently argue (verbally). [EM] has advised her worker that from her perspective the frequent arguments are partly why she is not comfortable having access with her mother. The Society would strongly recommend counselling between [EM] and her mother to repair their relationship, improve communication, and rebuild trust between [EM] and her mother.

The Society’s response to Justice Bennett’s questions at para 41(4) are as follows:

1. The Society’s current protection concerns are related to [EM]’s exposure to adult conflict. The Society is attempting to mitigate the risk of emotional harm by working voluntarily with the family. Furthermore, as mentioned in Mr. Rous’ letter, dated May 1, 2020, the Society does not consider that any more intrusive action is required given that the matter is being case managed by Mr. Justice Bennett.
2. The Society does not have any concerns about the child being required to spend time with her mother based on the allegations made in relation to the April 2, 2020 incident. (bolding added)

Dr. Taub

[45] As noted in the Preliminary Ruling, Dr. Taub is a child and adolescent psychiatrist who has been involved with EM since April 11, 2016. Initially, Dr. Taub opined the absence of any diagnosable psychiatric disorder but that changed in May 2018 when EM was diagnosed with ADHD, Predominantly Inattentive Presentation. Shortly afterwards a psycho-educational report completed by EM’s school board diagnosed a learning disability. An IEP was developed. Dr. Taub last saw EM on October 21 (or 23) 2019.

[46] In her motion the mother proposed that EM continue to be treated by Dr. Taub. In a January 21, 2020 letter to Ms. Radley, Dr. Taub responded to certain questions about EM, her diagnosis, prognosis and recommendations.

[EM] was diagnosed with Attention Deficit Hyperactivity Disorder, Predominately Inattentive Type in this office, in 2018, with the benefit of collateral information from the school. In May 2018, a psycho-educational report completed by her school board was presented to her parents with an additional diagnosis of a Learning Disability being made. In this report comments regarding difficulty with attention and impulsivity are noted.

Questions 6-8- Did you prescribe any medication to [EM]-[EM] has not been prescribed medication . [EM]’s parents have been involved in significant conflict between them throughout the time that [EM] has been seen here. Both parents need to agree to a trial of medication and encourage [EM]’s compliance with it, so that it is consistently and safely given. As of October 21 st 2019, I informed [EM]’s mother that I was not willing to treat [EM] for ADHD while the high conflict situation between her parents continue. It will not be possible to do trials safely and determine the effectiveness of the medication. [EM]’s parents would both need to attend an educational session about the medications available and agree to a trial. While [EM] is subject to the continuing conflict between her parents, it will be difficult to determine the effectiveness of a medication trial.

Question 9- Did you recommend any therapy or therapeutic treatment -Over the years I have made recommendations for family and parenting support. Parents have not agreed together to trials of medication for ADHD.

Question 10- Other comments -The overall level of parental conflict with which [EM] has lived could make attention and focusing difficulties evident for any child. My current determination is that [EM] does have Attention Deficit Hyperactivity Disorder, Predominately Inattentive Type. There is not one test that can determine the accuracy of this diagnosis. As children mature the symptoms of this neurodevelopmental disorder tends to improve. The above comments are meant for [EM]’s current situation as of October 2019. References to this report in the future should be made with consideration caution and reservation, as children change as they mature. (italics added)

[47] On May 28, 2020 Dr. Taub elaborated:

Children with untreated ADHD may attain lower levels of education, may have more impulsive behavior that in adolescence may lead to more substance use and more motor vehicle accidents, poorer social and romantic relationships and less successful work histories.

Textbooks are written about ADHD and its treatment; this cannot be summarized in a letter.

I would be willing to meet with both parents to discuss a trial course of treatment for [EM] if both parents were committed to ensuring [EM]’s compliance with treatment. I am concerned that [EM] might be against treatment if she has heard negative commentary about it and this may make her compliance difficult. It is possible that if there is a court order for compliance regarding her parents, [EM] herself might understand that she must comply. (bolding added)

[48] The father disputes Dr. Taub’s diagnosis contending that she “rushed her diagnosis too hastily and without appreciating the family’s dynamics and problems”. It is noteworthy that Dr. Taub recorded at least thirteen sessions with EM between April 2016 and October 2019 at which one parent or the other attended (six sessions in 2019). There is no evidence that after the May 2018 ADHD diagnosis was made the father disputed it in the sense of seeking a second opinion. He believes that the child only needs counselling and that it is the mother who needs anger management and parenting counselling. This is partly based on his discussions with EM.

