Superior Court of Justice - Ontario

COURT FILE NO.: FC-15-FO00053-0001

DATE: September 16, 2020

RE: Adam Burns, Applicant

AND:

Jennifer Kendall, Respondent

COUNSEL: Adam Burns, Self-Represented Angela Marchese, Counsel for Jennifer Kendall (on a limited scope retainer)

BEFORE: Mr. Justice M. James

HEARD: July 3 and August 25, 2020

REASONS FOR DECISION

[1] This is a motion brought by the Applicant (“Mr. Burns”) for a temporary order granting him sole custody and primary parenting responsibility for two of his children, Benjamin, age 14 and Brianna, age 8 on the grounds that the respondent, (“Ms. Kendall”) has engaged in parental alienation behaviour and interfered with his access and parenting time.

[2] The motion was originally returnable on July 3, 2020 and was continued on August 25, 2020. Both hearings were conducted by teleconference. I directed that the parties could conduct reciprocal cross-examinations when the matter returned to court on August 25th and that the two child protection workers involved with this family and who had previously filed affidavits be available for cross-examination on that date as well.

[3] The parties were married in 2005. They separated in 2015. They have three children—Brooke, age 16 and Benjamin and Brianna. At present Brooke has little or no contact with Mr. Burns.

[4] Mr. Burns is 40 years old. Ms. Kendall is about the same age. Mr. Burns has a 2 year old son, Jacob, with his current partner, Kathy Burchart. Ms. Kendall married Chad Kendall, a retired member of the Canadian Forces, in 2017.

[5] The parties have been in litigation for most of the five years since they separated. Family and Children’s Services of Renfrew County (“FCS”) has had dealings with these parties on about 20 occasions since 2015. As a result of the various proceedings, there is a substantial evidentiary record available to the court. While this motion is framed as a request for a temporary order, the volume of documentation is substantially greater than is usually the case for such motions.

[6] A final Order in 2016 provided for joint custody, primary parenting to Ms. Kendall and frequent access to Mr. Burns. This order also provided for telephone/Skype communication with the non-resident parent every other day, parental cooperation respecting counselling, no video or audio recordings of children making statements about the other household and no intrusive questioning of the children.

[7] Mr. Burns brought a Motion to Change in February, 2018 seeking custody and primary parenting responsibility. At that time, he was living with his parents in Haley Station, west of Renfrew, Ontario, where the family lived prior to separation.

[8] Mr. and Ms. Kendall were residing (and continue to reside) in Chalk River, Ontario with the children. Haley Station and Chalk River are about 78 kilometers apart along Highway 17.

[9] Mr. Burns alleged that Ms. Kendall was attempting to alienate the children from him and that she had been largely successful in relation to their oldest child, Brooke. He was experiencing difficulties in exercising the access that had been granted to him in 2016.

[10] Ms. Kendall said that Brooke was refusing to go for access visits and that the other children were reporting anxiety about spending time with their father.

[11] An order requesting the involvement of the Office of the Children’s Lawyer was made in March, 2018.

[12] A temporary order in December, 2018 provided for family counselling as well as reunification counselling for Mr. Burns and Brooke.

[13] The same temporary order contemplated a transition to week about parenting in January 2018 for Benjamin and Brianna on a without prejudice basis.

[14] The OCL report was completed in mid 2019 and recommended that Brooke live with her mother and that the other two children continue on a week-about schedule.

[15] A partial final order was agreed to in August, 2019 at a settlement conference. It finalized a joint custody/week-about arrangement but was subject to unresolved items that were to go to trial. Trial scheduling endorsement forms were ordered to be exchanged within 30 days. Mr. Burns served the form with his portion completed on Ms. Kendall on September 11th, 2019. Ms. Kendall did not complete the required form. On October 9, 2019 the parties were ordered to attend on December 10, 2019 to show cause why the form had not been completed. In the meantime, the matter could not be set down for the fall 2019 trial sittings because a fully-completed form had not been filed and approved by a judge.

[16] The required form was completed and signed on December 10, 2019. By that time Mr. Burns had filed a motion for temporary sole custody and restricted access for Ms. Kendall. For some reason, he did not see fit to serve the motion which simply delayed the matter.

[17] On December 18, 2019 he withdrew the motion and filed a new motion for contempt returnable January 28, 2020. By the end of December, 2019 Ms. Kendall gave notice she was now self-represented. The motion was adjourned because FCS indicated that it intended to file affidavit evidence due to concerns that the parental conflict was harming the children.

[18] The contempt of court motion was heard on March 9, 2020. By that time two affidavits had been filed by child protection workers with FCS who had been involved with the parties and their children since June, 2019. These affidavits provided considerable detail respecting events that had taken place during the preceding several months.

[19] Fraser J. dismissed the request for a finding that Ms. Kendall was in contempt of a court order, stating that she was not satisfied beyond a reasonable doubt that Ms. Kendall was deliberating and willfully breaching the terms of the August, 2019 order respecting parenting times. Fraser J. also noted that a Motion to Change would need to be issued to address Mr. Burns’s request to change the custody and parenting arrangements agreed to by the parties the previous August.

[20] In response to Ms. Kendall’s assertion she had encouraged the children’s contact with Mr. Burns, Fraser J. stated that she had “serious concerns that the respondent does not recognize or acknowledge the importance of the children’s relationship with their father” and that Fraser J. did “not accept that the respondent has been promoting the relationship between Benjamin and Brianna with their father to the extent she is capable.”

[21] In the meantime, a trial management conference to address the unresolved issues from the previous August was scheduled for March 18, 2020.

[22] By way of endorsement made on March 12, 2020 Fraser J. cancelled the trial management conference because the case wouldn’t be reached during the May, 2020 sittings. The remaining issues were identified as equalization, custody of Brooke and school for Benjamin.

