NEWMARKET COURT FILE NO.: FC-17-55195-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MB Applicant
– and –
DB Respondent
Self-Represented
Self-Represented
HEARD: November 18-December 5, 2019
REASONS FOR JUDGMENT
JAIN J.
Introduction
1This was a fourteen-day trial regarding the parenting issues of custody and access; and the financial issues of retroactive and ongoing child support & Section 7 expenses, and post-separation adjustments. The parties were married for 15 years and have three children together. At the time of the trial the children were aged 16, 13 and 10. The parties separated on November 20, 2017, over two years prior to the trial. The applicant is the wife/mother and the respondent is the husband/father. Although both parties had lawyers through most of the litigation, they were unrepresented at the time of the trial.
2From the time of separation, these parties had an elevated level of conflict. The parties have appeared in family court numerous times and before various judges since the application was commenced in November 2017. Community agencies have been heavily involved with this family since the separation, including: the York Region Children’s Aid Society (“the Society”); York Regional Police (“Police”) and multiple mental health professionals. The parties consented to a jointly appointed assessor under s. 30 of the Children’s Law Reform Act (the “CLRA”).1 The verified concerns of the Society and the assessor include the children’s exposure to post-separation conflict between the parties and parental alienation.
3To protect the privacy of the parties their names have been initialized and they will be referred to as applicant/wife/mother and respondent/husband/father. To protect the privacy of the children, the eldest child shall be referred to as “NB,” the middle child shall be referred to as “AB” and the youngest child shall be referred to as “IB”. Finally, in an effort to protect the privacy of the entire family, the names of the children’s schools have been removed or changed.
4This family’s current situation is an emotional tragedy. The children have been stuck in the middle of the parents highly conflicted separation for over two years. The children have been residing with their father since mid-December 2017 when the mother was charged and removed from the home. Their last brief visit with their mother took place over a year ago in August 2018.
5Both parents agree that the children have been estranged from their mother; however, they do not agree on how or why this happened. They further do not agree on what would be in the best interests of the children going forward. The major issue that took up the majority of the trial time was with respect to determining whether or not the respondent had “alienated” the children against the applicant, and what parenting arrangement was in the best interests of the children.
6The applicant seeks a finding that the respondent has severely “alienated” the children against her. She takes the position that it is solely because of the behaviour and actions of the respondent that the children have become alienated. She seeks an order granting her sole custody and primary residence of the children with no access to the respondent for a period of three months. She also requests an order that permits her and the children to participate in an intense reintegration therapy program with Family Bridges (“FB”).
7The respondent opposes a finding that he has alienated the children. He takes the position that the estrangement is the applicant’s sole responsibility due to her behaviour and actions. In other words, the respondent seeks a finding of “reasonable estrangement” with respect to the applicant and children. He seeks an order granting him sole custody of the children with regular access between the children and the applicant, (so long as the access is in accordance with the children’s wishes). He further seeks an order that both parties and the children participate in reunification/reintegration therapy (either an out-patient or an intense reintegration therapy program with Families Moving Forward (“FMF”) or some other treatment program). He does not agree or consent to the FB program or any order that suspends or limits his contact with the children.
Issues
8The contested issues for the court to determine are:
(a) What is the finding of the court with respect to the issue of parental alienation or reasonable estrangement?
(b) What parenting arrangement is in the best interests of the children in light of the above finding of parental alienation or reasonable estrangement?
(c) What are the appropriate amounts for retroactive and ongoing child support and s. 7 extraordinary expenses in accordance with the Child Support Guidelines (“CSG”) and the Family Law Act (“FLA”)?2
(d) How should the balance of the proceeds of the sale of the matrimonial home be divided having regard for: post-separation adjustments; the costs of future therapeutic interventions; any retroactive child support and s. 7 expenses; and past unpaid cost orders?
Decision
9For the reasons set out below, the court finds there is sufficient evidence to support a finding of parental alienation. In order for the family to move forward in the best interests of the children, there will be a detailed parenting order specifically reversing custody for the two youngest children on a temporary basis and a further order to “step up” and graduate the parties and children into final shared/equal residence and parenting for the two youngest children. The eldest child shall have discretion to reside with whichever parent she chooses in accordance with her wishes and preferences. Her decision however, will have consequences on the type of contact she will be permitted to have with her younger sisters (on at least a temporary basis). The balance of the decision on the financial issues are set out in the order below.
Analysis
Custody and Access - Is there sufficient evidence for the court to make a finding of parental alienation or reasonable estrangement?
10Based on the evidence and submissions presented during the trial, the court finds that there is sufficient evidence to make a finding of parental alienation.
11Prior to the separation, this family has been described as very healthy and highly functioning. Words like “ideal,” “close” and “loving” were used by witnesses (including the parties) to describe the parent/child relationships and even the husband/wife relationship.3 However, in the year leading up to the separation and for the two years afterwards, this family has unfortunately descended into becoming a highly dysfunctional and conflicted separated family. The children and the parents have all suffered.
12It is clear to the court that the father has suffered significantly from the emotional pain and trauma of the mother’s extramarital affair and her subsequent choice to separate from him. His theory of the case shows very black and white thinking about the entire situation. He believes that the parties built a loving family based on “traditional family values.”4 He says the parties decided together that the mother would assume the role of a “stay at home mother” and that he would support the family financially. Unfortunately, “the best laid plans of mice and men often go awry” and things did not work out as planned. The father was not able to adequately support the family financially. The father sustained a serious injury and was unable to continue his work. He began receiving Workplace Safety & Insurance Board (“WSIB”) benefits and re-trained in construction management. He says he worked full time for short periods of time but could never maintain it because of the reaggravation of his injury. He is currently unemployed and is still in receipt of WSIB (which he says is now his only source of income). He described the parties as persevering through their difficulties with ‘compassion and kindness’ until approximately one year prior to the party’s separation.
13The father unflinchingly blamed the mother for the family dysfunction and all pre- and post-separation conflict. He says the mother is solely and completely responsible for the estrangement between her and the children. The father says that in the last year of the parties’ marriage (when the mother was working full-time managing a gym) their marriage and family began to fall apart due to her decisions and behaviour. Prior to this period, he said she was a wonderful mother and wife.
14In 2017, the mother admitted that she began having an extramarital affair with a work colleague (“DL”). At the request of the father, and in an effort to try and save the marriage, the mother quit her job and the parties attended marriage counselling with Ms. P. Gonzalez. According to the father, the parties also agreed to install an app on their cell phones called “Partner Tracker.” This was supposed to provide the father with a sense of security in his knowledge of the mother’s whereabouts.5 These efforts to save the marriage failed and the parties separated on November 20, 2017.
15In her Application the mother made allegations that the father had misused pain medications during their relationship and that the father has been abusive and controlling towards her and the children. During the trial, there was little to no evidence provided regarding the allegations of misuse of pain medication. After hearing all the evidence, the court finds that on a balance of probabilities the father was not misusing pain medication pre- or post-separation.
16Shortly after the parties’ separation (and after being served with the Application) the father began making allegations against the mother about her behaviour pre-separation. He alleged the mother burdened NB with knowledge of the affair and then the mother tried to turn NB against him. He alleged that she involved the youngest children (unbeknownst to them) in shopping for gifts and baking for the mother’s boyfriend. The court finds that these allegations were not significantly relevant to the ongoing custody/access issues, except that if true, they may explain some of the initial distrust between the eldest daughter and her mother at the time of the separation.
17The two most serious allegations that the father made about the mother were that prior to the separation, she was using/abusing performance enhancing drugs/steroids which affected her moods/judgment and parenting skills; and that she had been overmedicating their youngest daughter with Tylenol and Advil (causing the child to have stomach aches and abdominal pain).
18After hearing all the evidence, the court finds that on a balance of probabilities the mother was not using steroids pre- or post-separation and that her judgment and parenting decisions were not impaired by use of any drug. The father provided little to no evidence to prove any of these allegations. He relied on general speculation, rumors and internet Google searches. The father provided no medical and/or expert evidence that the mother was using or abusing steroids and/or that this effected her judgment and parenting skills.6 I gave little or no weight to all of the exhibits provided by the father during the trial that purported to prove the father’s theories on this issue. It is the court’s view that there is too much ‘junk science’ on the Internet and this appeared to make up much of the father’s evidence in support of his allegations. If this type of evidence is to be admissible under the Family Law Rules7, a court requires properly tendered evidence from a qualified expert as to what evidence is junk and what is good science.8 In addition, the majority of the father’s witnesses provided biased unhelpful opinions, speculation and unreliable hearsay testimony.9
19After hearing all the evidence, the court further finds that on a balance of probabilities, the mother did not overmedicate any of the children with Tylenol and Advil. Both parties gave evidence about how the youngest child IB has always been very sensitive and anxious. There are any number of physical and emotional reasons that could explain this poor child’s stomach aches and abdominal pain in the year leading up to the parties’ separation. The parties both confirmed that the mother was taking IB to doctors and specialists regarding IB’s stomach issues. The mother called witnesses to give evidence on this issue.10 Mr. Fremlin confirmed that in April 2017 he performed a “Live Blood Test” for IB.11 He said this test showed she had a “mild disbyosis”, which is imbalance in bacteria. It did not show a leaky gut. He recommended a protocol of changes to her diet and some mild probiotics to help with her digestive issues. When being cross-examined by the respondent, Mr. Fremlin confirmed that the tests he performed would have shown if there were chemicals (from Tylenol or Advil) in IB’s blood. He said that he didn’t see any of these chemicals in IB’s sample. He also said there were no signs of stomach ulcers or leaky gut in the blood test (which can be caused by Advil). Unfortunately, although different tests, diets and treatments were recommended and/or tried, none of them could provide concrete answers as to the cause of the child’s ailments.
20The father provided no medical evidence that the youngest child had ever been over-medicated with Advil and Tylenol prior to or after separation. The allegation itself did not come from his own observation. It stemmed from the observations of the eldest child NB (who was only 14 at the time and dealing with her own mental health issues and also dealing with the separation of her parents for which she was already becoming aligned with her father).12 The father said that NB told him and her psychiatrist Dr. Grigoreva that she witnessed the mother allegedly giving the youngest child too much of this medicine when the youngest child was not feeling well. The seriousness of this allegation meant that a report was made to the Society by Dr. Grigoreva. In an attempt to have the mother charged, the father unilaterally took the extra step of taking NB to the Police to make a report about this allegation. The court finds that the father’s actions were strategic to gain an advantage in the litigation (all of this commenced one week after the respondent was served with the applicant’s application).
21The court preferred the evidence of the mother and found her to be more credible regarding the respondent’s allegations and concerns. The mother vehemently denied all of the above allegations and effectively cross-examined the father and his witnesses on their evidence. The mother called as witnesses Dr. Russell and Jason Fremlin to give evidence on this issue and they both testified that they had no concerns about the mother overmedicating IB. She further submitted a discharge report from SickKid’s Hospital regarding IB to show there were no concerns about use of Advil and Tylenol.13 Further, the assessment of Mr. H. Hurwitz addressed the concerns and did not verify the respondent’s allegations or make any findings or recommendations regarding same.
22Although both the Society and the Police investigated this issue, they never verified the father’s concerns. Charges were never laid. 14 Instead of accepting their conclusions, the father doubled down. He continued to reinforce and share his allegations, speculation and fears throughout the litigation. He also talked about it with the children and any other professional/s that became involved with the family, including the jointly retained Assessor. The youngest child IB has expressed fears of her mother because the allegation has been shared and reinforced with her by her father.15 Because of this allegation, IB is growing up with a perception that her mother (whom she loved and was very close to prior to separation) was poisoning her. In the end, given that the medical professionals could not explain or diagnose the child regarding her abdominal pain, the court is not going to allow the father to continue to speculate on this issue any further. There has been enough damage done. The court cannot and will not allow this abuse to continue.
23It is important to note that the only concern that was verified by the Society was that of the children’s exposure to conflict in the home. Ms. Corrina Rock (Society Intake and Assessment Worker) who interviewed the children early in December 2017, advised the court that AB spoke positively about both of her parents. She said that despite the father’s allegations against the mother, AB felt safe with her mother and well taken care of by both her parents. Ms. Rock said that IB’s disclosures and presentation was similar to that of AB. IB felt she was well taken care of and was positive about both her parents.16 Neither of these two children expressed any concerns about their mother. Ms. Rock confirmed that on November 27, 2017 she received the referral by Dr. Grigoreva. Dr. Grigoreva’s concerns were with respect to NB (who was 14 years old at the time). Dr. Grigoreva’s concerns included NB’s report of possible overmedication of the youngest child; NB’s knowledge of the mother’s affair; and conflict in the home. She said she believed the children were at risk due to exposure to conflict.
24Ms. Rock said that the Society opened the investigation about post-separation conflict. She said that NB was worried about her mother trying to set up her father to get him to leave, and he may get thrown out of the house. She said that NB told her that “mom never hurt them, but that she is trying to set up her Dad to get him to leave.” NB talked about hearing her parents’ arguments in the garage. NB also discussed some self-harm behaviour and said her “Dad is perfect.” NB told Ms. Rock that it is Mom that tried to turn them against Dad.
25In acknowledgement of the lack of evidence, the father attempted to reverse the onus of proof and asked the court to find in his favor simply because, in his opinion, the mother had not provided him or the court with adequate evidence to disprove his wild allegations. For example, he argued that the mother never had the youngest child specifically tested for overmedication of Tylenol and Advil (when the child was having abdominal pain prior to separation and prior to the father even making the allegation). The father further argued that the mother had never shown him proof of a drug test to disprove his allegation that she was using steroids prior to or after separation.