When I asked [EM] whether she was willing to see Dr. Taub again [EM] got upset and asked why. [EM] said “ why do I have to, I told her everything ” (italics in the original). [7]

[49] If the court was inclined to order EM’s continued psychiatric treatment the father argued that it be undertaken by someone other than Dr. Taub who would bring “a fresh set of eyes” to the situation.

[50] In my Preliminary Ruling, I directed Dr. Taub’s continuing involvement and awarded the mother sole decision-making authority with respect to EM’s medical care, the reasons for which will be made clear later in these reasons.

Lisa Benrubi

[51] Unbeknownst to the mother, although Mr. McClean disputes this, the father arranged counselling for EM by a local service (Life in Harmony). When Ms. Radley wrote to Ms. Benrubi to ascertain how she became involved without the mother’s knowledge or consent and requested, among other things, a copy of her file, Mr. McClean objected in writing,

Ms. Benrubi is under NO OBLIGATION to respond to or provide the information you are requesting at this time (bolding in the original)

[52] Ms. Benrubi did respond anyway. In a May 7, 2020 email, Ms. Benrubi advised,

EM was referred to Life in Harmony Vaughan Counselling Centre on Feb 3, 2020 by her father Alfredo Gonzalez for individual counselling regarding adjusting to her parents shared parenting agreement. Alfredo signed consent for [EM] to attend, and informed that [EM]’s mother was aware and may be willing to attend with [EM], especially on the days/weeks she was visiting.

[53] Ms. Benrubi met with EM on February 19 and 24, 2020. FaceTime consultation as a result of COVID-19 on March 31 and April 13, 2020 was unproductive because EM was “very distracted and played on her computer and [TikTok] while talking to the therapist”. Ms. Benrubi concluded,

To date, [EM] has not been able to connect to, or make therapeutic progress with, this therapist for counselling. It is this therapist’s assessment that individual counselling at this time is likely premature, and perhaps a group setting would give [EM] a comfort level with peers who have experienced separation and divorce and are learning to adjust to their new family system. First, and more importantly, [EM]’s parents must attend their own counselling to address issues related to their marital breakdown and ongoing joint parenting commitment. There is too much active conflict between parents currently for [EM] to move forward, and it is hoped when the time comes, [EM] can attend counselling with each parent.

I will not be providing any further counselling for [EM] at this time. I suggest looking to a community agency that can provide the multiple services and support this family will need, including group work, parenting support, behavioural consultation and educational support…

I do not have [EM]’s mother’s email so could you kindly forward this email to her.

School

[54] As a result of EM’s diagnoses, an IEP was implemented. The mother alleges that in 2018-2019 the child was absent from school for forty days when residing with her father. He did not challenge this allegation. On several occasions the school had to notify the parents about the child’s absence. In a May 12, 2020 email, EM’s teacher (Turchio) advised the mother that,

[EM] has completed 1 out 4 math assignments, 1 out 5 novel study assignments, 0 out of 4 social studies assignments and 1 out of 3 religion assignments. I’m not sure what she has completed in regards to French, Italian or Music. What I have sent you today was just what she missed handing in last week.

[55] On May 19, 2020 Ms. Turchio advised that EM had not submitted her work assignments for the week of May 11-15, 2020 and outstanding work from previous weeks comprising:

(b) All five language assignments; (c) All three Religion assignments; (d) All four Math assignments; (e) All three Social Study assignments.

[56] While the actual overlap of uncompleted assignments with the previous weeks was unclear, what is clear is that throughout this time EM was solely residing with her father under his care and control.

[57] The Preliminary Ruling incorporated the parties’ agreement to ensure that EM completes her schoolwork and attends tutoring.

OCL

[58] The mother proposed, and the father objected to, the appointment of the OCL (although he requested such relief in his motion that I ruled was improperly brought). He contended that EM’s voice deserved to be heard and that this could be accomplished through therapy with a therapist other than Ms. Polak; namely, a Ms. Chisvin. The mother argued that there was no overlap with the reunification therapy being undertaken by Ms. Chisvin, the start of which was noted in the Preliminary Ruling as having been delayed over a month by the father without reasonable excuse.