[23] Due to the COVID-19 restrictions Mr. Burns sought leave to issue his Motion to Change which was granted on May 27, 2020. He issued the Motion to Change on June 9, 2020 and served it by email on June 22, 2020. In the Motion to Change Mr. Burns is seeking sole custody and limited access for Ms. Kendall. The present motion before the court is to be treated as a temporary motion within the framework of the June, 2020 Motion to Change.

[24] The FCS involvement was summarized in the affidavit of Maryanne Bergeron, the child protection worker assigned to this family. The summary for the period prior to June, 2019 was compiled from the FCS files. The areas of concern to FCS were the children’s exposure to adult conflict, physical discipline of the children and caregiver causing emotional harm. In 2015 FCS worker Luke Bailey looked into the following allegations against Mr. Burns:

a. Excessive force/inappropriate discipline in relation to Brooke and Benjamin including dragging Brooke by her arms into her bedroom, picking her up by the scruff of the neck and dragging her outside by the arms. These allegations were denied by Mr. Burns but were determined to be credible.

b. Killing the family cat in front of Benjamin when he was 5 or 6 years old as a means of discipline. This was admitted by Mr. Burns;

c. Hog-tying Benjamin in a field and leaving him there despite being frightened and crying in 2014 which was admitted;

[25] Mr. Bailey also verified allegations against both parents that they argued about custody in front of the children, discussed adult issues in their presence including Mr. Burns reading court documents to the children and Ms. Kendall coaching the children what to say on the phone with a crisis worker.

[26] In January, 2017 FCS investigated an allegation that Ms. Kendall had scratched, kicked and hit Brooke and had twisted her wrist in a fight which resulted in the temporary placement of Brooke in the home of her maternal grandparents.

[27] In March, 2019 FCS received a report from Ms. Kendall that Mr. Burns had spanked Brianna, threatened Brooke at a bus stop and had denied counselling services for Benjamin. The spanking allegation was verified.

[28] In June, 2019 Ms. Bergeron investigated several allegations that resulted in Ms. Bergeron interviewing Benjamin who said his father was consistently untruthful and sometimes accused Benjamin of being untruthful as well. Both Brianna and Benjamin reported seeing physical conflict between Ms. Burchart and Mr. Burns. Benjamin reported that he only wanted to live with his mother.

[29] In August, 2019 Benjamin reported that his paternal grandfather had physically harmed him and his father had failed to protect him. Benjamin later admitted to Ms. Bergeron in a private meeting that this allegation was false. This meeting led to the following disclosures by Benjamin —he had made the false allegation in the hope that it might end the ongoing conflict between his parents, he felt stressed by the parental conflict and wished his parents would stop fighting, that his choice of residence would be week about and that the comment he had previously made about only wanting to live with his mother was untrue.

[30] On October 4, 2019 Mr. Burns attended the children’s school for the weekly exchange. Benjamin called the OPP to say that he and his sister did not want to attend access with their father. The OPP report indicated that upon arrival, Cst. Ray found Benjamin crying and visibly upset. He said he and his sister were scared to go to their dad’s. When asked why they were scared, Benjamin said that they “just were”. He said that his father had recently said to him during a phone conversation to “grow a set of balls or your sister will just kill herself” and that their father had spanked Brianna. When Brianna was asked why she didn’t want to go to her father’s, she said she was worried he would not put Polysporin on her ear. When asked if she would go if her father said he would put Polysporin on her ear, she said no. When asked if she would speak with her father, she said no. Cst. Ray described Mr. Burns as understanding but upset. Mr. Burns is noted as having said that this was not the first time the children had refused to go with him and he believed the children were being brain-washed by their mother. Reference was made to the lack of a police-enforcement clause in the custody and access order. The officer permitted the children to leave with their mother who showed up at the school a short time later.

[31] On October 18, 2019, the next exchange day for the children to spend the week with their father, Benjamin called the OPP again. The occurrence report prepared by Cst. Brela noted that Benjamin was unwilling or unable to provide any details specific to his safety. Benjamin was in the school and Brianna was in her father’s vehicle. Brianna did not appear to be in distress or have fears for her safety. Ms. Kendall arrived with her husband Chad. Before long Messrs. Burns and Kendal were yelling at each other and Brianna was crying. Mr. Kendall did not comply with the police instruction to get in his vehicle and at one point the officer drew his taser as Mr. Kendall returned to renew the confrontation. A short time later the Kendalls left the school yard and the children left with Mr. Burns.

[32] The school officials forbade further exchanges on school premises and the exchanges were switched to the Family Visitation and Exchange Centre (“Visitation Centre”) operated by FCS.

[33] On the November 15 exchange date, the children would not enter the exchange centre while Mr. Burns waited inside.

[34] In a letter dated December 6, 2019 prepared by Ms. Bergeron at the request of Mr. Burns for court purposes, Ms. Bergeron addressed the following points:

a. The parents have not yet demonstrated effective co-parenting strategies. She was concerned the high level of post-separation conflict may adversely affect the emotional and mental well-being of the children;

b. The children lack a neutral support network. Counselling resources were not being utilized effectively; and

c. Parental alienation by Ms. Kendall. Her concern was that if matters continued on their present trajectory, the children may stop seeing their father completely.

[35] On December 11, 2019 the FCS file was transferred to Kathy Thomas. Ms. Thomas continues to be the assigned FCS worker under what I understand to be a voluntary services agreement. As in the case of Ms. Bergeron, Ms. Thomas prepared an affidavit sworn March 3, 2020 for the court’s assistance at the contempt of court motion which was argued on March 9, 2020. This affidavit summarized FCS involvement from when Ms. Thomas took over the file the previous December.