26After separation, the father’s allegations continued against the mother. He alleged that the mother assaulted him on December 18, 2017 which resulted in the mother being charged and removed from the home. Again, the mother vehemently denies this and has a very different version of the events that lead up to the incident on December 18, 2017. What is very important to the court is the fact that the charges were eventually withdrawn, presumably because there was no reasonable possibility of a conviction. This was a situation where there was insufficient proof to support either party’s stories of what happened. Despite this, the damage to the children and mother’s relationship had already begun.
27After the mother was removed from the home, the eldest child refused to visit with her and the father permitted this behavior. He further limited the mother’s access to the two younger children to two short visits per week of only a few hours. The father then continued to make allegations that the mother was unpredictable and displayed poor judgment and that her behaviour and decisions put their children at risk. He made allegations that she took the middle child rock climbing in early January 2018 which he said was too soon after the child had been diagnosed with mononucleosis.17 He said this resulted in an emergency room visit because the middle child was in so much pain due to an injury sustained to her spleen. He continued in this allegation despite there being “no evidence of splenic pathology or injury.”18 Despite this lack of evidence, he demanded the mother provide him with an itinerary before being permitted to have any further access.19 After this incident, the father unilaterally withheld access until mid February 2018.
28When access resumed, the father complained that the mother was exposing the children to dangerous people by bringing the children to her home because there was a male tenant (who shall be referred to as “HH”) living in the basement apartment whom the father alleged was violent and used steroids.20 He used the fact that this person lived in a separate unit on the property as an excuse to demand that the children not attend at her home for access. Interestingly, the father commenced a romantic relationship with the ex-wife of HH who shall be referred to as ML. He called ML as a witness in the trial. ML testified that her and HH have a child together and despite her allegations against him, their child has regular access with HH. The court found ML’s testimony provided little to no evidence of any value to the issues in this case.
29The father maintains that despite all of this, he has always tried to facilitate and foster a meaningful relationship between the children and their mother. The court finds that despite these kind sounding words, what really happened was that the children were being controlled and withheld from spending meaningful time with their mother. They never began to have a normalized schedule of access with their mother and even the short visits discussed above continued to deteriorate.
30It is neither relevant nor helpful for the court to try and sift through the rubble of a marriage that ends in separation to determine why it ended. However, it is clear to the court that in this case, the unfortunate focus of the father was to show the mother’s faults (real or imagined) to anyone who listened and to punish and/or humiliate her for her choice to have an affair and separate from him. The Assessment provided a substantial amount of detail and context to the court regarding how the father alienated the children against their mother.
The Assessment & Mr. Hurwitz
31The parties jointly retained Mr. H. Hurwitz to conduct an Assessment under s. 30 of the Children’s Law Reform Act in April 2018.21 The assessment and recommendations were completed on July 19, 2018. The parents were unable to agree and follow through on the recommended therapy and residence schedule. As a result, the full written report was completed for the trial on April 1, 2019.22
32The court conducted a short voir dire on the admissibility of Mr. Hurwitz’s assessment and his opinions and recommendations. Mr. Hurwitz’s qualifications were not challenged by the respondent. Mr. Hurwitz has worked in child welfare for over 33 years and has vast experience working with high conflict families experiencing parent and child contact problems. He has completed over 175 Assessments (approximately 19-20 per year) and has testified in numerous trials where he has been deemed a “parental alienation expert.” After a short review of his CV and his testimony, the court was satisfied that Mr. Hurwitz was an expert in the subject of parental alienation and regarding the parent child contact problems in this family, and that he could provide the court with his opinions and recommendations regarding same.
33It was determined by the parties with counsel at the time of retaining Mr. Hurwitz, that the assessment “would centre on the reasons for the children’s lack of contact” with the mother. In particular,
it was necessary to ascertain the reasons for the disrupted contact and whether either parent was behaving in a matter to contribute to this situation. Furthermore, both parents and their counsel wanted the following issues to be explored and recommendations made pertaining to:
(a) Recommendations around custody and access regarding their children.
(b) Determine which parent, if any should have primary residence for their children or whether there should be a shared parenting arrangement.
(c) Determine the nature of their children’s relationships with each parent with a view to assessing what the residential schedule should be.
(d) Determine and identify the factors pertaining to why the access between the children and their mother has been disrupted; and to determine how this situation can be remedied.
(e) Determine if there are any safety issues for the children while in either parent’s care.
(f) Determine the adequacy of each parent’s child care capabilities commensurate with their children’s needs.
(g) Determine a suitable parenting and residential schedule including holidays and vacations.
(h) Identify why there is a high level of conflict between the parents and to develop ways to de-escalate this conflict.
(i) Assess and make recommendations around he impact of the conflict on their children and any needed treatment supports and/or counselling for any family members.
(j) Make a recommendation around the most suitable method of communication for the parents around the needs of their children.
(k) Determine a suitable alternate dispute resolution mechanism.23
34Furthermore, the parents were in dispute around where the children should attend school as the father wants to relocate to his parent’s home in Woodbridge and the mother wants to remain in Aurora. This issue was also addressed in the assessment and recommendations were made.
35It should be noted that reintegration therapy was discussed with counsel and the parents at the onset of the assessment, however, it was decided that before the therapy commenced, the assessment should be completed. The reason for this was that the assessment would “enable the therapist to have a complete understanding of the issues and dynamics in this family.”24 Mr. Hurwitz felt it was particularly important in this family “because the nature of the allegations” from the father and the children “were very extreme” and the mother was denying that these had occurred. Mr. Hurwitz commented that this “polarization was unusual.”25
36The court finds that the Mr. Hurwitz’s assessment, opinions and recommendations were fair to both parties. They were comprehensive, insightful and ultimately should be given significant weight. Mr. Hurwitz listed his sources of information on pages 5-7 of the assessment. They included: 4 interviews with the mother; 4 interviews with the father; 2 interviews with the children; a plan of care meeting with each parent; and final meeting with each parent; a joint interview with the parents; a family meeting with the father and the children; a family meeting with the mother and the children; a separate session for the mother and the eldest child NB; observation visits with the children and each parent; interviews with 10 personal collateral contacts; interviews with 9 professional collateral contacts; review of multiple documents; and a disclosure meeting.
37During the children’s interviews with Mr. Hurwitz, he described the younger two children as “deferring” to the eldest child to “answer most of the questions.” The middle child “deferred to her sister prior to her responding and when her sister validated her response by a smile or nod, she would proceed in answering the question. This was particularly evident if something negative was to be said about their mother.”26 In addition, the youngest child “looked scared when she had to respond.” Mr. Hurwitz found it notable that when he asked the father “about his thoughts about whether the children should see their mother, he was tentative in his response” (this question was posed in front of the children). Further, the father “didn’t challenge the children in their defiance towards their mother.”27
38The court found an important example of the father’s alienating behaviors occurred during Mr. Hurwitz’s observation visits with the mother. This is summarized at pages 22-26 of the Assessment. Mr. Hurwitz observed that the children were very empowered to do whatever they want AND what the father wants, which is for them not to have contact with their mother.28 The father talked about his fears and suspicions about the mother in front of the children. By doing this, he displayed and reinforced his theories that the mother posed a “danger” to the children. He made the children false promises and behaved with “learned helplessness” when the children resisted contact with the mother during the assessment.29 The father showed no insight in how his words, behavior and attitude had contributed to their ambivalence, confusion and resistance.
39Mr. Hurwitz found that the father’s behavior since discovering the mother’s affair and the resulting separation has been highly problematic and “passive aggressive.”30 Throughout the assessment, the father wanted to be seen as though he was an innocent victim and that he was trying to be cooperative. Mr. Hurwitz wrote that:
[The father’s] narrative is that the children are doing well as a result of them not having contact with their mother but I found no evidence to support his wishful thinking. [The father] needs the children to buffer against the loss of the family resulting from the marital separation. He doesn’t want to share the children to see the ‘break up of the family’ so he has set up a situation and narrative whereby the children are unsafe with [the mother] and he is the only one that can provide for their care. This is a very destructive dynamic and very hurtful to the children, particularly since they are starting to believe this too.
[The father] also has a strong alliance with [NB] and shares details with her about her mother’s behavior. NB, in turn, has a profound influence on the younger two children. NB has struggled with severe mental health issues in 2017 and is fragile emotionally. Her father’s reliance on her in this way is destructive and continues to put her in the middle of the parental conflict.31
40Mr. Hurwitz also found that “the mother had experienced her own trauma from the events pertaining to the marital separation.”32 He said that the mother herself has contributed to the parental conflict with her lack of discretion with respect to the affair and her “posting of pictures on social media” which allowed others to have access to details of her ongoing relationship after separation. He found it problematic that she had repeatedly called the police to make minor allegations against the father. Lastly, although the facts and timelines are unclear, Mr. Hurwitz found that the mother’s lack of discretion contributed to the children becoming aware of her involvement with DL and many other details about this relationship.33
41In July 2018, Mr. Hurwitz recommended the parents share in a “joint custody, parallel parenting plan.” The mother was to have final decision making over educational issues and the father was to have final decision making over health care. The mother was to have final decision-making over therapy and counselling issues pertaining to the children. The children were to remain living in Aurora and attend their current schools unless both parents agreed to a change. There was to be a “graduated residential schedule” or “step up” parenting plan that would have four phases and culminate in a 50/50 “week about” parenting schedule by Christmas 2018 with transfers to occur after school on Fridays. The father was to continue receiving counselling. Two very important recommendations were that the entire family was to retain a reunification therapist to assist them in repairing their relationships as a result of the alienation. The recommended therapist was Dr. Shely Polak who was available at the time to provide service to the family. Secondly, in the event that the father was unable or unwilling to implement the recommended graduated schedule, “serious consideration would be given to the need for a reversal of custody” so that the mother would have “sole custody and there be a modification to the 50/50 parenting schedule.”34
42As stated earlier, the father opposes any finding of parental alienation and lays the blame for the children’s estrangement and alienation from their mother solely on the mother. He says that she alone damaged her relationship with the children and was the “primary cause for her own estrangement” and/or “alienated herself” from the children.35 The respondent asked the court not to give the assessment or evidence of Mr. Hurwitz any weight. He proffered the 2013 case of Fielding v. Fielding, affirmed by the Ontario Court of Appeal in 2015, in support to excluding the assessment and the opinions and recommendations of Mr. Hurwitz.36 The court finds that Fielding does not support the father’s position regarding excluding the assessment. It actually confirms the trial judge’s ability to make a finding of fact concerning the assessor’s conclusions.
43In the Fielding case, MacKinnon J. of the Superior Court of Justice accepted the assessment and recommendations of a Dr. Sutton who had been jointly retained by the parties to conduct a custody and access assessment. Dr. Sutton made interim recommendations and when no progress was made, he completed a final report. Dr. Sutton testified and was cross examined during the trial. In that case it was the mother who disputed the validity of Dr. Sutton’s recommendations and proposed that the court should prefer the generic opinion of another assessor with respect to parental alienation. This second assessment/report was completed by Dr. Baker, who had been privately retained by the mother and had never met the family. MacKinnon J. accepted and preferred Dr. Sutton’s opinion and recommendations and made findings of fact regarding alienation based on the evidence. MacKinnon J. allowed only a part of the second assessment/report (Dr. Baker) to be admitted, specifically with respect to some theory and research pertaining to parental alienation. On appeal, the mother sought to re-litigate the findings of the trial judge in accepting Dr. Sutton’s recommendations and proposed therapy over the report of Dr Baker. The mother’s appeal was dismissed.
44Like in Fielding, throughout this trial, the respondent sought to criticize and discredit the parenting capacity assessment and the evidence of Mr. Hurwitz. However, unlike in Fielding, the respondent did not offer an additional assessment or even a professional critique of Mr. Hurwitz’s assessment. Instead, the father made allegations that Mr. Hurwitz was inconsistent and dismissive of the father and children’s concerns. The father’s specific complaint about Mr. Hurwitz’s inconsistency was with respect to his failure to reply to an email sent by the middle child after the retainer agreement was over. The father’s specific complaints about Mr. Hurwitz’s “dismissiveness” were: that Mr. Hurwitz dismissed the father’s allegations and concerns about the mother’s alleged steroid use and overmedication of the youngest child; and that Mr. Hurwitz dismissed the father’s concerns regarding the tenant HH (who was living in the basement of the mother’s rental unit).
45It should be noted that the father’s complaints about Mr. Hurwitz’s “dismissiveness” and “inconsistency” did not surface until after the assessment was completed and his findings and recommendations were made. The court finds that the father’s difficulty with the assessment and Mr. Hurwitz have more to do with the finding of “severe parental alienation” against him rather than the recommendations for shared parenting. The father said during the trial (more than once) that he hoped to some day have a shared parenting schedule like what was recommended in the assessment.
46The father further criticized the assessment as containing discrepancies and contradictions. He complained that Mr. Hurwitz was biased and was inaccurate in recording and interpreting the collateral information. Lastly, the father asked the court to give more weight to the opinion evidence of the children’s recently retained therapist Ms. Roxanne Francis over that of Mr. Hurwitz.