[59] Since the release of the Preliminary Ruling the father has signed the third-party consents required by the therapist.

Law and analysis

[60] The mother argued that the parties were bound by, firstly, their July 12, 2019 Minutes of Settlement and that it was incumbent on the father to either comply with them or take steps to vary them, neither of which he did, instead resorting to self-help. She referred the court to Family Law Rule 1(8).

FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order. O. Reg. 322/13, s. 1.

[61] It is clear from the Rule and the authorities upon which the mother relies that the Rule is only engaged after an Order has been made. [8] As no Order has been made incorporating the terms of the Minutes, and there is no motion for summary judgment before the court, none of these authorities is of any assistance to the mother. Notably, Bennett J. invited the parties to submit a draft Order for the court’s consideration but no steps were taken either when the parties later appeared before him, or pursuant to Family Law Rule 25.

[62] What followed in the months afterwards were protracted efforts by the mother to implement the “week about” residency arrangements, ensure the child’s school attendance, and avoid EM’s involvement in these proceedings; few of which were successful for any meaningful period of time.

[63] A not dissimilar observation may be made with respect to the agreement between the parties reached at court on January 24, 2020 and, in my view, affirmed by Mr. McClean on February 10, 2020 as reflected in the court’s endorsement that day.

[64] In her motion, the mother asked the court to implement the parties’ agreements dealing with, principally and more recently (then), a 2-2-3 residency arrangement. That, clearly, wasn’t successful. This court has no confidence that this kind of arrangement will ever have any chance of success given the current situation if it persists. Equally problematic is the child’s dismal academic performance when residing with her father. It is not an unreasonable inference that the father’s inability to manage EM’s behaviour is related to her untreated ADHD and his unsupportable opposition to treatment by Dr. Taub. A change is needed.

[65] In my view, the record demonstrates the likelihood of alienation of the child by the father and a litigation strategy purposed to ensure that the child’s relationship with her mother is compromised. While a more robust evidentiary record about alienation would be desirable, the court can reach a preliminary conclusion to that effect at an interim stage of proceedings. In MacLeod v. Macleod, 2019 ONSC 2128, [9] Audet J. observed 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. (bolding added)

[66] In Bors v. Bors, 2019 ONSC 7029, [10] Van Melle J. approved of the following definition of parental alienation described by a Dr. Michael Stambrook in the Manitoba case of L.M.A.N. v. C.P.M., 2011 MBQB 49. [11]

[119] Counsel directed me to the Manitoba case of L.M.A.M. v. C.P.M. 2011 MBQB 46 . Dr. Michael Stambrook provided a very comprehensive, and in my view accurate, definition of parental alienation. Justice Thomson quoting from Dr. Stambrook’s testimony wrote at paragraph 98:

It is a descriptive term that refers to a process. It is not a diagnostic label. It doesn’t appear in any nomenclature about mental health disorders. It is a descriptive term that refers to a process where there is a systematic devaluation, minimization, discreditation of the role of, typically the other parent in a parental dyad. One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent’s role. It can involve children having their sense of history being “re-written” by a parent’s redefinition of history, reframing things, repetitively talking about things. It can involve sometimes very subtle and sometimes not so subtle suasion, coercion, direction, misrepresentation and so on.

It is an abusive practice. It is child abuse when it occurs. It's emotionally abusive. It cripples and stunts children's development because the reality they knew at one point is undermined by this process. It is dangerous for the development because in [an] ideal situation, children should feel free to love and interact with the adults who are important in their lives, unencumbered by twisted turns of relational loyalties that are, unfortunately misplaced in this situation.

So parental alienation is a process, an interactional process where systematically one parent's role in, for the children is eroded over the course of time. (bolding added)

[67] The court does not accept the father’s allegations that EM has what he describes is a “disastrous” relationship with her mother or that he has supported the child’s relationship with her mother. It is implicit in his evidence that he believes he is blameless for the child not seeing her mother and there is good reason to doubt that he has tried to foster a meaningful relationship between EM and her mother.

[68] In Reeves v. Reeves, 2001 CarswellOnt 277, [12] an alienation case, Mossip J. was confronted with a parent deflecting to the parties’ children responsibility for disregard of court Orders dealing with a mother’s access. The father’s evidence in this motion echoes (as will be soon noted) Mr. Reeves’ justifications for his conduct.