[36] In Ms. Thomas’s initial transfer meeting with Ms. Kendall, Ms. Kendall advised Ms. Thomas that she was worried about what the children had experienced and witnessed in the past and they were frightened, that Benjamin was worried about his access visits with his father and Ms. Kendall told him if he was concerned, he could call the OPP, that she was concerned about the parental alienation allegations against her but re-iterated that the children did not want to see their father and she wasn’t going to force them to do so. Ms. Kendall repeated the allegations of past abusive conduct by Mr. Burns.

[37] On December 16, 2019 Ms. Thomas received a letter from Ms. Kendall’s then counsel, Fan MacKenzie. This letter is helpful in setting out Ms. Kendall’s position on the situation then at hand:

a. Ms. Kendall was transporting the children to the Visitation Centre and giving the children the option of entering or not;

b. Ms. Kendall was proposing dropping the children off at the Visitation Centre then leaving so the children would be forced to enter the building;

c. A supervised visit with Mr. Burns might work as an “ice-breaker” followed by alternate weekend visits then transitioning to week-about;

d. The Phoenix Center, a local counselling facility, was refusing service due to the high level of conflict and court involvement and Ms. Kendall suggested returning to the North Renfrew Family Services and Ms. Hawley who had previously provided counselling services; and

e. Ms. Kendall wanted the week-about arrangement to work but was unable to resolve this alone and was looking to FCS for assistance.

[38] In Ms. Thomas’s initial meeting with Mr. Burns, he said that he had not seen Brooke since July, 2018, that the OCL had interviewed everyone separately, that he didn’t understand why Benjamin didn’t want to see him and when he asked Benjamin about this, his response was simply that “he didn’t feel like it” and that Mr. Burns was not prepared to try shorter visits such as lunch at McDonald’s because he was not prepared to vary what the court order provided.

[39] Both Ms. Bergeron and Ms. Thomas met with Benjamin and Brianna at their school following the meetings with their parents. Their meetings with the children, conducted separately, are instructive. As soon as Benjamin saw Ms. Bergeron in the reception area, he excused himself to go to the washroom. When he returned, Ms. Bergeron asked Benjamin if he had called his mother from the washroom and he avoided answering. Benjamin referred to the spanking incident with his sister Brianna. He said his father was not trustworthy and now that he was 14 his mother had provided him with information from the internet that he could make his own decisions. He seemed very well-informed about the court process. Benjamin brought up the allegation about how his father had hog-tied him in a field. He had trouble recalling his age at the time. Ms. Thomas commented in her affidavit that “my question seemingly got him off-script and he struggled recalling independent details”.

[40] The FCS workers then met with Brianna. As soon as she saw them she stated she used to live on a farm and her dad used to make wolf sounds, that her dad had slapped her once on her buttocks and her mom had taken a picture of the red mark, that she didn’t want to see her dad, that she liked the toys at the Visitation Centre and that her dad used to call her Monkey Bear.

[41] On December 18, 2019 Ms. Thomas received a call from the executive director of the Visitation Centre indicating that they were going to close their file because Ms. Kendall informed her that the children didn’t want go there any more and that Ms. Kendall was unwilling to bring them.

[42] Ms. Thomas met with Mr. Burns, Ms. Burchart and their son Jacob on January 2, 2020 at their home. Mr. Burns expressed frustration at not seeing his children during the Christmas period and said he had tried to call several times and contact Ms. Kendall through the My Family Wizard communication tool unsuccessfully.

[43] The next day Ms. Thomas met with Ms. Kendall, Brooke, Benjamin and Brianna and had private meetings with each of them. When Ms. Thomas walked into the room to meet with Brianna, her first words were, “I don’t like Adam”. Ms. Thomas told her that she had met the day before with her younger brother Jacob and Brianna asked if she had any pictures. She said she would like to meet Jacob, so Ms. Thomas suggested a meeting at McDonalds. Brianna then asked, “Did I ever tell you about the wolf thing?” When asked if she had any nice memories of her father she said, “I forgot.”

[44] At the meeting with Brooke, Brooke also expressed an interest in meeting Jacob who she had not seen. She mentioned that she hadn’t seen her father for a long time. She recalled that they had argued about soccer and he wouldn’t compromise and told her to get out of his house. She hadn’t been back since. She also mentioned a time when Mr. Burns left her outside in the rain and that when she had told the OCL lawyer about this incident, she hadn’t listened.

[45] At the meeting with Benjamin, he said he didn’t want to see his dad over the Christmas holiday and that his dad hadn’t called. Ms. Thomas commented that Benjamin appeared withdrawn and not engaged in their discussion.

[46] At the meeting with Ms. Kendall, Ms. Thomas mentioned that the children were interested in meeting Jacob. Ms. Kendall said she was open to such a meeting but had concerns about the children meeting Ms. Burchart because she had reportedly struck Mr. Burns in the face in front of the children.

[47] On January 9, 2020 the principal of the children’s school advised Ms. Thomas that the school authorities had decided to permit the upcoming exchange on Friday January 10, 2020 to take place on school premises. The principal proposed that Mr. Burns pick up Brianna at 3:30 p.m. and the school officials would support the exchange process. The principal said she thought it was unlikely Benjamin would participate and that a successful exchange with Brianna would be a positive step.

[48] Ms. Thomas then received a call from Ms. Kendall who was angry about the change in plans. The next day Ms. Kendall sent an email to Ms. Thomas indicating that the children would not be at school because they had a bad night of worry and got no sleep, that they both had nightmares and Brianna wet the bed. When Ms. Thomas phoned Ms. Kendall in response to this email, Ms. Thomas deposes in her affidavit that Ms. Kendall said that Brooke and Benjamin told Brianna that they would stand outside the school and not let Brianna enter Mr. Burns’s vehicle. Ms. Thomas responded that she would be at the school the next day if Brianna wished to discuss any concerns with her and that Ms. Kendall was heightening the anxiety level by making the children feel unsafe in their father’s home by her words and actions.