47The father called as a witness Ms. Tina McDonald (who was the family’s neighbour for 15 years and whose daughter was a friend of the eldest child NB). Ms. McDonald and her husband Mr. Martin McDonald had been collateral contacts for the father in the assessment. The summary of her information is found at pages 59-60 of the assessment. She read and confirmed that the summary of her collateral contact with Mr. Hurwitz was correct except for two sentences. Specifically, these two sentences referred to the father being “negative” with the mother, and that the father “would often make critical comments” towards the mother “as he thought he was better than her.”37 The court accepts that Mr. Hurwitz may have incorrectly attributed these two comments to Ms. McDonald. At worst, the comments were made by someone else, at best, they could have been something that was told to Ms. McDonald during a conversation with the mother, (the mother had called Ms. McDonald to tell her about the separation).38 The court finds however, that even after striking these two sentences from the assessment, this does not create a serious flaw in the assessment. Mr. Hurwitz confirmed on the stand that there is possible room for misunderstanding when interviewing so many collateral witnesses. Ms. McDonald confirmed that she herself had miscommunicated some of her statements during the interview with Mr. Hurwitz. She corrected these statements with a follow-up phone call with Mr. Hurwitz (which was reflected in the collateral summary).39
48In actuality, even with those two sentences struck from the assessment, the court found Ms. McDonald’s evidence was helpful regarding the issues of parenting. On the stand, Ms. McDonald confirmed and described that “prior to the separation” the mother “did most of the family work” and that she “arranged for all the appointments for the girls, made the birthday parties and took care of most other parenting tasks.” She described the girls as “very attached” to their mother and “described their relationship as being close. There were no signs of stress between the girls and their mother.” She said things are very different now. Ms. McDonald emphasized that the mother “is a great person. She is a hard-working person who goes ‘above and beyond’ for her children.” Ms. McDonald described the father as “a good father. She has never seen anything problematic from a parenting perspective. Lately, he is attentive to the girls, however, prior to the separation, the mother “did everything for the girls.” She said that now the father was taking the girls shopping and was buying them things, and that he never used to do that before, (she explained this was because the mother used to do those things when she lived with them). She further confirmed that she did not experience any feelings of bias during her interview with Mr. Hurwitz.
49The father leveled a serious allegation of bias against Mr. Hurwitz, however, the court finds that the evidence he gave to support this allegation was very weak and carries little to no weight. The father testified that Mr. Martin McDonald expressed concerns to him about his interview with Mr. Hurwitz. On the stand, the father said that Mr. McDonald said he felt that the tone of the interview with Mr. Hurwitz was biased against the father. Although Ms. McDonald confirmed that her husband felt that way, no other details or specifics were provided. Mr. McDonald did not testify during the trial. The father submitted a letter from Ms. McDonald dated May 22, 2019 and from both Mr. McDonald and Ms. McDonald dated January 25, 2018. Neither of these letters mentioned any concern about bias during their interviews with Mr. Hurwitz. No other witnesses mentioned any concern about bias during the assessment or the trial.
50Lastly, the father disagrees with Mr. Hurwitz’s report as it states that the parties eldest daughter NB has severe mental health concerns and is “at risk for developing ongoing mental health problems.”40 The father argues that none of NB’s health care providers including her psychiatrist Dr. Grigoreva and current therapist Ms. Roxanne Francis have “diagnosed” NB with “severe mental issues.”41 Again, like with the allegations regarding the overmedication and the steroids, the father tries to prove something by pointing at the lack of evidence for same. On this issue, this method backfires against the father, because there is a significant amount of evidence that shows NB’s mental health was suffering. NB was having issues with anxiety and self-harm in the spring of 2017. She was referred to therapy and was taken to a “life coach” for sessions throughout the summer of 2017. Additionally, Dr. Grigoreva from Southlake Hospital became NB’s psychiatrist. She became involved with NB in November 2017 because Dr. Russell (NB’s family doctor) made a referral. Dr. Grigoreva saw NB every three weeks until April 13, 2018.42
51The court does not accept any of the father’s criticisms of the assessment or the evidence, opinions and recommendations of Mr. Hurwitz. The court finds the father simply did not like, agree or accept Mr. Hurwitz’s opinion and recommendations with respect to anything that shone a negative light on the respondent himself. The father tried to cherry pick parts of the assessment to support his position and to discredit Mr. Hurwitz for the parts that he didn’t like. For example, he asked Mr. Hurwitz to read from the assessment regarding his observation visit with the children and father.43 He dwelled on the part where Mr. Hurwitz wrote, “Mr. [B] has good parenting skills. He is comfortable with assuming a full parenting role and ensured that all tasks pertaining to the meal, lunches, confirming appointments for the children are done.” The father then posed a direct question to Mr. Hurwitz after reading that passage: “Do you think that I am a good parent?” To which Mr. Hurwitz answered, “No.” Mr. Hurwitz went on to say that he found that the father had good parenting skills with respect to the day to day routines and meeting the basic needs of the children. However, this did not make him a “good parent” because in his opinion, the father was not addressing the children’s emotional needs and his alienating behavior was so severe, it was a form of abuse.
52As said by Benotto J.A. in Fielding, at para. 16, it is “open for the trial judge to accept the recommendations of the jointly chosen assessor.”44 In the case at bar, the court is entitled to accept Mr. Hurwitz’s opinion that this is a case of severe alienation and make findings of fact based upon that evidence and his recommendations. Unfortunately, after the assessment, a couple of events occurred that almost immediately halted all progress for this family as recommended by Mr. Hurwitz. The parties never moved forward with the recommended “step up” graduated parenting plan or the reintegration therapy. The first overnight visit was cancelled by the mother and subsequent visits were never planned and/or agreed to by the parties.45 The reintegration therapy never commenced due to the failure of the father in submitting his intake forms.46 These two failures to follow through with the recommendations resulted in another entire year of no contact whatsoever between the children and their mother and the parties requiring a trial.
Access and therapy after the Assessment and the father’s continued alienation
53The reasons for the cancellation of the first graduated overnight visit are unclear and complicated. Shortly after the disclosure meeting in July 2018, the father reported to the police that the mother had allegedly breached the conditions of her bail/peace bond during an access exchange. As the police did not consider this allegation to be a serious breach, they did not arrest the mother right away.47 It just so happened however, that on the weekend the children were supposed to commence their first overnight visit with their mother (according to the recommended schedule) the mother was arrested for the alleged breach. The mother texted the children regarding the cancellation of the visit and claimed she was sick.48 She admitted that she lied to the children and explained to the court that she didn’t want the children to know she had been arrested or place blame on the father for the cancelled visit. Despite these efforts, the children and/or the father found some social media posts that they perceived to be proof that the mother had lied and just cancelled the visit so she could go on a trip with her boyfriend. They blamed her anyway for cancelling the visit. The children were already having difficulty attending the scheduled visits with their mother, however, after this event, the father said the children were unwilling to implement the graduated “step up” parenting plan, and he was unable to make them go. The mother decided to temporarily suspend access so that the focus could be on immediately commencing the out-patient reintegration therapy with Dr. Shely Polak.49 The court finds that the applicant’s decision to temporarily suspend the access was an unwise decision as it helped the father spin her decision into his theory and narrative that the mother didn’t truly care about the children. However, this event in no way proves the father’s allegation that the mother is solely responsible for the alienation of the children.
54Unfortunately, the reintegration therapy never commenced due to the father’s admitted nine-month delay in submitting the intake forms to Dr. Polak. For the court, this act by the father was a very important, clear and unequivocal piece of evidence in support of the mother’s position the father was alienating the children. The father did not provide one valid excuse for his delay. The court finds this one act (or failure to act) was not only reprehensible but spoke volumes as to the true intentions of the father. The father said that he supported reunifying the children and their mother, however, he did the one thing to ensure that they never got the help they needed to make it possible. He did this in the face of the emotional difficulties the children were already experiencing with access. At best, this showed the court that the father’s need to control the children and their contact with the mother outweighed his concern for their best interests. At worst, this showed the court that the father was conniving. It showed he was actively, knowingly and purposefully sabotaging any chance for the children and their mother to heal their relationship. In short, it was clear to the court that he was continuing to alienate the children against their mother by his words and actions and/or inactions.
55By the time he finally submitted his intake, Dr. Polak had already advised the parties that she would not be available to help their family. The family was referred to another therapist that works with Dr. Polak, being Mr. Richardo Theoduloz. Mr. Theoduloz testified during the trial regarding his involvement with the family and his ultimate decision to discontinue out-patient reintegration therapy.50
Mr. Theoduloz
56Mr. Theoduloz met with the family in the spring of 2019. The family participated in a Clinical Intake Consultation (CIC – to determine suitability for outpatient reintegration therapy). They never actually commenced reintegration therapy. Mr. Theoduloz confirmed that the father attended at the office and brought the children. In addition to the intakes, the parties provided retainers and other materials including a copy of the Assessment.
57Mr. Theoduloz met with parties and the children. He had follow-up meetings and worked through letters of apology to the children to be read to the children by father. The only indirect interaction between the mother and children was when the father read her letters to the children. They were letters that offered an apology collectively and individually, but they did not apologize for the affair, because Mr. Theoduloz explained that parents “don’t need to apologize for affairs because it has nothing to do with them.” The letters were read into the record.51 In the letters, the mother tried to remind the girls of good times they had and her love for them. The court found them to be quite moving and sincere. Unfortunately, the girl’s reactions were of disbelief. AB said that it was “too late.” They questioned them as being insincere. The letters did not impact them positively and the father’s comments to the children to “forgive” their mother for “her mistakes” were ineffectual. Mr. Theoduloz said that this work “did not move the needle in any positive direction.”
58As a result, Mr. Theoduloz found this family was “counter-indicated” to do out-patient reunification therapy.52 When asked to explain his opinion about the out-patient therapy being “counter-indicated” Mr. Theoduloz said that in each case it depends on the severity of the rupture in the relationship. He said there are gradations. Sometimes outpatient therapy can move the family forward, however, sometimes, where there has been little to no contact despite attempts to repair, he has found that outpatient therapy was counter indicated (i.e. that it won’t work). Mr. Theoduloz found that the three children were very rigid in their positions and the father’s position was equally rigid – being that the separation was 100% the mother’s fault, due to her abuse and neglect. He found the father’s views were that it would be very detrimental for the children to be with their mother.53 There was no ability on father or children’s part to recognize that they would have contributed to any part of the rupture. For therapy to work, regardless of the reasons of why there has been a familial breakdown, both parents need to share the responsibility in what happened and what they are going to do now.
59Mr. Theoduloz found the position presented by the elder child was as a “leader”. He described the eldest child NB as “hostile and stuck and that in her presentation NB had a dual role as a big sister and parent”. He explained that the middle child AB was “angry” and said she “knows what happened” with her parents. He said that the youngest child IB said that she “didn’t want to be with Mom. Mom gave me medicine for my stomach.” She said she “didn’t want to see Mom at all. She wanted to move on.” Mr. Theoduloz described that IB was wearing a shirt with a heart with four names (only her siblings and father). He described IB the quietest of the three girls. Mr. Theoduloz said, (and the court agrees) that the recommended intensive therapy would need to incorporate all three children and that it is very important to ensure they all get the same help.
60The father stated that he was not the cause of the problem with the reintegration therapy being cancelled. He said that the reason reintegration therapy did not proceed was because of the mother’s “bad behaviour.” He gave details and raised concerns about the mother’s fidelity, etc. He said that the mother had chosen her new partner over him and the family. Mr. Theoduloz stated the father was not correct. There was no single meeting with the mother and children. Additionally, Mr. Theoduloz was asked whether the father delayed the commencement of their involvement with him and he confirmed this was true. Initially the father said he did not have funds. The father also took issue with counsel providing documents to the therapist. This created an additional delay of about three weeks.
61Mr. Theoduloz said in his opinion, the Assessment was quite thorough. He had no concerns about it. He said that one solution for the family could be an intensive reintegration/reunification program that involved either the entire family or just the alienated parent and children (like those offered through Family Bridges and Families Moving Forward as suggested in the Assessment). He said that these types of programs have affected positive progress in some families. The children’s ages and how long they have held their position is important and can affect the outcome. He could not predict the outcome.
Ms. Roxanne Francis
62The father called as a witness Ms. Roxanne Francis with whom the children had commenced seeing in the capacity of providing therapy to help deal with issues of stress, anxiety and sleeplessness. Ms. Francis advised the court that about half of her practice is focused on helping children with anxiety and depression. She was not qualified as an expert in this trial and specifically stated that she had no experience with respect to high conflict separation and family reunification. She testified that she had begun to see the children in early October 2019 (just prior to the trial) and had seen them approximately five times so far. Concerns as presented by the children included: anxiety, not sleeping, lack of focus in school; separation from mother and fears relating to visiting her. Ms. Francis was providing counselling to assist them in developing strategies to deal with their anxieties and fears and have better sleep and focus in school. She specifically stated that she was not an expert in the field of parental reintegration or reunification. She advised the court that she had not read the assessment and did not know of its existence. She had not been told about the assessment or been provided a copy of it by the father.
63She described the eldest of the children as the main spokesperson. NB was somewhat acting in a protective or parental manner towards her younger siblings. Ms. Francis’ testimony was helpful in that it showed that the children are still unfortunately suffering from stress and anxiety due to the post-separation conflict. Her therapeutic support for the children was limited to helping them develop general strategies with dealing with stressful situations (at school, with friends or in the context of their parents’ separation).
64As stated above, Ms. Francis did not know about the assessment or that one had been completed for this family. Everything she knew about the parties and their separation was information provided to her by the father and the children. When asked if she knew what a s. 30 Assessment was, she admitted that she did not. The court found Ms. Francis’s intentions were very good as she wants to help these children, however, it is obvious that she was not working with all the tools needed to truly assist them.
65The father did not advise Ms. Francis of the existence of the assessment and actually resisted giving her a copy of it, (even after she said on the stand that it could help her in providing therapy for the children). The father expressed concerns about the therapist becoming biased against him. During Ms. Francis’ testimony, the father tried to introduce private pieces of the children’s writing (that took place during therapy) as evidence to support his case. The court did not allow it as it was a complete violation of the children’s privacy and these pieces were not written with the intention of being presented in court. Ms. Francis agreed that the writings were private and not intended for court. She did not support them being shared during the trial. The court finds that the father’s intentions of calling Ms. Francis as a witness were not to help determine the children’s best interests. Given how recent the therapy had commenced (just weeks before the trial) the court finds that the father was strategically trying to use Ms. Francis to support his position that the children should not have contact with the mother. Ms. Francis was not determined to be an expert54. In any event, she could not provide the court with any evidence, opinions or recommendations regarding the custody and access issues or the best interests of the children.