38. The father’s answer to all allegations with respect to non-compliance with the existing court orders in not facilitating the mother’s access, is that he is only doing what the children want. In fact, in Ms. Tomkinson’s affidavit sworn October 25, 2000, the father made it clear in paragraph 10 that “he cannot make the boys do anything they don’t want to do”. In that same paragraph Ms. Tomkinson wrote “I have concerns about the father ability to assume responsibility for his children”. It is in the father interests, according to his own view of the separation and his perceived victimization, that the children choose to live with him and reject their mother. Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent’s inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentists or doctors. It is the responsibility of good parents to ensure that children go to school, go to doctors, and go to dentists. Good parents manage their children’s health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place. (bolding added).

[69] Despite his claim that his concern for EM’s well-being has driven his approach to the parenting issues in this case the father has, in my view, been gaming the court process.

[70] Examples:

(a) Knowing (according to him) or believing that the mother had anger management issues and a history of inappropriate discipline of EM (which the court does not accept), the father agreed in July 2019 and again in January 2020 to a residency regime that he clearly had no intention of honouring: he purposely breached it right afterwards and, subsequently, did little to remedy; (b) The father’s allegations that the Minutes of Settlement signed at court on July 12, 2019 were confusing, contradictory, ambiguous, unbalanced and unreasonable are nonsense. Other than the father disagreeing with them, Mr. McClean was unable to point out any basis on which the Minutes could be impugned. They were reviewed with the parties in court by Bennett J. on at least two occasions and that fact clearly noted on the record; (c) The July 12, 2019 court date was marked peremptory. The father had been earlier granted an adjournment by MacPherson J. to retain counsel. He did not, choosing to represent himself; (d) The assertion that the Minutes cannot constitute a domestic contract because the father’s signature was not witnessed is a “Hail Mary” and wrong in law; [13] (e) There is no evidence, apart from the father’s bald assertion, about his feeling pressured or coerced into signing the Minutes. Again, the father agreed with them in court. There is no endorsement reflecting any concern of the court with the father’s presentation or ability to understand and appreciate what he was signing; (f) It is a reasonable (and logical) inference that Bennett J.’s expression of caution with the July 12, 2019 Minutes related to the prohibition of releases being incorporated into an Order of the court and the deferring of presenting a final Order for issuance until some of the property-related obligations were satisfied. These had nothing to do with the integrity of the Minutes or their clarity dealing with EM; (g) Within a week of the parties (through counsel) re-confirming to the court on February 10, 2020 that the parties had reached another agreement, one that the parties reviewed with Bennett J. in court, EM was not delivered to her mother and soon afterwards there was no in-person contact at all (excepting April 2, 2020). The father attributes this to EM’s unwillingness to see her mother. That was not her decision to make ; (h) While in her father’s care EM, a child with a learning disability and a specialized program of education, did not attend school for seventeen days . The school became concerned. The police became involved. Dr. Taub was not consulted. The child’s school absences in 2018/2019 when living with her father is appalling, the completion of her schoolwork in 2020 abysmal (as reflected in Ms. Turchio’s May 2020 emails). This on the father’s watch ; (i) On behalf of his client, Mr. McClean refused to approve the draft Orders based on the July 12, 2019 Minutes of Settlement (which may be understandable since he was not counsel of record although there is no evidence that was a reason given) and the January 24 2020 agreement reached by the parties at court and which the parties affirmed to Bennett J. (which is not acceptable). If the father disputed the provisions of the draft Order prepared by Ms. Radley, there is no evidence that Mr. McClean submitted a revised draft or took any steps to apprise the court that the endorsements made did not fairly reflect the agreement between the parties. Quite the contrary was represented to Bennett J.; (j) The father engaged Ms. Benrubi without the knowledge or consent of the mother and, in my view, misrepresented to Ms. Benrubi that the mother was aware, or at least approved, of her involvement. Mr. McClean’s emphatic assertion that Ms. Benrubi was under no obligation to share information with the mother about her involvement with EM is simply breathtaking, and wholly indefensible; (k) The father disputes, disingenuously in my view, Dr. Taub’s ADHD diagnosis. He opposes her further involvement with EM. He opposes the appointment of the OCL. He opposes police enforcement of any parenting Order and proposes to limit third-party involvement with the child to counselling, the start of which he also delayed without valid reason; (l) The mother alleged, and I agree, that the father says one thing to the court and acts, or permits EM to act, in a manner inconsistent with what he has agreed. It is noteworthy that instead of the father initiating action when issues arose with implementing parenting arrangements to which he had agreed, it was the mother, not him, who acted. He resorted to self-help and is, in my view, untrustworthy.