[49] Brianna did not attend school on January 10, 2020 and the scheduled week-about exchange did not take place.

[50] Ms. Thomas met with Brianna at her school on January 14, 2020. Brianna initially said she had been home sick, that she did not want to see her dad and did not want Ms. Thomas to force her to see her dad. Brianna then said she had not been sick, but her mother made her stay home. She asked Ms. Thomas if she had told her that her dad had spanked her, referring to the prior allegations.

[51] On January 20, 2020, Ms. Thomas received a call from Ms. Kendall advising that the children would be attending access with their dad on January 24, 2020. She said this decision had been prompted by the pending contempt of court motion brought by Mr. Burns and the children did not want to go to their father’s home. Ms. Kendall denied telling Brianna to fake being ill in order to stay home.

[52] The exchange on January 24, 2020 went well.

[53] Ms. Thomas made an unannounced home visit at the Burns residence on January 25, 2020. She met privately with Benjamin who said he was fine and did not appear distressed or withdrawn. He said he was ok to remain with his father and his family. Ms. Thomas met privately with Brianna who seemed happy and was playing with toys. Ms. Thomas observed interactions in the living room. Benjamin held Jacob on his lap. The children seemed content and well-adjusted.

[54] On February 2, 2020 Ms. Thomas received an email from Ms. Kendall regarding the recent access visit. She said the children had shared some “disturbing issues” about the visit. Ms. Thomas responded by indicating that she had made a home visit and the access visit appeared to be going well.

[55] On February 5, 2020 Ms. Thomas met with Benjamin at school. He said Mr. Burns had questioned him about allegations of past events that Benjamin did not want to talk about. He was annoyed that he was refused access to his phone and said the visits would go better if he could call his mother. He said he enjoyed seeing his baby brother again and the sledding and snowmobile activities. He said he wasn’t sure if he wanted to go to access again. When asked why, he said he was bored and didn’t enjoy himself. Ms. Thomas said some of his comments were inconsistent.

[56] On February 7, 2020 Ms. Thomas spoke with Mr. Burns and advised that Benjamin would like to be able to contact his mother during access visits and not be questioned about past events and allegations. The exchange for Mr. Burns’ week on the same day apparently went well according to a call from Mr. Burns.

[57] On February 11, 2020 Ms. Thomas received a call from Ms. Kendall stating that she had not heard from Benjamin and would like a call. Ms. Thomas relayed this request to Benjamin and encouraged him to call if that is what he wanted to do.

[58] The exchange on February 21, 2020 for Mr. Burns’ week was tumultuous. Mr. Burns reported that Mr. Kendall had exited his vehicle and struck him in the presence of the children. Mr. Burns notified Ms. Thomas that he was on his way to the OPP to report the incident. Ms. Thomas suggested that Mr. Burns should make the calming of the children his first priority and contact the police later. At some point the same day Mr. Burns filed a police report and Mr. Kendall was subsequently charged with assault. The OPP report to FCS indicated that the assault was verified by video evidence.

[59] On February 24, 2020 Ms. Thomas received an email from Mr. Burns that included the following information:

a. Ms. Kendall messaged him asking why the children were not in school and he responded that he was planning on getting them help to process the incident that took place the previous Friday. He contacted the Phoenix Center to speak with a counsellor and had been in contact with a therapist;

b. Benjamin was fearful of being interrogated by his mother and step-father;

c. Brooke had called to speak with her siblings, and;

d. The OPP made an unannounced visit at his home because they had received a report from Ms. Kendall that she was concerned for the children’s safety.

[60] On February 25, 2020, Ms. Thomas met privately with Benjamin and Brianna at the Burns residence. Benjamin said Mr. Kendall had became argumentative with his father at the exchange and he felt frightened. He said he would like to stay for another week at his father’s home. He was concerned about the questioning he would face from his mother. Brianna said she wanted to call her mother which Ms. Thomas arranged. Brianna cried on the phone and said she missed her mom.

[61] Afterwards Ms. Thomas spoke with Mr. Burns. He said Brianna had been upset and emotional since the exchange fiasco and that Benjamin had lost his cell phone. He said when they used the Find My iPhone feature, it was in Deep River on Lemure Road.

[62] In a telephone discussion with Ms. Kendall on February 27, 2020, Ms. Kendall reported that Mr. Burns had lied about the phone because she found it in Pembroke. Ms. Thomas’s affidavit does not provide an explanation as to how Ms. Kendall found the phone. Ms. Kendall said the children did not like to spend time at their father’s home, that the lies needed to stop, and that people needed to pay attention to the children’s suffering.

[63] On February 28, 2020 Ms. Thomas had a telephone discussion with Ms. Kendall about the exchange incident. Ms. Kendall recounted her version of events including that Brianna was crying hysterically because she didn’t want to go for the access visit, that Ms. Kendall was concerned that no one was listening to the children; that she would continue to urge the children to continue the week-about exchanges; that the children were being emotionally harmed by the conflict; and that Mr. Burns had entrapped them at the exchange and set things up to ensure that something would happen.

[64] On February 28, 2020 the principal of Benjamin’s school sent an email to Ms. Thomas indicating that Benjamin had asked to use a school phone to call the police about his dad. He was not given access to a phone.

[65] In another affidavit sworn on June 29, 2020, Ms. Thomas provided an update for the period from the end of February to June.

[66] Ms. Thomas’ updated affidavit disclosed that the exchange scheduled for March 6, 2020 did not take place. The information provided by Mr. Burns was that Brianna was crying and said she did not want to go with her dad. Benjamin walked over to his vehicle and said he didn’t want to go either. Two police officers attended and allowed the children to remain with their mother. The note from the police indicates that the children were very clear in stating their preferences.