66The court finds that in order to support his position, the father has chosen to be blind to the obvious stress, grief and anxiety that all three children are experiencing due to the separation, continued conflict between the parents, and the loss of their mother in their lives. It is sadly ironic that the father fails to see that the involvement of multiple mental health professionals as well as the police and the Society all point to some serious ongoing clinical issues for this family.
The mental health of the children and the continuing alienation:
67Due to anxiety and other symptoms of stress pre and post separation, NB had seen her family doctor, a life coach, a psychiatrist and now another child therapist over the last two years. The need for this type of professional help is a pretty clear indication that NB suffers from some serious mental health issues. There does not need to be a stigma attached to this, as it would seem very natural given what NB has gone through. The court finds it alarming that the father lacks this insight and that he seemed to view Mr. Hurwitz’s expressed concern for NB’s mental health as an attack on her character.
68The father called a witness named Darnell Thomas to testify about NB’s character. Darnell Thomas said that he has known NB for 2 years and has worked with NB as a private vocal teacher and a temporary school teacher. Darnell Thomas described NB as a “talented, intelligent and vibrant young girl” who in his opinion possesses “a high EQ (Emotional Intelligence) and is very “self-aware, knows how to self-regulate her emotions” and is “empathetic, motivated and very social.”55 He further described her as “honest and kind; respectful and loyal and most of all, a very loving and caring individual.” The court finds that it is wonderful that NB continues to succeed academically and that she shows great courage and confidence. All of this shows that NB is very strong, however, it is not conclusive proof that she is mentally healthy and that her expressed wishes regarding the parenting issues are independent.
69Although the court questions the independence of NB’s expressed wishes, the court does not question her character. The court finds that the family situation and the father (and mother to a lesser degree) has placed NB in a highly parentified, painful and impossible situation. She was already experiencing anxiety pre-separation due to her own personal issues and the escalating conflict between her parents. She became burdened with suspicion and partial knowledge of her mother’s affair. She amplified the negative narrative about the mother by ensuring the younger children have knowledge and details of her father’s theory of the separation. The court finds that in her efforts to try and control her life that was spinning out of control, and in her desire to protect her younger siblings and her father, NB became a loyal “agent” for the father.
70By staying loyal to her father and remaining his confidant, NB has gained a great deal of power (and both AB and IB have watched this happen). Both parents testified that NB had a strained relationship with the respondent pre-separation. However, after separation NB showed great loyalty to her father and tried to protect him in certain situations, (e.g. NB agreeing to make a report about the mother to the police regarding the allegation of overmedication; calling 911 for him during the altercation between the parents in December 2017; returning her mother’s gift of flowers; sending her mother and extended family horribly disrespectful and derogatory texts). Her reward has been lots of attention from her father with no consequences for anything she does wrong. The father has provided her with expensive musical theatre training; trips to New York for auditions; no limits or consequences on her cell phone usage or what she says or does.
71In addition to the above concerns about the mental health of NB, the court is concerned regarding the mental health of the younger children. The middle child AB has been suffering sleeplessness and anxiety. The youngest child IB (whom both parents describe as sensitive) also finds herself suffering similar anxiety issues regarding the separation.56 Because of the loudness and strength of the father and elder children’s stories, IB has been given little to no voice in this entire process.
72The mother supports the finding that the father has alienated the children against her. Her theory of the case is that although her extra-marital affair was one of the reasons for the separation, but not the sole reason for same. She described the father as controlling and that in the year leading up to the separation the parties began to fight and have more arguments. The parties both admit they had loud arguments in the garage of their home leading up to and following the separation. The mother also gave evidence about her unhappiness and resentment in the marriage with having to shoulder most or all the parenting and household responsibilities as well as having to work full time outside the home to support the family financially. She submits that once she was removed from the family home, the father quickly removed her from the children’s lives.
73The mother admits that she agreed to the installation of the Partner Tracker app on her phone, however, she says that the father either misled her as to what this app did, and/or he installed illegal “spyware” on her phone without her consent. She denies that she ever assaulted the father and has a very different explanation about the events of December 18, 2017. The fact is that the charges were withdrawn. Despite this, the children never began spending any normalized time with their mother. She says that the father continued to spy on her and shared negative and/or untrue information about her with the children. She denies that the father supported or encouraged the children to have a relationship with her. She points to the father’s unverified allegations that she was overmedicating the children; his strictly imposed time limits on access visits; his unreasonable demands for a written itinerary for access visits; and his restrictions on location and activities for access. She alleges that the father has purposefully and intentionally alienated the children against her. She described and gave evidence that the father used a set of alienating “strategies” including: bad-mouthing the mother; limiting contact with the mother; taking steps to erase the mother from the life and mind of the children. She submitted that the father created an impression that the mother is dangerous and he belittled her and even limited contact with the extended family of the mother. She submits that the “severe parental alienation” exercised by the father is a form of child abuse. She requests an order for sole custody of all three children and no access to the father for a period of three months so they can complete an intensive therapeutic workshop with FB. She advised the court that after the therapy was completed, she hoped to have a shared/equal parenting plan with the respondent that contemplated the children living with each parent equally.
74For the court, aside from the Assessment, a key fact that supports the mother’s position that the father has alienated the children was the father’s admitted nine-month delay in submitting the intake forms for out-patient reintegration therapy with Ms. Shely Polak. The father did not provide one valid excuse for his delay and the court finds this reprehensible. The court finds that the father did this in the face of the emotional difficulties the children were already experiencing with access, and this shows that the father’s need to control the children and their contact with the mother outweighed his concern for the children’s best interests. The court found it interesting that in the respondent’s Answer, he agreed to the applicant’s request not to speak ill of the applicant mother to or in front of the children, “except as necessary to report factual information to medical authorities, school, CAS or police.” He used his untrue negative theories about the mother harming the children as his excuse to continually speak to the children and other professionals about her and to reinforce negative views of the mother.
75The respondent showed his need for control in other ways during the assessment and during the trial. During the assessment he asked Mr. Hurwitz to provide him with the questions in advance of any interviews with the children. During the trial, he requested that the judge not only interview the children, but also that the judge provide him with a copy of the questions in advance and that the interview be video recorded and played live simultaneously for the parents to view.
76What all this shows was that the findings of the assessment were accurate. The father’s professed desire and efforts to support and encourage access were just words. The father had good day to day parenting skills with respect to routine tasks like meals, school and activities and he was affectionate and loving towards the children. However, his inability to bring the children to therapy and support them emotionally showed that he was a somewhat ineffectual parent who lacked insight in how his behaviors and words have contributed to the children’s suffering. They have suffered through exposure to their parent’s pre- and post-separation conflict and have lost over two years of valuable time with their primary caregiver, (being their mother pre-separation). Additionally, they lost contact with all their extended family on the mother’s side.
77As explained earlier, perhaps the most concerning allegation made by the father was the allegation that the mother was purposefully overmedicating the youngest child with Advil and Tylenol and causing the child’s health to suffer. The psychiatrist Dr. Grigoreva had a professional duty to report the disclosure to the Society, and she did. The father did not have to encourage NB and take her to the police to make a report. From this child’s words, the father spun a very controlling conspiracy theory. His theory was that the mother had: shown poor judgement due to her alleged steroid use; this poor judgment led to her commencing her affair with DL; it further led her to support the affair by drugging the youngest child (so she could go out with her boyfriend). He then pointed to the youngest child’s tummy aches as proof that she was suffering the effects of being overmedicated/poisoned with Advil and Tylenol for an extended period of time.
78At the time of the Society’s investigation, the younger children never expressed concern about the medication or confirmed the allegations. The children’s doctor also confirmed that she never had a concern about the mother in this regard.57 The police and the Society declined to verify the father’s allegations regarding the medication.58 Despite this, the father has continued to this day to level this serious allegation against the mother. He has done nothing to protect the children from being exposed to it and he did nothing to correct his own and the children’s misguided fears. This means that if the father is permitted to continue having sole care of the younger children or unsupervised access, the younger children will continue to grow up with the terrifying belief that their mother was overmedicating and poisoning the youngest child. The court cannot and will not allow this to continue. This ridiculously immature and emotionally damaging story has gone on for way too long. The court finds that the father’s actions of bringing NB to the police was strategic. He did it to try and gain control and an advantage in the litigation and separation, with no regard for the outcome and results or emotional damage he was causing to the children.
79Supported and encouraged by the father, NB developed some very rigid black and white thinking about the affair and her parents’ separation. She became aligned with her father and they shared information and opinions (social media and gossip). The father and NB’s negative views became further entrenched as time went on and the drama continued. He did nothing to protect NB or the other children from being exposed to the drama and conflict. The court finds that the father either directly shared his negative views about the mother with the younger children, or, he did nothing to prevent or discourage NB from doing so. Either way, it made no difference because the damage was done, and it continued for months after the separation and possibly to this day.
80For all the reasons set out above and based on the evidence and submissions presented during the trial, the court finds that there is more than sufficient evidence to make a finding that the father has alienated the children against their mother. As a result, in addition to the order set out below, the court is concerned that the children may be at risk of harm and will ensure the Society is given a copy of this decision and order so they may monitor the family situation, and take steps to protect the children if they deem it necessary.
Custody and Access - How should the family move forward in the best interests of the children in light of the above finding of parental alienation?
81In light of the above finding of parental alienation, the court finds that it is in the best interests of the youngest children (AB and IB) to reverse custody and place them in the temporary care and control of their mother with a step-up graduated plan that would result in a final shared parenting order (as was recommended in the Assessment).
82With respect to the eldest child, NB is almost 17 and is closer to being a young adult than a child. As a result, the court finds that in NB’s case, as Benotto J. said in Fielding, “time has overtaken the custody issue.”59 NB’s actions have given voice to her wishes. Although the court does not find that NB’s wishes or actions have been independent or in her best interests, it is clear that NB’s wishes demonstrate her “capacity for self-determination.” Additionally, the parents have permitted NB to determine how and when she spends time with her mother ever since they separated. The court will permit NB to continue to determine her own residence schedule in accordance with her wishes.
83When considering the merits of any parenting plan and application for custody or access, the court must base its decision on the best interests of the children. Determining the best interests of children in a family matter is not an easy decision. That is because what is easy or fair is not always what in the best interests of the children.
84In Gordon v. Goertz60, McLachlin J. confirmed that in determining the best interests of a child, “[e]ach case turns on its own unique circumstances and the only issue is the best interests of the child in the particular circumstances of the case.” The best interests of children are determined by reviewing the many factors as set out in ss. 24(2), (3) and (4) of the [Children’s Law Reform Act]61. In this matter, the court was required to consider all the child’s needs and circumstances set out in s. 24(2), including:
(a) The love, affection and emotional ties between the child and,
Each person including a parent or grandparent entitled to or claiming custody of or access to the child,
other members of the child’s family who reside with the child, and
persons involved in the child’s care and upbringing.
(b) The child’s views and preferences, if they can be reasonably ascertained;
(c) The length of time the child has lived in a stable home environment;
(d) The ability and willingness of each person applying for custody or the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) The plan proposed by each person applying for custody or access to the child for the children care and upbringing;
(f) The permanence and stability of the family unit with which it is proposed that the child will live;
(g) The ability of each person applying for custody or access to the child to act as a parent; and
(h) Any familial relationship between the child and each person who is a party to the application.
In addition to the above factors, in accordance with s. 24(3) of the CLRA, a person’s past conduct shall be considered only in accordance with s. 24(4); or “if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.”
85In addition to the above factors, in accordance with s. 24 (3) of the CLRA, a person’s past conduct shall be considered only in accordance with s. 24(4); or “if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.”
86In this case, the court has no doubt regarding the love, affection and emotional ties of the children with both parents and their extended families. During the trial, there was ample evidence provided from both parties and the other witnesses that showed children and parents as having a close and loving relationship prior to the separation.
The children’s views and preferences
87The respondent repeatedly asked the court to interview the children during the trial in order to consider the children’s views and preferences regarding custody and access pursuant to sec. 64 of the CLRA. The court found that the father’s requests were self-serving. This is because it is very likely the father has no doubt about what the children will say in an interview on this topic and that it would support his position. The eldest child was aligned with him from the beginning of the separation. Her alignment only became stronger with the father’s support and encouragement and rewards of expensive extra-curricular activities such as trips to New York to audition and private vocal lessons. Additionally, she had already been acting out her wishes with the full support of the father by not attending access visits with her mother since December 2017. The younger children are strongly aligned with the eldest child and their father. They report and say whatever the eldest says and/or approves.62
88In any event, the court declined conducting a judicial interview. The court explained to the parties during the trial that pursuant to sec. 64 the court shall consider the views and preferences of the children, however, this does not require the court to conduct a judicial interview of the children. The decision to conduct a judicial interview of a child or children at any junction of a family law matter is purely at the discretion of the judge hearing the case. It can be helpful in some cases where there is no other way to have the children’s views expressed to the court. However, in this case, the court found that ample evidence of the children’s wishes had been presented because the court had the benefit of a s. 30 Assessment. The children had clearly expressed that they wished to reside with their father. They also expressed their wishes with respect to having no contact with their mother and not wanting to participate in reintegration therapy.63 The children’s views were not only provided through the assessment and through the testimony of the assessor Mr. Hurwitz. They were also presented through the testimony of their therapist Ms. Francis and the Society workers.