[71] Parental conflict impacting the child is the common theme running through the parties’ evidence and that of the Society, the police, Ms. Benrubi and Dr. Taub. Although the father alleges that this conflict (solely caused by the mother according to him) is a major factor in EM’s dismal academic performance, it is more likely that he is unable to manage her behaviour and, when it comes to the child’s relationship with her mother, has no verifiable interest in supporting that relationship. The current residency arrangement simply isn’t working and hasn’t been working for far too long. Doing the same thing over and over again any longer and expecting a different result isn’t in EM’s best interests. A change is needed. The best chance for reducing the potential for further conflict between the parties and to ensure that EM gets the help she needs is to order her residency with her mother.

Disposition

[72] The following is ordered:

(a) The mother is awarded temporary custody of EM who shall reside with her mother and under her sole care and control, effective July 18, 2020 (1 pm); (b) EM shall have physical access with her father at the discretion of her mother who is directed to co-operate with and be guided by recommendations of the Society and Ms. Chisvin; (c) The father shall be entitled to Skype or other video-related access with EM three times a week after normal school hours. This shall be supervised by the mother; (d) The father shall not email EM or contact her through any other means, directly or indirectly, except as provided in this Order, nor shall he encourage EM to contact him; (e) Paragraphs 14(a) and (b) of the Preliminary Ruling dated July 7, 2020 are varied to provide that the mother shall ensure EM’s daily completion of her homework and that EM participates in her daily one-on-one learning sessions and, if no longer available after the school year ends, then the sessions shall continue with EM’s tutor twice a week with expenses to be equally shared by the parties; (f) The parties shall participate in reunification therapy with Ms. Chisvin and shall comply with her office procedures, requirements and recommendations. Without binding Ms. Chisvin, she is encouraged to briefly report to counsel for the parties about the status of the family’s therapy on a monthly basis, the cost of which shall be equally shared by the parties; (g) EM shall be reassessed by Dr. Taub (provided Dr. Taub is willing to do so) with respect to her diagnosis of Attention Hyperactivity Deficit Disorder at Dr. Taub’s earliest availability. Both parties shall be guided by and shall comply with Dr. Taub’s treatment recommendations; (h) Until further Order, the mother shall have sole decision-making authority for EM’s healthcare. This is a continuation of the Preliminary Ruling dated July 7, 2020; (i) Until further Order the mother shall have sole decision-making authority with respect to EM’s schooling; (j) Counsel shall advise the court through the Judicial Assistant (Meghan.Billings@ontario.ca) once a decision has been made by the OCL whether to accept its appointment; (k) The Society is requested to closely monitor the family; (l) Neither party shall share with EM the contents of this Ruling or discuss this case with her, except to inform her that until further Order of the court she will be residing with her mother under her care and control and will be expected to complete her assigned schoolwork; (m) Any police force having jurisdiction shall have the authority to locate EM and place her in the mother’s custody; (n) This matter is adjourned to a date to be scheduled by court administration during the week of August 24, 2020 for a teleconference with counsel with me to discuss the scheduling of a next event in this matter; (o) Ms. Radley shall forward a copy of this Ruling to the OCL, the Society, Dr. Taub and Ms. Chisvin forthwith; (p) Ms. Radley shall prepare a draft Order and forward that to Mr. McClean for its immediate approval. If the Order is not approved by July 27, 2020 Ms. Radley shall forward that to the Judicial Assistant for my consideration.

[73] A number of observations and cautions are warranted.

[74] The first is that EM may demonstrate oppositional behaviour when unable to get her way. She has demonstrated this behaviour when pressed by her mother to complete her schoolwork (this seems to be a continuing refrain), although it may also result from limits being imposed by the mother on the child’s social media time, and other house rules. EM should be made to understand that she will not be returning to any kind of a residency arrangement with her father until such time there is a demonstrable improvement in her emotional stability and schooling and as may be recommended by Dr. Taub and Ms. Chisvin. Where she will live is not the child’s choice .