[67] On March 9, 2020 the contempt of court motion was heard in court. Mr. Burns contacted FCS to express a concern that Ms. Kendall was going to bring the children to court. FCS counsel who was present for the hearing observed the children sitting with Ms. Kendall reviewing documents outside the courtroom. When asked why the children were not in school, Ms. Kendall said she had sent them to school but her friend picked them up from school and brought them to the courthouse without advising Ms. Kendall. The issue was raised by the presiding judge and Ms. Kendall responded that the children were already on their way back to school. Later, Mr. Burns advised FCS counsel that during a court recess, he saw Mr. Kendall in a convenience store parking lot near the courthouse with the children in the vehicle. This issue was raised by Fraser J. again after the lunch recess and Ms. Kendall confirmed that the allegation was true and explained that Mr. Kendall had misunderstood her instructions.

[68] On March 11, 2020 Fraser J. released her Reasons for Decision in relation to Mr. Burns’s contempt of court motion.

[69] On March 13, 2020 Ms. Thomas met with Benjamin at school to discuss contradictions in his statements at various times. Ms. Thomas described the discussion as follows:

a. I questioned Benjamin about the discrepancies in his feelings towards access with his dad. For example, when I met with him privately on February 25, 2020, he told me that he was happy at his dad’s house and he did not want to go to his mom’s house because he was afraid of Chad Kendall. However, Benjamin later stated that he was afraid of his dad and did not want to return to visit him;

b. Benjamin said that he only told me he was happy at his dad’s because he was sure that Adam Burns was recording him. Benjamin said he did not trust his dad;

c. I suggested that I could be present when he visited with his dad next time or we could go to McDonalds or Tim Hortons. Benjamin agreed to this;

d. We also discussed the incident that occurred at the exchange location between Chad Kendall and his dad on February 21, 2020. Benjamin downplayed the event, was avoidant of the conversation and promptly changed the subject. He said at the last exchange his dad was asking him and Brianna, “Why don’t you love me, why do you hate me?” Benjamin said his dad told him Chad Kendall could go to jail and “This could have ended two (2) years ago”;

e. Ben said that his phone went missing at his dad’s house but had no explanation for where it went;

f. Benjamin said his dad threatened to “end this now” and “get revenge on mom”;

g. Benjamin said he did attended court on March 9, 2020 and that he wanted to speak with the judge but he was not allowed. Benjamin knew his mom returned to court on March 11, 2020 but wouldn’t tell him anything about what happened. I explained that the judge told his parents not to talk about court with him or his sisters anymore;

h. Per Justice Fraser’s instructions to the adults on March 11, 2020, I explained to Benjamin that his mom and dad signed an agreement in August, 2019 where they agreed that access on a week-about basis was in the children’s best interests. I said his mom wanted access to happen;

i. Benjamin said his dad questioned him during access visits and he did not like this. I suggested that we could make a list of rules to ensure certain things did not happen at visits. He provided me with the following list of rules for dad’s home:

i. No questioning

ii. No comments that made him scared; and

iii. Do not be mean

j. I asked for clarification on the last two (2) points. Ben shrugged his shoulders;

k. He did not respond when I said that the visits at his dad’s home had been going well. I talked about the times he had told me that he was enjoying himself such as sledding, throwing wood and earning money. He said, “I never got any money.”

[70] On the same day Ms. Thomas met with Brianna at school. Ms. Thomas described the discussion as follows:

[71] When I asked Brianna about how she liked going to see her dad, she immediately responded by saying that she told the police recently that she did not want to go to her dad’s. She said she told the police her dad “bum slapped” her, and he said she had stolen a gem and she got in trouble with the police about this.

[72] During this meeting, Brianna was distracted and unfocused. She was not clear and would divert to her llama stuffed animal she was holding.

[73] When I asked her different questions, she would automatically respond that she did not want to see her dad but she would see him soon.

[74] In cross-examination at the hearing, Ms. Thomas said Brianna’s statement that “she did not want to go to her dad’s” was out of context to the discussion.

[75] On March 17, 2020 the provincial government announced a state of emergency due to the COVID-19 pandemic. On March 18, 2020 Ms. Kendall sent an email to Ms. Thomas and Mr. Burns that the children were experiencing a cough and sore throat and should self-quarantine.

[76] The next day in a phone discussion, Ms. Kendall advised Ms. Thomas that the family doctor had recommended the self-isolation, that the health unit had given similar advice, that she was concerned that if the children went to Mr. Burns’ home, they could spread what they had to his son Jacob and she was in the process of obtaining a doctor’s note. Ms. Thomas also stated in her affidavit that Ms. Kendall was stressed about the upcoming access visit and she reported that Benjamin was worried about being “grilled” at his father’s. Ms. Kendall also advised that she was having difficulty getting the children to phone Mr. Burns.

[77] The next day Ms. Kendall sent an email re-iterating her decision not to allow the children to visit their father due to COVID concerns. She said in part, “I am not going against the court order I am just trying to be responsible and not spread anything to anyone as it is all over the media to take the right precautions. So the kids will stay home till this passes so no one else catches it and with little Jacob only being a year old it makes sense also, for him not to be exposed to this.”

[78] Over the next few weeks several phone calls and emails were exchanged regarding the suspension of access visits, COVID and the children not wanting to go on exchanges with their father.

[79] On April 13, 2020 Benjamin sent an email to his father, his mother and Ms. Thomas setting out the reasons why he and Brianna did not want to go for the upcoming access exchange on April 17th . He said in part, “We just want to stay with mom, Chad and Brooke. Maybe if dad sees how he hurts us and changes we can have time together again but we just want to be here with mom”.

[80] Ms. Thomas questioned whether the email was actually written by Benjamin and was unsure how he got her email address.