89In terms of context and independence, Mr. Hurwitz described the younger children as highly influenced and reliant on information about the separation from the eldest child.64 The middle child AB was very “emotional” during her sessions and is “highly influenced” by NB and “adopts whatever perspective her older sister takes.”65 The youngest child was described as “quiet,” “fragile,” “fearful” and overwhelmed with anxiety. IB is “completely convinced that her mother has attempted to harm her.”66 The testimony of Ms. Francis and the Society workers did not contradict Mr. Hurwitz’s description of the children’s presentation or their views. As such, the court found that the children’s expressed views lacked independence and consistency (the children’s views as expressed to the Society’s social workers changed over time). For this reason, little weight could be given to their views and preferences. The court is permitted to discount the wishes of the children when their wishes are not independent.67
The best interests of the children
90The children have been residing with the father for almost two years leading up to the trial. The father has been able to provide the children with a stable home and the physical necessaries of life. However, the court finds that the father’s alienating behavior is a form of emotional abuse that cannot be permitted to continue. It is not in the best interests of the youngest children to be left in the father’s unsupervised care. Unfortunately, if the eldest child chooses not to reside with her mother and/or participate in the reintegration therapy, it means that she also should not have unsupervised time with the younger children, (due to the potential for NB to continue reinforcing negative views about their mother).
91The father’s inability and/or unwillingness to support the children’s relationship with their mother and their extended family show his lack of empathy and ability to act as a parent in the best interests of the children. The court finds that after the separation, the father enlisted the help of the eldest daughter, and the two of them created a wedge between the younger children and their mother. The father severely controlled and limited the children’s contact with their mother. He justified his behavior with his theories and suspicions about the mother, but he had no proof to support his behavior. He enlisted the eldest daughter (intentionally or unintentionally) to continue to help reinforce the negative talk and thoughts about the mother.
92The court agrees with the Assessor that the mother was very unwise to continue posting on social media about her new life with her boyfriend.68 This showed lack of insight and sensitivity by the mother especially in the midst of a high conflict separation. It caused the father and the children pain and embarrassment and contributed to their anger towards her. However, the father was not completely innocent in the children’s exposure to these posts. He did nothing to protect the children from exposure to social media. He permitted them free reign with their cell phones and did not supervise or support the children adequately. It is unknown and unclear how much the eldest child found and shared with the younger children…causing them further upset and confusion.69 All of this simply supports the necessity for the court to make an order that neither party post anything on the internet about the separation, this trial or about each other.
93Unfortunately, the father continues to take no responsibility for his behavior and to this day, he promotes an environment of fear and distrust between the children and their mother, further hammering the wedge between them. He has no qualms about throwing the eldest child “under the bus” and blaming her for sending horribly disrespectful and abusive text messages to the mother or about the mother to the mother’s family, (that are eerily similar in language and style to texts NB may have read on the father’s cell phone).70 When asked by the court if he ever disciplined the eldest for her disrespectful texts, he provided little to no evidence that there were any consequences. This showed the court that even if he didn’t prompt the negative behavior, he also did nothing to stop or discourage it. Like in a child protection cases, the court can find a “risk of harm” by what a parent or caregiver is doing or not doing, this court finds that the father has been alienating the children against their mother by his own action and inaction.
94The father had a chance to redeem himself after the assessment was completed. If the recommendations of Mr. Hurwitz had been followed, this family would likely have moved forward and healed to some degree. However, the father purposely delayed the commencement of reintegration therapy and did not support or consent to the graduated residence schedule. It is because of his own actions that the less intrusive options of a graduated residence schedule and out-patient reintegration/reunification therapy became obsolete. This shows that the father is neither capable or willing to support the children and provide them with the emotional guidance they need.
95The father seeks an order for sole custody and primary residence of all three children. He submits that the children are “thriving” in his care. He describes himself as a single parent who has focused on raising his children in a “loving safe and happy environment.” He says that he and the children are succeeding in “promoting positive emotional development and success” in their education and extracurricular activities. The father submitted that it was in the children’s best interests to continue in his primary care because they were doing so well in school. He pointed specifically at the improvement in their late arrivals at school. The children’s report cards, (specifically the absences and late arrivals) during the years leading up to the separation show that the children were struggling with getting to school on time. During the school years 2015/2016 and 2016/2017 the children were late for school an inordinately high number of times.71
96The mother gave evidence that she had difficulty getting the girls to school for a number of reasons. These included: separation anxiety; bullying; and the mother’s work. The youngest child displayed a great deal of separation anxiety and would complain of tummy aches, cry, cling to her mother and even made herself vomit. This was supported by the evidence and testimony of IB’s teacher Ms. Benakis. Additionally, the middle child and eldest child suffered some bullying at school. This is confirmed by both parents. The mother says that the father did not help her even though she was juggling her full-time employment and getting all three girls ready for school.
97Ms. Benakis had taught all three children at different times, (IB for junior kindergarten, NB in grade 7 & 8 and AB in grade 7). She testified that prior to the separation, the mother attended at the children’s school regularly and she was in and out of the classroom. She said that she remembers the mother participating in craft days and fitness and wellness events at the school. She remembered the mother scheduling a special meeting in early 2017 to discuss a safety plan for NB because she had self-harmed. She said that the father did not participate in this meeting and that she did not see the father at school often.
98The court found the father was inconsistent in his evidence on these issues. He purported to be highly involved and helpful with the children, but at the same time said that it was the “mother’s job” to care for the children and get them to school. He also said that he had to leave early when he was working, (which conflicted somewhat with his statements that he was not able to work because of the pain in his leg). Lastly, he admitted in court that he never actually noticed the high number of late arrivals until the court took notice of it during the trial. The court finds that although the father is to be commended for his ability to support the children’s academics, he only increased his involvement in the children’s schooling after separation and he had no true concerns about the mother.
99The father believes that the children’s best interests will be served if they have regular access with their mother after gradual reintegration therapy has taken place and only if it is in accordance with the children’s wishes. He says that “given the ages of the children, they need to have a voice” and “ultimately a choice for their best interest.”72 The court finds that the father’s plan is basically no plan at all. He wants things to basically remain the same. His plan has little to no chance of success in reunifying the children and their mother. The father himself has admitted that he cannot get the children to attend therapy or access visits with the mother. This shows the court that the father lacks the ability to act as an emotionally healthy parent would in the same situation to ensure the children’s best interests were being met.
100During the testimony of Mr. Hurwitz, he suggested that the parties participate in an intense “retreat” reintegration/reunification program as offered by FB or Family’s Moving Forward (“FMF”). The father made it clear that he would not agree to the FMF because of Mr. Hurwitz’s involvement in the program. The next day, the father advised the court he would consider the FB program, but he needed more information. The court gave the parties time to investigate the FB and FMF programs and to submit initial intakes for both programs to find out if they were approved as appropriate to participate. The court received evidence and submissions from both parties regarding each program.
101The court found that the mother’s plan for the children’s upbringing and for the family to participate in an intense therapy program offered the children the best chance at having healthy relationships with all of their family. The mother gave well informed and well thought out evidence about why she needed an order for the family to participate in a program like that offered by FB. She advised the court that she participated in an intake conference call with Dr. Rand who would arrange the FB program and workshop. The court found that the mother was genuine in her desire to participate and support the children in an intense therapeutic program to help them all heal and move forward. The court preferred most (but not all) of the mother’s evidence and information regarding FB and their workshop/retreat.73
102The court had serious difficulty with endorsing two elements of the FB’s workshop/program. First, the court found that the manner in which the children’s custody would be reversed and then be forced to attend the therapeutic workshop was very intrusive. In this situation, it could cause feelings of betrayal, (and potentially cause the children emotional harm).74 Second, the court was not satisfied with the indefinite custody reversal and the lack of therapeutic support and/or involvement of the favored parent (in this case, the father).75
103In order to eliminate or reduce the first concern, the court decided that the best course of action was to have the entire family and the Society attend court to hear the decision. Although the mother and father may temporarily need the assistance of the Society and/or the police to enforce the custody reversal order for the younger children, this would not be done without the children having been informed about it by the court. The mother would still be empowered to make a decision to participate in FB or FMF or any other therapeutic intervention she deems reasonable and necessary, however, the arrangements for same will have to be made once the younger children’s custody has already been reversed and they have been placed in her care.
104With respect to the second concern, it is the courts view that in this matter, it is in the best interests of the children to promote and support a healthy relationship with BOTH parents and their extended families, not to simply replace the favored parent with the alienated parent, (i.e. the court did not want to just delete the father from the children’s lives and insert the mother). In order to address the second concern, the court has made an order for the father’s participation in therapy and a step-up parenting plan that results in shared parenting if everyone complies.
105After hearing the evidence regarding the FB’s program provided by the mother, the father reversed his position and withdrew his consent for the children to participate in the FB’s program and workshop. The father then proceeded to provide evidence and information regarding the FMF program (which he initially had resisted).76 He argued against the intense FB workshop/program and stated that any reversal of custody would emotionally harm the children. He relied on the testimony of Ms. Francis regarding that last statement, however, he never acknowledged the children had been emotionally harmed with his decisions to withhold access and his alienating behavior. He further expressed helplessness multiple times throughout the trial regarding his inability to get the children to comply with therapy and/or access with their mother.77
106The court found that the father’s inconsistent position and his consent to participate in the FB and/or FMF programs were disingenuous. The order he originally sought was for the children and parents to participate in out-patient therapy (which had already been deemed to be inappropriate by Mr. Theoduloz in the spring of 2019). He suggested that the therapy take place in accordance with the children’s wishes. The father only suggested the FMF program on the last day of the trial in his closing submissions. All through the trial he continued to level seriously negative allegations against the applicant with little to no evidence to support them. He admitted no wrong doing and showed little to no insight into his own alienating behaviour and its effects on the children. In any event, after submitting intakes, FMF did not approve the family as appropriate for their program. The father’s suggestions for FMF and for out-patient therapy are clearly too little, too late.
107As Mr. Hurwitz said during his testimony, the respondent says the right things, however, the respondent does not, “walk the talk.” The father’s actions speak louder than words and show his true intentions. The court finds that the father’s actions lacked empathy, self-control or insight. For example, the father gave evidence the children were “thriving” in his care in the face of evidence of three mental health professionals who described all three children suffering from different degrees of anxiety; fear; confusion; anger; sadness; and parentification. If he acknowledged the children’s anxiety, sadness and fears, the father would only do so to place further blame of the mother (even though she has not seen the children in over a year). He complained that the assessor and the mother’s suggested temporary custody reversal and participation in an intense reunification workshop/program would cause the children emotional harm.
108The court finds that to some varying degree, both of the parties lacked insight in how their behaviours and choices have affected the children (both before and after separation). Although the applicant has apologized and shown remorse for the affair during the marriage, she has minimized the effect of the parental conflict pre-separation and what/how much NB knew or suspected. Both parents admitted that the children could probably hear some parts of their loud arguments in the garage. Both parties admit that during these arguments they may have said derogatory things to each other.78 Additionally, the court finds it very probable that NB saw something (a text message from DL) on the applicant’s cell-phone that made her suspicious, angry and confused about her mother regarding the affair. Although the court does not think that the applicant intended to burden NB with knowledge of the affair, unfortunately, it doesn’t really matter how NB found out about it. What matters is what the parents did or said to NB once she did know and once the separation occurred.
109The father admitted that he felt a lot of fear and insecurity during the separation and in the year leading up to it. There was some evidence presented that supported the applicant’s allegation that the respondent had been using (and possibly abusing) the “Partner Tracker” application without her consent to spy on her and view private messages on her phone.79 Although the court finds that both the parties were participants in the conflict during their marriage, the court agrees with the Assessment that the respondent was “emotionally stuck” and “paralyzed by the trauma of the separation.” Mr. Hurwitz found that the respondent was pre-occupied with “demonizing” the mother as his priority verses “attending the children’s emotional needs.” He further found, and the court agrees that the father has been “fueling the parental conflict and promoting the children refusing to see their mother.”80
110The eldest sibling NB has been permitted by the father to set an example of how to act with the mother since the separation, (showing disrespect, trying to control the visits, ending the visits early, refusing therapy). Dad was weak and ineffectual in the face of NB’s power. He placed her in a hybrid parent/sibling role for the younger girls, and a friend for him. This is not fair to either parent, and it is certainly not in the best interests of any of the children. This is also one of the reasons NB’s contact with the younger children must be temporarily limited. She has been described as taking on a parenting role for the younger children.81 As set out above, Benotto J. said in Fielding, at para. 17, “time has overtaken the custody issue” in this case. NB is now 16 almost 17 years old. Her actions from the time of the separation have “given voice” to her wishes and demonstrated her “capacity for self-determination.” “Custody legislation and jurisprudence concerns children, not young adults.”82 The court therefore finds that it would be in NB’s best interests to be able to have self-determination when it comes to which parent she resides with and her participation in the therapy and/or multi-day workshop/retreat program. What this also means however, is that NB will have to accept the consequences for the choices she makes. If she chooses to continue residing primarily with her father and not participate in the therapeutic program as arranged by her mother, she will temporarily have no contact with her younger siblings except through therapy or supervised access. She will have to participate in the same type of therapy that the father does in order to ensure that she can demonstrate support for the younger children’s relationship with their mother.
111AB and IB have been alienated against their mother. AB’s voice has become an echo of NB and the father. IB has either not used her own voice, or she has not been heard. She has two very confident, protective and loving “big sisters” who express themselves both positively (through singing/theatre and advocating for themselves) and negatively (sharing only negative information/gossip about their mother and about the separation). The eldest sister also shared her impressions about the medication allegation and the mother’s affair with AB and IB. Both AB and IB have been given no room to think for themselves and have their own experiences and make their own decisions. At this point, it seems like it is easier for AB and IB to just give up on their mother. However, that is not what is in their best interests.