[75] In L.R. v. The Children’s Aid Society et al, 2020 ONSC 4341 [14] Horkins J. upheld a trial decision in an alienation case in which the child was placed in the interim care of the Society before being placed in the care of his father, subject to Society supervision. The parents had been in an on and off relationship for many years: their relationship was volatile. Both parents had alleged domestic violence and both had been charged criminally at different times. The child had not seen his father for almost two years. The mother said that she was unable to force the child to have contact. She alleged that the child had been sexually abused by the father, an allegation rejected by the trial judge. The child had been alienated from the father. The child’s expressed views were given no weight because they were not independent.

[76] Although L.R. involved a fifteen-day trial, the court’s description of the parents’ conflict and its emotional impact on, and risk to, the child resonate with the evidence in this case. If EM’s transition from the father’s care to the mother is not facilitated by him or should the mother be unable to manage EM’s behaviour, the Society should consider temporarily placing EM in foster care.

[77] The second observation is that I place little weight on the father’s allegations that EM has a poor relationship with her mother’s boyfriend. In her submissions, Ms. Radley stated that the mother would be very cautious with, and sensitive to, any concerns or other issues that might arise in that regard. The mother will be held to that representation.

[78] The third is that the Society and police should be wary of complaints made by the child, or by the father, with respect to the mother’s parenting. In my view, the father has exaggerated the reasons for the child’s reluctance to be with her mother and the child has demonstrated a history of defiance when not allowed to get her way (as demonstrated by contacting 911 after arguing about homework). While appearing to duplicate the first point above, this caution is intended to emphasize that there is a history of Society and police involvement which should be considered before any action is taken: this is not intended to dissuade or relieve either from their lawful obligations.

[79] Since the parties reside within a short walking distance of each other, the mother may wish to consider some form of weekday or evening (not overnight) physical contact between EM and her father but I leave that to the mother’s discretion and any guidance in that regard from the Society, Dr. Taub and Ms. Chisvin.

[80] If the parties are unable to resolve the costs of the mother’s motion by July 27, 2020 the following is ordered:

(a) The mother shall deliver her submissions by August 7, 2020; (b) The father shall deliver his submissions by August 17, 2020; (c) Reply (if any) from the mother by August 21, 2020; (d) Submissions shall be single page, double-spaced and, in the case of (a) and (b) above, limited to four pages: reply is limited to two pages. They shall form part of the Continuing Record; (e) Counsel are to advise the Judicial Assistant (Meghan.Billings@ontario.ca) when they have filed their submissions; (f) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the deadlines above but not form part of the Continuing Record.

Justice David A. Jarvis

Date: July 17, 2020

Footnotes

[1] A police report attached to the father’s June 22, 2020 affidavit (Exhibit A) indicated that the parties were residing in the same house but separated and that the parties’ living arrangements had been the subject of many arguments. The mother details evidence suggestive that the father often lived separately from EM and her.

[2] Exhibit DD to the mother’s June 8, 2020 affidavit.

[3] Ibid , Exhibit EE. See also the text exchanges between EM and her mother between December 17, 2019 and January 31, 2020 found at Exhibit H to the mother’s June 25, 2020 affidavit.

[4] Ibid , Exhibit H.

[5] Exhibit G to the father’s June 22, 2020 affidavit.

[6] Ibid , para. 53.

[7] Para. 68 of the father’s June 22, 2020 affidavit.

[8] Skuce v. Skuce, 2020 ONSC 1881; Antora v. Alam, 2020 ONCJ 220; Jeyarajah v. Jeyamathan, 2020 ONSC 2636; Tigert v. Smith, 2020 ONSC 2220. It is unclear in Antora whether there was a pre-existing Order: if there wasn’t, I disagree that an agreement between parties or an accepted Offer has the same effect as a court endorsement and is captured by FLR 1(8).

[9] 2019 ONSC 2128, at para. 33 .

[10] 2019 ONSC 7029, at para. 119 .

[11] 2011 MBQB 49.

[12] 2001 CarswellOnt 277, at para. 38 .

[13] Virc v. Blair, 2014 ONCA 394; Gallacher v. Friesen, 2014 ONCA 399.

[14] 2020 ONSC 4341.