[81] Mr. Burns questioned the authorship of the email as well which prompted this response from Benjamin, “None of that was mom and I wasn’t pressured and I don’t want to go neither does Bri so what your thinking right now is wrong just like every other time. My mom didn’t do anything this was me and Bri so don’t try to say it was anyone else but me and Bri. Goodbye”.

[82] Ms. Thomas attended at the scheduled time and place for the April 17, 2020 exchange for Mr. Burns’s week with the children. An OPP officer was already present, having been called by Ms. Kendall. Ms. Thomas asked Ms. Kendall why she had called the police when Ms. Thomas had previously indicated an intention to be present and stated that the children were using weak and frivolous excuses not to see their dad. Benjamin reiterated that he did not want to go with his dad. Brooke was in the vehicle with the other children. Ms. Kendall and Mr. Burns started arguing. Benjamin would not face his father. Mr. Burns spoke briefly with Brianna. The exchange did not take place.

[83] There were no access visits in April.

[84] There was another round of private meetings between Ms. Thomas, Ms. Kendall and the children in early May. The children continued to be resistant to visits with their father. Ms. Kendall reiterated her complaints.

[85] Although there were attempted exchanges, the children did not actually have access with Mr. Burns in May.

[86] There was another unsuccessful exchange on June 1, 2020 followed by another round of private discussions with Ms. Kendall and the children on June 11, 2020. Benjamin told Ms. Thomas that if the court order was changed and they had to live with their father, “Brianna and I will run away or kill myself”. Ms. Thomas observed that Benjamin’s body language and tone of voice did not change. He did not show any emotion such as fear, anxiety or sadness, which she would have expected to see.

[87] The attempted exchange on June 12, 2020 was not successful. The police were present in response to a 911 call. Ms. Kendall later told Ms. Thomas that one of the children had inadvertently leaned on the phone and called the police by accident. Ms. Thomas reviewed with Ms. Kendall the reasons why it was healthy for the children to have a positive relationship with both parents. Ms. Thomas suggested a family meeting with their father. They did some safety planning. Ms. Kendall agreed that Benjamin’s threat to run away or kill himself was not genuine.

[88] There were no access visits in June.

[89] There were two unsuccessful access exchanges in July. On these occasions, Ms. Kendall arranged for her parents to provide the transportation to the exchange location to demonstrate that she was not the cause of the problems.

[90] An affidavit from Ms. Kendall’s mother, May Lavergne, described their efforts to persuade the children to go with Mr. Burns on the first exchange but the children would not get out of the car. For the second exchange, Mr. Burns was delayed in getting to the agreed location and gave notice that he would be late. Ms. Lavergne described the situation this way, “On the second exchange, the applicant requested on short notice a change in timing, however, this request was too late and the exchange was cancelled”.

[91] Ms. Thomas observed that she has been unable to draw out details from the children to support their concerns. She deposes that when she asks the children questions that tend to take them “off script”, they are unable to articulate clear reasons that would justify cancelling visits with their father.

[92] Ms. Thomas repeatedly advised Ms. Kendall that she does not have any safety concerns for the children in Mr. Burns’s home.

[93] Ms. Kendall has repeatedly advised Ms. Thomas that she supports the idea of the children spending time with their father and she tries to persuade them to go but they refuse to get out of the car at the exchange locations.

[94] Ms. Thomas says in her affidavit that FCS is concerned about the emotional toll on the children resulting from the parents’ behaviours, especially that of Ms. Kendall.

[95] In cross-examination Ms. Thomas said that she had questions about how to deal with the issues presented by this family so she contacted Howard Hurwitz, a Toronto-based consultant specializing in high conflict situations, to obtain his analysis and suggestions.

[96] Despite concerns, FCS does not consider itself to be in a position to commence child welfare proceedings.

Mr. Burns’ Position

[97] Mr. Burns contends that Ms. Kendall has conducted a campaign of manipulation of the children and misinformation to the court. He says that Ms. Kendall is responsible for his estrangement from his oldest daughter, Brooke, and that the resistance to spending time with him exhibited by Benjamin and Brianna does not reflect their true feelings.

Ms. Kendall’s Position

[98] Ms. Kendall says that she recognizes the importance of having two parents involved in child-raising; that is why she consented to a shared parenting arrangement in the past. She has attempted to persuade, even coerce the children to spend time with their father. She has threatened to take away their personal items as discipline; she has grounded them for not wanting to participate; she has pushed them to call their father daily and she has consistently encouraged counselling to address why the children are exhibiting such strong resistance to attend access visits whereas Mr. Burns has not supported counselling in the same way she has.

[99] She has witnessed how Brooke has grown apart from her father and Ms. Kendall does not want the same thing to happen with the younger children.

[100] In her view FCS has unfairly focused a good part of the blame for the situation on her.

[101] Also, Mr. Burns has not accepted responsibility for his role in the difficulties.

[102] Ms. Kendall says the children have expressed frustration to her that they are not being listened to and that their views are not being heard by many of the adults involved in the case, including Mr. Burns.

[103] In her view the children’s refusal to participate in week-about parenting is founded in their fears of past incidents and trauma inflicted by their father.

Assessment of the Evidence and the Issues

[104] My starting point is to observe that the issues presented here are to be determined in accordance with the best interests of the children (see section 16 of the Divorce Act and section 24 of the Children’s Law Reform Act).

[105] There is an existing order for week-about parenting that isn’t working. The conflict between Mr. Burns and Ms. Kendall has ebbed and flowed for years, with their children caught in the middle. Something needs to be done to alter the current trajectory of this situation, which in my view has a high probability of ending badly for the children. Benjamin and Brianna have undergone, and continue to experience an ordeal that is not of their making and that should not be visited upon any child.