112The court is not satisfied with either of the mother or the father’s proposals for the final parenting plan. In the order set out below, the court is attempting to promote the best possible outcome as was set out by Mr. Hurwitz in his recommendations. The best possible outcome for this family is that the children have a healthy relationship with each other and with both parents. Prior to the separation, both parents were acknowledged to be actively involved in parenting the children. They were described as loving, attentive parents. They both had a lot to offer the children. Despite all the time that has passed and the ongoing conflict and litigation, both parents still have good parenting skills and have a lot of love for their children. The court finds that even though the family, as a whole, needs some intense help, it is in the children’s best interests to make an order that supports and promotes both parents having a significant role in the children’s lives. As Mr. Hurwitz said, “both parents need to resume their parenting of these children along with a treatment regiment with mental health professionals experienced in treating alienation.” The children “require a return to a stable normalized life, with assistance from professionals around developing a “new normal” in spite of the parental separation.”83
113The court finds that the best interests of the younger children will be met by primarily residing in their mother’s care on a temporary basis and participating in the reunification therapy/program as chosen by the mother. They will temporarily have no access to their father (and possibly their eldest sister) in order to have the best chance possible of reunifying the family.84 The court order regarding the parenting issues shall be final, in that by August 7, 2020, the parties will share custody of the two younger children on a week about basis. If both parties follow all parts of the order, they may never have to return to court again.
Retroactive and Ongoing Child Support and s. 7 Expenses
114Pursuant to the Child Support Guidelines (“CSG”) and the FLA, both parents have an obligation to support the children. By order of Bennett J. dated June 8, 2018 the mother commenced paying the father child support on June 1, 2018 in the amount of $621.00 per month based on an income of $30,000.00. On consent, by order of Douglas J. on March 18, 2019, the amount was increased to $869.00 based on an estimated income of $45,540.00. The payments are up to date. The applicant asks the court to vary the child support retroactively based upon her income.
115Since both parties’ incomes have been varied from year to year, they advised the court they agreed that they will use the income from the year prior to calculate their ongoing child support obligations from year to year. The court agrees that this would be appropriate commencing in 2021. However, at the time of the trial, the applicant was pregnant. Her baby is due in mid-late January 2020. She advised the court that she intended to take a parental leave but would return to work part-time.
116Where parties consent to an amount that is different than the amount that would be determined in accordance with the CSG, the court must be satisfied that reasonable arrangements have been made for the support of the children to whom the order relates.85 Additionally, where, for the purposes of the CSG any amount is determined on the basis of specified information, the most current information must be used.86 Based on the new parenting arrangements as a result of this decision and the most current information, the court finds it would be unreasonable to use the applicant’s 2019 income for calculating her 2020 obligations. Therefore, the court finds that it would be reasonable to impute an income of $20,000.00 to the applicant for the purposes of calculating her income and ongoing child support obligation in 2020 (which is a little less than half of her income in 2019).
117The respondent’s ability to work and his income has varied from year to year. 87 The only financial statement provided by the respondent says that his income in 2016 was $29,700.00. In 2017, the respondent’s line 150 total income was $73,722.00. Deductions were allowed from his total income, these included $2,879.00 and approximately $29,621.68 in non-taxable WSIB benefits (confirmed by a copy of his 2017 T5007 – WSIB Statement of Benefits). His total taxable income from earnings was $41,222.00.
118In 2018, the respondent’s line 150 total income was $31,078.00, of which $30,068.99 was non-taxable WSIB benefits (confirmed by a copy of his 2018 T5007 - WSIB Statement of Benefits). Pursuant to the CSG this income shall be grossed up to $31,468.00 to account for it being non-taxable income.
119The respondent stated that his sole income for 2019 were the benefits he received from WSIB. He did not provide any proof of his 2019 income. Based on the above, the court finds that the respondent’s income for the purposes of calculating ongoing child support in 2020 shall be imputed to be $32,563.00, (which represents an estimate of his WSIB benefits being $31,000.00 and grossing them up for taxes).
120The applicant’s ability to work and her income has also varied from year to year.88 She is employed by a gym in town on a contract basis to provide fitness classes, training and instruction. In 2017, the applicant’s line 150 total income was $40,874.00. Deductions were allowed from her total income in the amount of $1,766.00 so her total new taxable income was $39,108.00. In that year she was working full-time as a manager in the fitness club until the parties agreed that she would quit. In 2018, the applicant’s total income was $29,173.82 (of which $8,920.89 was employment income; $134.00 was RRSP income; and $20,118.93 was self-employment business income providing fitness classes and instruction on a contract basis). The applicant stated that her income for 2019 would be approximately $48,573.36. Her income for the purposes of calculating retroactive child support for 2018 will be $29,173.82 and for 2019 will be $48,573.36.
121Based upon the above incomes and the three children residing with the respondent for the entire year in 2018, the applicant owed the respondent child support in the amount of $605.00 per month (based on her income of $29,173) totalling $7,260.00. She paid for 7 months at a rate of $621.00 totalling $4,347.00, which means she still owes the respondent $2,913.00. In 2019, the amount the applicant owed the respondent in child support was $950.00 per month (based on her income of $48,573) totalling $11,400.00. She paid 3 months at the rate of $621.00 per month and 9 months at the rate of $896.00 per month totalling $9,927.00. This means she still owes the respondent $1,473.00. The total amount of retroactive support owed by the applicant to the respondent for 2018 and 2019 is $4,386.00.
122As the year 2020 will be a year of transition for both parties and the children, the court finds that a lump sum calculation should be paid for the period from February 1, 2020 to August 1, 2020. Based upon two children residing with the applicant and one child residing with the respondent, there shall be a lump sum of child support payable by the respondent to the applicant in the amount of $2,010.00 ($335.00 per month multiplied by 6 months and using the applicant’s imputed income of $20,000.00 and the respondent’s estimated income of $32,563.00). This amount shall be taken from the respondent’s share of the proceeds held in trust and paid to the applicant.
123Based on the evidence presented in the trial and my order regarding the equal parenting schedule, there shall be an order that, commencing August 7, 2020 and on each 7th of the month thereafter, the respondent shall pay the applicant $136.00 for child support based upon two children residing equally with both the applicant and the respondent and one child residing with the respondent, and based upon the applicant’s 2020 imputed income of approximately $20,000.00 and the respondent’s estimated income of $32,563.00.
124These orders for child support are based on the assumption that the eldest child is likely going to continue to reside with the respondent in accordance with her wishes. If this changes, the ongoing child support should be adjusted accordingly. Child support shall be reviewed and adjusted if there is a material change in circumstances of the parties and the children, and each year on June 1st commencing in 2021 with the parties providing disclosure to each other in accordance with s. 24.1 of the Child Support Guidelines.
Section 7 Expenses – Retroactive and Ongoing
125The respondent claims that the applicant owes him approximately $3,494.75 for her equal share of the children’s retroactive s. 7 expenses since separation. The respondent says that he spent approximately $6,989.50 on the children’s s. 7 expenses from June 2018 to present, ($2,419.00 from June 4, 2018 until December 31, 2018 plus $4,570.75 from January 2019 to May 3, 2019.89 The respondent asks that this amount be paid to him out of the applicant share of the proceeds of the sale of the matrimonial home that are being held in trust.
126The respondent claimed that the applicant owed him for other expenses from the date of separation until June 2018, however, he provided no evidence of same. He attempted to present additional documents during the trial to prove these expenses however, the applicant opposed. The respondent had just served her with them that day, (in the middle of the trial). The respondent asked the courts permission to file them late, however, the court refused to grant same. The respondent provided no reasonable explanation for the lateness of the documents. The court had already permitted the late filing of the respondent’s documents at the beginning of trial, (the documents that had been served as late as November 16, 2019). Lastly, the court had already made numerous other accommodations on many issues throughout the trial.90 It is a principle of fundamental justice that both parties have adequate notice of the evidence that will be presented in the trial so they know the case they must meet. The trial scheduling endorsement of Justice Bennett had set a deadline for service of any documents the parties intended to rely upon at trial. As such, the court ruled that no further late documents would be accepted on this issue and dismissed the respondents claims for contributions to any retroactive sec. 7 expenses for the period of time from separation to June 2018. The arrears calculation would only include the period from June 2018 to present.
127The applicant opposes some of the respondent’s claims for a few different reasons. First, she says that the respondent only provided her proof of the expenses by giving her some receipts by email to her sister on November 16th, 2019, (on the eve of trial, even though she was asking for them for months). Second, some of the respondent’s proof of the 2019 expenses were provided to her in the middle of the trial. Third, she says that the respondent never consulted with her prior to incurring any of these expenses, nor did he give her any notice of same. Last, but not least, she says that some of these expenses are not reasonable or necessary.
128The applicant agrees to the following expenses for 2019: school supplies $231.38; all three children’s skating/swim/CPR $360.84. For 2018: Oxford Learning for NB of $600; Musical Theatre $650 Sept. to Dec, 2018; $108.48 for NB’s uniform; $574.75 dental for three children; New York School Trip $1055.00 for NB; and a Regional Arts fee $150.00. The total of the expenses the applicant consents to share is $3,730.45. The applicant’s equal share would be: $1,865.23.
129In addition to the above, the court finds the following expenses necessary and reasonable for the best interests of the children: Oxford $100.00 assessment for NB; school fees and supplies of $226.00 and $487.37; and $28.00 for a yearbook. These total $841.37 and the applicant’s equal share would be $420.69. Therefore, the total amount owed by the applicant to the respondent for her equal contribution to retroactive s. 7 expenses shall be set at $2,285.92.
130The court dismisses the respondent’s other claims for the applicant to contribute to expenses for summer camp, musical theatre, the Institute of Performing Arts and Bright’s Park. The respondent put the girls in all of these activities without notice to the applicant or obtaining her consent. The court finds these expenses to be unreasonable and unnecessary. The applicant pointed out that they never put the girls in camp when they were together and the respondent isn’t even working. Additionally, the court finds that due to the modest incomes of the parties and the high expense of the musical theatre, Institute of Performing Arts and Bright’s Park, it is unreasonable to expect the applicant to contribute to these expenses, (especially since she received no notice of same and never consented to these activities). The mother says that they already send NB to a performing arts school and she should not need all these extra activities. She says they never spent that kind of money on the children for extra curriculars when they were together.
131In the future, for ongoing s. 7 expenses, the court shall order that both parties shall continue to contribute to same equally for any of the children’s medical or dental expenses; as well as tutoring; swimming; skating; educational school supplies and school trips. For all other expenses, the parties shall only be required to equally share the expense if prior consent or a court order has been obtained. Neither party shall unreasonably withhold consent.
Post-Separation Adjustments
132Sections 4 and 5 are the key property settlement provisions of the FLA. Both parties have already agreed that they have equalized all of their net family property except for the proceeds of the sale of the matrimonial home. The matrimonial home was sold and closed in June 2019. The proceeds of sale are currently being held in trust. Both parties have claimed that they are entitled to a larger share of the proceeds due to some of the joint expenses and costs they paid after separation. They both asked the court to make an order regarding the final division of the proceeds and that the court vary the other’s share. Section 5 (6) of the FLA sets out the factors the court must consider when varying a spouse’s share of their net family property. In this case, the parties claim they are entitled to a larger amount because of the debts and liabilities they incurred for the support of the family and other circumstances relating to the disposition, preservation, maintenance or improvement of property.91
133The applicant claims that the respondent owes her $7,004.38 in post-separation adjustments.92 She asks this amount to be paid to her out of the respondent’s share of the proceeds. This amount includes payment of the cost award in the amount of $4,000.00 ordered by Douglas J. on April 18, 2019 that was to be paid to the applicant out of the respondent’s share of the proceeds of the sale of the matrimonial home.93 It also includes reimbursement for: a Hwy 407 Toll Bill (incurred before separation but paid after); payments she made to Aviva Home Insurance (for reinstating the home insurance); repairs on the matrimonial home; and the divorce.
134She asks that the respondent be ordered to reimburse half the costs of the following:
Repairs on the matrimonial home (Evolving Spaces Invoice 2019/06/17) $1501.77
Drywall Repairs $ 350.00
Divorce Documents $ 537.00
407 $1,517.65
Aviva Home Insurance $2,102.34
Total $6,008.76
The applicant claims the respondent’s share is $3004.38.
135The respondent agrees to reimburse the applicant for her claims regarding the Aviva home insurance adjustment, the divorce and the 407. Although the respondent does not consent to pay half for the home repairs, the court finds that these were valid expenses to maintain the matrimonial home and ensure it was ready so the sale could close. Therefore, the court shall order the respondent to pay the applicant half of the home repairs totalling $3004.38 plus $4,000.00 totalling $7,004.38.
136The respondent claims that the applicant owes him $20,663.45 in post-separation adjustments. The respondent’s claim includes reimbursement for the mortgage payments on the matrimonial home from the time of separation until February 2019, car payments, 407 bill, house insurance, furnace repair and replacement of a doorbell.94 He also seeks an order that this amount be paid to him out of the applicant’s share of the proceeds.
137The respondent requests an order that the applicant reimburse him for half of the following:
Mortgage Payments incl. Taxes $34,878.00
Aviva Home Insurance $ 2,301.75
Lease payments 2011 Cadillac Escalade $ 2,000.00
2011 Cadillac Insurance $ 480.00
407 $ 476.21
Furnace Repair $ 961.72
Doorbell $ 228.81
Total $41,326.49
The respondent claims that the applicant owes him half of the total being $20,663.25.
138The house sale closed June 19, 2019. The applicant disagrees with contributing to maintain the mortgage, taxes and insurance because she was paying the respondent child support and she had to pay rent for when she was forced out of the house. She did not claim occupation rent against Dad because she was living with the father in the same house at the time of separation. She never amended her pleadings. She further disputes the respondent’s claims for reimbursement for half the lease payments and insurance on the 2011 Cadillac. She says that the respondent had the vehicle in his possession, he was driving it, and he refused to return the vehicle to her. Further, apparently, the respondent actually had another vehicle in his possession that he could have used (a pick-up truck). The lease for the Cadillac was actually under the name of a family friend and the respondent had no proof for the payments. Regarding the 407 charges, the applicant claims they were prior to separation on the Cadillac and the respondent provided no proof of this payment.
139The applicant agreed to reimburse the respondent for his claim regarding the furnace repair. Although the applicant does not consent to pay half for the mortgage, taxes and insurance and doorbell, the court finds that these were valid expenses to maintain the matrimonial home until the sale closed. The court does not agree that applicant should be responsible for any of the lease payments, insurance or 407 bills for the Cadillac. Therefore, the court shall order the applicant to pay the respondent half of the matrimonial home mortgage, taxes, insurance, furnace and doorbell repair totalling $19,185.14.
140Both parties advised the court that neither of them has life insurance at this time. They both advised that they didn’t know of any difficulty they might face in qualifying for life insurance or the cost of same. The court finds that it is important that they both have insurance in the amount of at least $100,000.00 while the children are dependents and they name each other as the sole beneficiaries of the policy.
Re: Canada Child Benefit Adjustment
141The Canada Revenue Agency is pursuing the applicant for repayment of an overpayment of the Canada Child Benefit (“CCB”) in the amount of $23,260.60.95 The respondent agrees that there has been a mistake made, but he is unsure of how to correct it. According to both parties, they agreed (with counsel) that the applicant mother would continue receiving the CCB payments and she would just transfer them to the father. This is confirmed in the endorsement of Bennett J. in June 2018. Both parties confirm that the father received $1,465.96 per month in transfers from the mother for the period of July 1, 2018 to April 2019 (totalling $16,125.56).96
142The CRA is unclear as to who was actually supposed to receiving the CCB. The mother filed as separated as of November 2017 however, the parties were still living together with the children. There was no custody order or agreement. The applicant advised the court that the Canada Revenue Agency is pursuing reimbursement of the CCB payments made to her from January 2017 (however the parties were not even separated at that time). She says that the father incorrectly made a claim to the CRA that he was owed CCB from January 2017.
143If in fact the father claimed to CRA that he was owed CCB from January 2017 this is not correct. The parties were still together at that time. The father says that the CRA started to pay him CCB in May 2019 and he receives approximately $1,650.00 per month. He says he also received approximately $7000.00 as a retroactive payment of CCB which he says would include the months December 2017 to June 2018. He says that he only claimed for the months that he received nothing from the mother. He did not claim for months July 2018 until April 2019 because he was receiving her transfers of the CCB that she was receiving.
144The court does not have jurisdiction to correct the CRA’s assessments. As both parties have contributed to the confusion and the overpayments, the court finds that they are equally responsible to correct it. This shall be done by way of a payment out of the proceeds of sale currently being held in trust AFTER both parties have filed any forms and documents required to advise the CRA of corrections needed for the years 2017, 2018 and 2019.
145CRA needs to know the correct facts regarding the residence of the children in order to calculate the party’s entitlements. The court finds that although the parties separated in November 2017, there was no court order or separation agreement. The children did not commence residing with the respondent primarily until mid-late December 2017. The father has to ensure that his CRA claims for 2017, 2018 and 2019 are correct in that his claim for the children does not begin until January 2018, (which is the first full month when the children were in his primary care). The mother has to ensure that her CRA claims for 2017, 2018 and 2019 are correct in that she does not claim the children after December 2017.
146Based on the above and the evidence and submissions during the trial, the court finds that on the issue of post-separation adjustments and costs awards, the applicant owes the respondent $19,185.14 and the respondent owes the applicant $7,004.38. These amounts shall be deducted from the respective parties share of the proceeds of the sale of the matrimonial home that are being held in trust and credited to the appropriate party. Further, the court finds that the amount owed to the CRA shall be both parents’ equal responsibility and shall be paid for out of the proceeds held in trust after the corrections have been assessed for 2017, 2018 and 2019. The amount of $25,000.00 shall be held back and remain in trust until this issue has been cleared up and if there is any amount left in trust after paying the CRA, the parties shall equally share the balance.
Order:
147For all the reasons set out above I make the following final Order:
Final Parenting Order:
The applicant shall immediately have custody of the two younger children being AB born January 11, 2006 and IB born July 28, 2009. The children AB and IB shall reside primarily with the applicant in her care and control for a period of approximately 5 months from the date of this order, until August 7, 2020. The applicant shall make all day to day and major decisions for the children AB and IB regarding their health, education, religion and general welfare.
The applicant and respondent shall have joint custody of the eldest child NB born May 30, 2003 (being almost 17 years old). The child NB shall reside primarily with the applicant and/or the respondent in accordance with her wishes. The parent with whom she resides shall make all day to day and major decisions with respect to her education, religion and general welfare.
The respondent shall arrange delivery of the children’s clothing and other personal belongings to the applicant’s residence within ten days of this Order. He shall not attend her residence personally, he shall make arrangements for delivery through a third party, being the applicant’s sister, JC.
The respondent shall have no access or contact with the two youngest children AB and IB until May 30, 2020 unless there is a further court order or agreement between the parties in writing.
If the eldest child NB chooses to reside primarily with the respondent, she shall have access with her siblings (AB and IB) commencing solely at the discretion of the applicant and/or access within the reintegration therapy context as recommended by the reintegration therapist until May 30, 2020. Additionally, commencing May 30, 2020, NB’s access with AB and IB shall coincide with the respondent’s access commencing May 30, 2020 as set out below.
If the eldest child NB chooses to reside primarily with the applicant, her access with AB and IB will be at the discretion of the applicant and as recommended by the reintegration therapist.
The applicant and all three children shall immediately commence reintegration therapy with any reintegration therapy program as chosen and arranged by the applicant. This program may include a multi-day workshop/retreat. Such therapy may further include additional members of both the parties extended family and/or their co-habiting partners and/or their children. All may participate in the reintegration program as recommended by the therapist or therapy team.
If the eldest child NB refuses to attend and participate in the workshop and therapy as chosen and arranged by the applicant, NB’s access with AB and IB shall continue to be in accordance with the respondent’s access commencing May 30, 2020. Additionally, NB shall commence therapy as chosen and arranged by the respondent to assist her in moving forward and to help her learn to support and improve her and her siblings’ relationship and reunification/reintegration with their mother. The cost of this therapy shall be shared equally by each parent as set out below.
The respondent shall immediately commence therapy to assist him in moving forward and to help him learn how to cooperatively parent and support all three children’s relationship and reunification/reintegration with their mother.
The cost of the above therapies shall be shared equally by the parties as follows:
(a) the sum of $50,000.00 from the proceeds of sale held in trust shall be placed in a separate account in the applicant’s sole name. These monies shall be used solely for the purpose of paying for the applicant and the children’s reintegration therapy and workshops, and any of the recommended joint or after-care programs and therapy for the applicant, and all three children for a period of up to 12 months from the date of this order (as chosen by the applicant). These monies may also be used to pay the applicant’s equal share for the cost of supervised access for the respondent and children and individual therapy for NB (if needed). If at the end of 12 months this amount has not been fully utilized, the account shall be closed and the balance shall be divided between the parties equally. For so long as this account is open, the applicant shall provide the respondent with a copy of the monthly statements and proof of any payments made for the reintegration program and/or therapy.
(b) The sum of $10,000.00 from the proceeds of sale held in trust shall be placed in a separate account in the respondent’s sole name. These monies shall be used solely for the purpose of paying for the respondent’s therapy and to assist the respondent in moving forward and to help him learn how to cooperatively parent and support the children’s relationship with their mother, for a period of up to 12 months from the date of this order (as chosen by the respondent). These monies may also be used to pay the respondent’s equal share for the cost of supervised access for the respondent and children and individual therapy for NB (if needed). If at the end of 12 months this amount has not been fully utilized, the account shall be closed and the balance shall be divided between the parties equally. For so long as this account is open, the respondent shall provide the applicant with a copy of the monthly statements and proof of any payments made for the therapy and/or programs he is participating in and/or completed.
- Commencing May 30, 2020, the respondent shall have access with the youngest children AB and IB as follows:
(a) Saturdays from 10:00 am until 4:00 pm;
(b) Wednesdays from 5:00 pm to 8:00 pm;
(c) All the above access shall be supervised by Brayden Supervision Services Inc., reachable at 1-855-222-7712. Both parents shall immediately submit their completed intakes for this service along with a copy of this order and the trial decision. The cost for the supervision shall be paid for by the applicant and respondent equally.
- Commencing July 3, 2020, the respondent shall have unsupervised access with the youngest children AB and IB as follows:
(a) Alternate weekends from Friday at 5:00 pm until Sunday at 5:00 pm;
(b) Every Wednesday at 5:00 pm until 8:00 pm.
Commencing Friday August 7, 2020, the two youngest children AB and IB shall reside with each parent on a 7-day week about basis with exchanges taking place on Fridays at 5:00 pm. The children shall reside with the father from August 7, 2020 at 5:00 until August 14, 2020 at 5:00 pm and then with the mother from August 14, 2020 at 5:00 pm until August 21, 2020 at 5:00 pm and so on.
Until August 7, 2020, all access exchanges shall take place in the driveway of the applicant’s residence, and/or the children’s schools in accordance with the Parenting Plan (Schedule A, attached to the Order).
Once week about begins the parent who has the children in their care is responsible for transporting the children to the other parent for the start their parenting time in accordance with the Parenting Plan (Schedule A, attached to the Order).
No other individuals, except for the parties and the children, shall be present at the exchanges unless there is prior written consent of the parties.
Commencing Friday August 7, 2020, the applicant and respondent shall consult with each other prior to making any major decisions for the children AB and IB regarding their health, education, religion and general welfare. In the event of a disagreement between the parties after consultation, the applicant shall make the final decision.
The children’s schools shall not be changed without the consent of both parents or by court order.
After July 3, 2020, the parties shall communicate through Our Family Wizard (“OFW”), when necessary, except in emergency circumstances where they will communicate through text. Each party shall be responsible for his and her own OFW costs.
The parties shall follow the Parenting Plan recommendations and Holidays as set out in Schedule “A” commencing August 7, 2020.
A copy of this decision and order shall be provided to the York Region Children’s Aid Society, and to any therapist involved with this family.
The York Region Children’s Aid Society shall facilitate the transfer of the two youngest children AB and IB into the applicant’s care.
Pursuant to s. 141 of the Courts of Justice Act and s. 36(2) of the Children’s Law Reform Act, the Ontario Provincial Police, the local police service (including the York Regional Police) and any other law enforcement agencies have jurisdiction to enforce the provisions of this Order in the Province of Ontario, in the area where the child and/or children is/are located, shall assist as required for enforcing the provisions of this Order and shall specifically take all such action as required to locate, apprehend and deliver the said child and/or children to the applicant, including utilization of the powers of search and entry at any time. This order expires 6 months from the date of this Order.
The respondent shall not contact or communicate directly or indirectly with the following people: the applicant, the youngest children AB and IB except to permit access to the children AB and IB in accordance with the access order dated February 7, 2020. The respondent shall not come within 100 metres of the applicant’s residence and the children’s school, until May 30, 2020. The balance of the restraining order is effective immediately as of (February 7, 2020), and shall remain in effect until July 3, 2020, unless it is renewed by the court.
Both parents shall not speak negatively about the other parent in front of or within earshot of the children. Both parents shall make their best efforts to ensure that no third party (including any one of the children) speaks negatively about the other parent in front of or within earshot of the children.
Neither party shall post anything on the internet about the separation, this trial or about each other. Both parties shall make their best efforts to ensure that the children do not post anything on the internet about the separation, this trial or about the either parent.
The parents and the children shall not surreptitiously make any video or audio recordings of each other without consent.
Any cell phone or electronic device currently in the children’s possession (that were provided to the children by the respondent) shall remain in the respondent’s possession until July 3, 2020.
Final Order re. retroactive and ongoing child support and contribution to s. 7 expenses; and the division of the proceeds held in trust:
There shall be a one time lump sum payment of child support from the respondent to the applicant for 6 months in 2020 (representing the months of February to and including July 2020) totalling $2,010.00. This is calculated by offsetting the amounts owed by each party and contemplating the applicant having primary care of two children and the respondent having primary care of one child.
Commencing August 7, 2020 and each 7th of the month thereafter until further agreement or court order, the respondent shall pay the applicant the sum of $136.00 per month in child support. This amount is not in accordance with the Guidelines because the child NB resides primarily with the respondent and the children AB and IB reside with both parents equally. The applicant’s income for 2020 was imputed to be $20,000.00 and the respondent’s income is estimated to be $32,563.00. The child support amount is calculated by offsetting the amounts owed by each party.
The applicant shall pay the respondent $2,285.92 for her equal contribution to the children’s retroactive s. 7 expenses for 2018 and 2019.
Both parties shall equally contribute to the children’s ongoing s. 7 special or extra-ordinary expenses including any of the children’s medical or dental expenses (that are not covered by either party’s health benefits); as well as tutoring; swimming; skating; educational school supplies and school trips. For all other expenses, the parties shall only be required to equally share the expense if prior consent or a court order has been obtained. Neither party shall unreasonably withhold consent.
The proceeds of sale currently held in trust shall be divided as follows:
(a) Out of the total balance being held in trust, the amount of $50,000.00 shall be transferred to an account solely in the applicant’s name to pay for therapy as set out above.
(b) Out of the total balance being held in trust, the amount of $10,000.00 shall be transferred to an account solely in the respondent’s name to pay for therapy as set out above.