[106] The real issues in this case are not whether the children are unsafe in Mr. Burns’ care (there is no evidence that they are) or whether Ms. Kendall is making a genuine effort to promote and encourage parenting time with Mr. Burns (she is not) or whether Ms. Kendall is engaging in strategies to put distance between the children and Mr. Burns (she is).

[107] The real issue in this case is whether the risk of emotional upset and stress that may impact the children as a result of a loosening of their mother’s grip is worth the attempt to restore a positive relationship with their father.

[108] The associated issues are firstly, if the parental equilibrium is to be restored, what is the best way to go about it? And secondly, does Mr. Burns has the necessary parenting skills and judgment to manage the transition?

[109] This case directly engages the question of whether Ms. Kendall’s evidence about her intentions and actions is credible and reliable. I have looked for objective measures and independent third-party confirmation or contradiction. Credibility determinations are difficult to make on what is primarily a written record but in this case the record is extensive and there have been limited cross-examinations to test the veracity of the competing allegations. On many points I find her evidence not to be credible or reliable. I will provide some examples:

a. Ms. Kendall stated at para. 15 of her July 2, 2020 affidavit that “we have refrained, at all costs, from speaking about the applicant negatively in our home. Ms. Thomas stated in her March 3, 2020 affidavit at para. 26(e) that she had observed Ms. Kendall having adult conversations with the children about their father that were inappropriate. At the January 3, 2020 visit with Ms. Thomas, Ms. Kendall was speaking negatively about Mr. Burns and when Brooke entered the room, Ms. Kendall continued on with her negative commentary;

b. When Brianna expressed a concern to Ms. Thomas about the possibility that she would have to live with foster parents, Brianna said to Ms. Thomas that her mother told her that she may go into foster care. When Ms. Thomas raised this with Ms. Kendall, she said Brianna had misunderstood her, that she had actually said the children would not have to go into foster care;

c. Ms. Kendall’s version of the taser incident with her husband and the police doesn’t make sense-- basically that during the verbal confrontation between Mr. Burns and Mr. Kendall in October, 2019, the police officer chose to point his taser at Mr. Kendall because he is bigger than Mr. Burns and posed the greater threat to police because of his size. In fact, here is nothing in the occurrence report that indicates that there was any reason for the police to deploy a taser in relation to Mr. Burns;

d. The day the children showed up at the courthouse, Ms. Kendall said that a friend had picked them up at school without her knowledge. In cross-examination Mr. Burns queried her as to how a non-family member could take the children out of school. Ms. Kendall then revised her answer to say one of the children hadn’t actually gone to school that day. When questioned about this issue by Justice Fraser the day of the court appearance, when Justice Fraser learned that the children were in the building, Ms. Kendall stated that the children were already on their way back to school. This was untrue. Ms. Kendall later acknowledged that the children had been sighted in a parking lot near the courthouse during the lunch recess and stated that her husband had misunderstood her instructions;

e. Ms. Kendall states that she knows the importance of a healthy relationship with both parents and she has done all she can to promote such a relationship. Why then, on Monday, February 24, 2020, while the children had been with Mr. Burns since the previous Friday, did Ms. Kendall call the OPP and ask them to do a safety check on the children? The police record says she reported that she was concerned they weren’t at school and that they were being held against their will. Mr. Burns apparently had messaged her that day to say why they weren’t at school but the police were called anyway. Noteworthy is the police officer’s comment that Brianna was playing with dolls and appeared very happy and that Benjamin was in good spirits and played a game of Connect 4 with the police officer;

f. In January, 2020 Benjamin sent a text to his father saying he wanted to see him. This was inconsistent with his previous statements. When Ms. Thomas asked Ms. Kendall what had changed, Ms. Kendall said she was at risk of being found in contempt of court if the children did not see their father. In context, the common sense inference that arises from this evidence is that Benjamin contacted his father at his mother’s prompting. This is symptomatic of manipulation of the children by Ms. Kendall;

g. Ms. Kendall acknowledged that she has advised Benjamin to call the police if he is worried about access visits. This is inconsistent with Ms. Kendall’s other statements that she supports shared parenting and her suggestion to call the police is far removed from encouraging and reassuring the children;

[110] At the initial hearing of this motion on July 3, 2020 I raised with the parties the possibility of obtaining a Voice of the Children report. Upon further consideration, it appeared to me to be quite likely that the children would continue to state a preference to live exclusively with their mother. I question, however, whether that would be a true expression of their real feelings. There is consistent and reliable evidence that the children do not appear to be in any form of distress when living with their father. Their expressed opposition to spending time with him is at odds with reports that they appear happy in his home. I accept the evidence that Benjamin indicated to Ms. Thomas that he would like to stay at his dad’s for an additional week. When at Ms. Kendall’s home, they refer to Mr. Burns as Adam. When at his home, they refer to Mr. Burns as dad. I am concerned by Ms. Thomas’s comment that their complaints come across as scripted and that when pressed, they are unable to provide details to explain their concerns. Also noteworthy is her observation that the children’s emotional state does not match their words. Brianna mentions her spanking by Mr. Burns frequently, as if she is trained to refer to the incident, then moves easily to a new topic.

[111] The weight of the evidence satisfies me that Ms. Kendall is intentionally deploying strategies to put distance between the children and Mr. Burns. Her actions do not match her words. I conclude that her goal is to reduce the children’s contact with Mr. Burns, not to encourage and promote such contact. In short, she is engaging in parental alienation behaviour.

[112] Children who become alienated from a parent tend to persistently express unreasonable negative feelings and beliefs toward a parent that are disproportionate to their actual experience with that parent. That would appear to be the case here.

[113] When parental alienation is present, following a child’s stated views may not be in the child’s long-term interests. In this case, there is a disconnect between the children’s expressed resistance to spending time with their father and the consistent reports that when they are together, the children appear to be content and at ease.

[114] The consequences of alienation are well known. It is emotionally harmful to children and can cause long term negative effects into adulthood. Decisive judicial intervention at an early stage is becoming more common. The court in Ma.M. v. A.W.M., 2019 ONSC 2128 at para. 33 recently held that:

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 at para. 2, the urgency raised by parental alienation necessitates early and decisive intervention by the court.

[115] Further on in the Hazelton case the court said at para. 75:

However, as noted at the outset of these reasons, there is one thing 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.

[116] In Stakenvicius v. Coates, 2020 ONSC 3966, MacKinnon J. determined that a temporary reversal of parenting arrangements was warranted in similar circumstances.

[117] Before such a step becomes a viable possibility in this case, however, I must consider whether Mr. Burns has the capabilities and adequate judgment to manage the challenges that a reversal of parenting may entail. Among the concerns I would identify the following as noteworthy:

a. Mr. Burns makes recordings of the children to secure evidence. A prohibition against doing so was specifically ordered previously yet he persists;

b. I question his steadfast refusal to consider shortened or abbreviated visits to assist in easing the children back into a comfort zone;

c. I am concerned that he allows discussion to stray into adult topics in the presence of the children;

d. Comments made by Brooke are suggestive of an inflexible and hard-nosed parenting style that would be inappropriate and out of place in these circumstances; and

e. There is historical evidence of child abuse by Mr. Burns and a lack of insight into his role in the dysfunction that is clearly present in this family. On this point, I note that section 16(9) of the Divorce Act directs that 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. Recently, to his credit despite occasional slip-ups, Mr. Burns has shown restraint in managing the difficulties associated with the exchanges, and,

f. He recently moved from Pembroke to his parents’ home in Haley Station without disclosing that he had done so, increasing the distance from Ms. Kendall’s home in Chalk River and changing the family dynamics of his household.

[118] On the credibility point, in contrast to Ms. Kendall, I have found Mr. Burns’s evidence to be generally credible and reliable when assessed for improbabilities and when weighed against known facts.

[119] In considering available options, I note that there have been numerous attempts at counselling in the past that have either been aborted or unsuccessful. Counselling alone is not likely to result in a satisfactory outcome.

Disposition

[120] There will be a temporary order granting Mr. Burns sole custody of Benjamin and Brianna and the children will reside with him pending a further order of the court.

[121] Ms. Kendall shall deliver the children to Mr. Burns at the parking lot adjacent to the FCS office 77 Mary Street, Pembroke at 12 noon tomorrow, September 17, 2020. Mr. Kendall is not permitted to attend with Ms. Kendall at the exchange location.

[122] Both parents shall respect COVID-19 safety protocols throughout the exchange. FCS is requested to have a case worker, preferably Ms. Thomas if possible, available to assist with the exchange.

[123] Ms. Kendall shall allow the children to bring a reasonable quantity of their personal effects with them according to their preference.

[124] For the purpose of locating and apprehending the children if necessary, a member of the OPP or the police force having jurisdiction in any area where there are reasonable grounds to believe the children are located, may enter and search any place where he or she has reasonable and probable grounds to believe that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be made any time. This police enforcement clause shall be in effect for 6 months from today’s date.

[125] Mr. Burns shall ensure COVID-19 safety protocols are observed in his home.

[126] Subject to the ability of FCS to bring a motion to me, on notice to the parties, if it wishes to dispute the provisions, an FCS case worker, preferably Ms. Thomas if possible, shall monitor and check-in on the well-being of the children while they are in the care of Mr. Burns at such intervals as they deem appropriate. The check-ins may be by telephone, video link or in person depending on the stage of re-opening at the time.

[127] Mr. Burns shall not discuss the court proceedings with the children or speak negatively about Mr. or Ms. Kendall in the presence of the children.

[128] For the first two weeks after the exchange, there shall be no contact between the children and Ms. Kendall except in accordance with the terms of this order. Both parents shall advise the children of the contact provisions of this order without comment except to say that it is the judge’s order that must be complied by the whole family.

[129] Five days after the exchange the children shall have a telephone call with Ms. Kendall at a specific time arranged between Mr. Burns and Ms. Kendall’s counsel, Ms. Marchese. The call shall be no longer than 10 minutes and is for the purpose of re-assuring the children of Ms. Kendall’s well-being. There shall be no discussion of the court case or the terms of this order and if the children ask questions, they shall be re-directed by Ms. Kendall.

[130] Additional telephone calls shall occur at 5 days intervals thereafter. The same rules shall apply to these calls.

[131] Additional telephone calls may take place if recommended by FCS.

[132] Ms. Kendall shall not attempt to contact or communicate with the children except as permitted by this order.

[133] On the second Sunday following the exchange, and on a biweekly basis thereafter, Ms. Kendall shall have a one-hour access visit with the children at the Visitation Centre in Pembroke, COVID-19 restrictions permitting.

[134] Mr. Burns shall not re-locate the children to a different residence without court approval. If he has not already done so, Mr. Burns shall deliver an updated Form 35.1 custody and access affidavit that reflects his current living arrangements.

[135] If he has not already done so, Mr. Burns shall enroll in and complete a parenting course that includes a component regarding the parenting of teenage children and provide proof of successful completion of same by the next court appearance.

[136] Mr. Burns will consult with FCS for the purpose of determining what counselling services would be beneficial to the children or either of them and will facilitate such counselling if it is deemed to be advisable.

[137] There shall be no audio or video recording of the children.

[138] This matter shall be returned to the court on a date to be fixed by the trial coordinator in approximately 8 weeks to check-in on the transition and for an update on the children.

[139] FCS shall be able to request a date for a case conference directly from the court if so advised and to deliver a case conference brief and attend as a non-party on any issues raised by this order.

Justice M. James