(c) Out of the total balance being held in trust, the amount of $25,000.00 shall be held back and remain in trust in order to pay the Canada Revenue Agency any overpayments of Canada Child Benefit in the years 2017, 2018 and 2019. After the CRA has reassessed both parties for these years the amount owing shall be paid out of the $25,000.00 and any balance remaining in trust shall be divided and shared equally by the parties.
(d) $25,000, out of the respondent’s share, shall be held back to await the costs decision, pursuant to para. 148 of this Decision.
(e) After the above transfers, holdbacks and payments, the balance of the proceeds held in trust shall be divided equally between the party’s subject to the following deductions:
Out of the applicant’s share of the proceeds, the amount of $25,857.06 shall be deducted and paid to the respondent, (calculated by adding $4,386.00 for retroactive child support + $2,285.92 for retroactive s. 7’s + $19,185.14 for post-separation adjustments = $25,857.06).
Out of the respondent’s share of the proceeds, the amount of $9,014.38 shall be deducted and paid to the applicant, (calculated as $2,010.00 for lump sum child support + $7,004.38 for post-separation adjustments = $9,014.38).
Both parties shall file any documents and/or forms required by the CRA to correct the CCB assessments and payments for both parties for the years 2017, 2018 and 2019.
For as long as child support payable, the Payor (and Recipient if applicable) must provide disclosure to the other party each year on the first of June beginning on June 1st, 2021, in accordance with s. 24.1 of the Child Support Guidelines.
148Pursuant to r. 24 of the Family Law Rules, O. Reg. 114/99, the applicant is entitled to costs of this matter. If the parties cannot agree on costs, I will receive written submissions commencing with the applicant mother serving and filing her submissions on or by February 21, 2020, followed by the respondent father serving and filing his submissions on or by February 28, 2020, then the applicant mother’s reply submissions, if any, served and filed on or by March 4, 2020. Cost submissions shall be no more than 3 pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submission shall be delivered via email at: barriejudsec@ontario.ca. If no submissions are received by March 4, 2020, the issue of costs will be deemed to have been settled between the parties.
Jain J.
Released: February 7, 2020
Also see Exhibit 47 – Report notes of Jennifer Morrison (Family Service Worker) wherein she stated on May 30, 2018 that the conflict continued regarding mom’s access and the “girls stories about their mother are getting worse since they haven’t seen her. The girls all show strong evidence of being coached by [the eldest child,] and potentially dad.”
Also see Exhibit 49 – pages 85-86 wherein Mr. Hurwitz summarizes the children’s views and preferences and gives context regarding them.
Footnotes
- Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30.
- Child Support Guidelines, O. Reg. 391/97 ; Family Law Act, R.S.O. 1990, c. F.3.
- Exhibits 4, 5 are pictures of the children and mother pre- and post- separation. Exhibits 6 and 7 are notes and text messages from the children. All these pictures, notes and texts show that the children and mother had a very close and loving relationship prior to the separation and for a short time after separation.
- Respondent’s testimony and opening statement.
- Applicant and Respondent’s testimony.
- Exhibit 54 - picture of the applicant wearing a bikini with a caption: “Eat clean, train hard” (the picture shows the applicant as slim and lean - which the court finds would not be uncommon for a person who works in the fitness industry); Exhibit 73 – pictures of muscular women downloaded from the internet with the caption “Women on steroids;” Exhibit 101 – Internet article entitled “Side Effects of Steroids in Women”; Exhibit 37 - pictures of various Advil and Tylenol bottles; Exhibit 49 - page 78 of the Assessment addresses and dismisses the respondent’s concerns about steroids.
- Family Law Rules, O. Reg. 114/99, under Courts of Justice Act, R.S.O. 1990, c. C.43.
- Di Serio v. Di Serio, 27 R.F.L. (5th) 38 (Ont. S.C.J.), at para. 19.
- The father’s current girlfriend (“ML”) testified that her ex-husband (“HH”) was using steroids prior to ML and HH’s separation. She went on to say that at some point prior to their separation she had seen a text on his phone from the mother’s boyfriend (“DL”) regarding steroids (DL later became the mother’s boyfriend); Testimony of Ms. Luisa Dante, a previous neighbor of the parties (who works as a surgical nurse), said that a previous patient of hers who remained un-identified) had told her that DL was using and selling steroids. Ms. Dante had never socialized with the parties, and they were not friends.
- Testimony of both parties and testimony of the family doctor Dr. Russell and Mr. Jason Fremlin (Certified Nutritionist and Live Blood Microscopist).
- Exhibit 1 – Report of Jason Fremlin.
- Exhibit 23 – Journal entry from the eldest child dated July 17, 2017; Exhibit 24 – Letter from the eldest child to a friend dated July 5, 2017; Exhibit 21 – CAS report file; Exhibit 47 – Report notes of Jennifer Morrison (Family Service Worker – with the Society) .
- Exhibit 2 – Discharge Report from SickKids Hospital dated May 17, 2017.
- Exhibits 21 and 47 and the testimony of Family Service Worker Jennifer Morrison.
- Exhibit 49 – Assessment of H. Hurwitz.
- Testimony of Corrina Rock and Exhibit 46 – Report Notes of Corrina Rock.
- Exhibit 33 – Doctor Russell’s note dated November 27, 2017 regarding the diagnosis of Mono; Exhibit 34 – Emergency medical records of the middle child dated January 4, 2018;
- Exhibit 16 – Report from Southlake Regional Centre dated January 5, 2018
- Exhibit 36 – Letter from respondent’s lawyer dated January 9, 2018 demanding the mother advise the father “where she plans on bringing the children the day before each visit.” It further stated that the father would “decide if the activity and location is acceptable.”
- Testimony of the respondent and his girlfriend ML (who was the ex-wife of the applicant’s basement tenant HH).
- CLRA, s. 30, supra note 1.
- Exhibits 48 and 49 – Mr. Hurwitz’s CV and Assessment
- Exhibit 49, page 2-3.
- Exhibit 49.
- Exhibit 49, page 4
- Exhibit 49, page 31
- Exhibit 49, page 31 and page 18
- Exhibit 49, page 25. Also see page 23-24 where Mr. Hurwitz describes a painfully clear example of how the two elder children were behaving in a “pact like” manner to show how negatively they viewed their mother.
- Exhibit 49, pages 22-24
- Exhibit 49, pages 81-83
- Exhibit 49, page 83
- Exhibit 49, page 83
- Exhibit 49, page 84
- Exhibit 49, page 10
- Respondent’s opening statement
- Fielding v. Fielding, 39 R.F.L. (7th) 59, aff’d 2015 ONCA 901, 70 R.F.L. (7th) 253.
- Exhibit 49, page 60
- Exhibit 49, page 60
- Exhibit 49 – Mr. Hurwitz’s report page 60 and Exhibit 99 – Letters from Ms. McDonald and Mr. McDonald
- Exhibit 49 – page 87
- Testimony of the father.
- Exhibit 49 – page 64-65
- Exhibit 49 – Mr. Hurwitz’s report and notes, page 27-28.
- Fielding v. Fielding, 70 R.F.L. (7th) 253.
- Exhibit 45 – Letter from applicant’s counsel dated September 4, 2018 temporarily suspending the applicant’s access to children.
- Exhibit 13, page 1 – Email from Ms. Shely Polak dated Thursday November 22, 2018 confirming that the therapy could not proceed because the father had not submitted the completed intake forms. The email further confirms that Ms. Polak had to accept other new cases because of the father’s delay.
- Evidence of the police officer D.C. Brown who testified that this was not a serious breach.
- Exhibit 51.
- Exhibit 13 - Letter from applicant’s counsel dated September 4, 2018 temporarily suspending access
- Exhibits 97 – Email from R. Theoduloz to Respondent dated June 10, 2019, and Exhibit 98 – Notes and Records of R. Theoduloz
- Exhibit 98 – Notes and Records of Mr. Theoduloz
- Exhibit 97 – Email from R. Theoduloz dated June 10, 2017
- Exhibit 98 – Notes and Records of Mr. Theoduloz. It is important to note that according to Mr. Theoduloz and his notes, the father said that Mom was abusing the kids every day and that he didn’t agree with Assessor Mr. Hurwitz and disagreed with the assessment entirely.
- Family Law Rules, supra note 7, at s. 20.2.
- Exhibits 79 and 80
- Testimony of Ms. Francis (children’s therapist).
- Testimony of Dr. Russell and Exhibit 46- Notes of Intake and Assessment Worker Corrina Rock.
- Exhibit 47 – Report notes of Jennifer Morrison (Family Service Worker), and Testimony of Jennifer Morrison and Corrina Rock.
- Fielding v. Fielding, at para. 17, supra note 45; See also L. (N.) v. M. (R.R.), 76 R.F.L. (7th) 428, where Perkins J. speaks to the autonomy of a 15-year-old child.
- Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C), at para. 49(5).
- Children’s Law Reform Act, supra note 1.
- Exhibit 49 Assessment and notes of Mr. Hurwitz pages 31-52 wherein during interviews, the eldest child did most of the talking and answered for all of the girls. The middle child looked up to the eldest for approval especially when speaking negatively to or about the mother. The youngest child hardly spoke at all.
- Exhibit 49 – pages 31-52 where the eldest, NB, stated that she wanted to reside with her father and didn’t want to see her mother or participate in therapy. The middle child AB said she wanted to live with her father. The youngest child IB said that Dad told them “Mom doesn’t love us anymore” and that NB told her what happened. She said she didn’t want to see her mother anymore.
- Exhibit 49, page 45, and pages 85-86
- Exhibit 49 page 86
- Exhibit 49, page 45, and pages 85-86
- M. (A.) v. H. (C.), 32 R.F.L. (8th) 1, at para. 27.
- Exhibit 49
- Exhibit 49, page 45
- Exhibit 7, 8, 9 and 66.
- Exhibits 69 and 87 - Report cards of the children from junior kindergarten to present. The children were late arriving at school between 35-75 times in a school year.
- Respondent’s closing statement
- Exhibit’s 104 (a) through to (h) which included an Overview and Information regarding Family Bridges and their workshop, Factsheet, and Information on outcomes, and sample orders and costs for Family Bridges.
- The children are supposed to be kept completely in the dark and brought to court with no knowledge of why or what is happening to them. The custody reversal takes place at court when the children are taken away by strangers to an undisclosed location to participate in the workshop with the alienated parent.
- FB did not involve the favored parent in the intense workshop at all, whereas FMF did.
- Exhibits 105 Families Moving Forward Information and Intake
- This was further confirmed in the Assessment
- Testimony of both parties and of Barbara Browne (she was the mother’s therapist and she said she listened to a recording of one of the parties’ arguments and that the father called the mother a “Ho”). The father never denied using derogatory language or calling the mother a “Ho,” however, he did deny ever saying that in front of the children.
- Exhibit 21 CAS report file and Exhibits 46 and 47.
- Exhibit 49, Page 83.
- Testimony of both the assessor H. Hurwitz and the children’s therapist R. Francis.
- Fielding v. Fielding, supra note 45at para. 17.
- Exhibit 49 – page 88.
- Exhibit 49 – pages 87-96 sets out Mr. Hurwitz’s clinical summary and his full recommendations for the parenting plan. This included strong sanctions for non-compliance with the treatment plan so that if the children continued not to have regular contact with their mother, a reversal or transfer of custody to the mother may be required. The reversal of custody would be temporary so that in order to return to an equal parenting plan, the father would have to change his negative behaviors and demonstrate an ability to support the children’s relationship with their mother. Mr. Hurwitz further said that any contact between the children and their father during the reversal of custody would need to be monitored or supervised temporarily to ensure there is an absence of parental alienating behaviors. Lastly, he recommended that a treatment program such as Families Moving Forward or Family Bridges provide therapy and that the court closely monitor the family.
- Family Law Act, R.S.O. 1990, c. F.3, sec. 37 (2.5 and (2.6); Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), sec. 15.1 (7) and (8)
- Child Support Guidelines, O. Reg. 391/97: under Family Law Act, R.S.O. 1990, c. F.3, s. 2.
- Exhibit 96 – Respondent’s 2017 Notice of Assessment; and Exhibit 100 – Respondent’s Financial Statement dated November 6, 2018 and Notices of Assessment for 2015, 2017 and 2018; and Exhibit 22 – Letter from Dr. Di Nardo dated February 1, 2019 which says that the respondent is “Unable to perform duties of previous occupation. Poor prognosis to return to previous occupation.”
- Exhibit 17 – Financial Statement of the applicant dated August 16, 2019 with her Income Tax Return for 2016 and her Notices of Assessment for 2017, 2018; and Exhibit 74 – Applicant’s Financial Statement dated April 15, 2019; and Exhibit 106 – Applicant’s 2018 Income Tax Return
- Exhibits 102 and 103
- Court was adjourned early on more than one occasion to accommodate the respondent’s needs (specifically to arrange for pick-up of the children from school, and for him to take the eldest child to an audition in New York). There was significant time given to the respondent so that he could organize his witnesses. The court allowed the respondent to file some documents that had been served as late as November 16, 2019 (on the eve of trial). The respondent had numerous questions for the court throughout the trial. There was significant time given by the court to give neutral guidance to the parties regarding process and procedure. There was an accommodation made for the applicant’s medical appointment. There was an accommodation made for both parties to gather and present evidence and late served documents from their choice of reintegration therapy program.
- FLA, s. 5 (6) (f) and (h).
- Exhibit 83 – Applicant’s invoices regarding post-separation adjustments.
- Order of Douglas J. April 18, 2019
- Exhibit 107 – Respondent’s proof of post-separation adjustments.
- Exhibit 10 – Letter from CRA June 28, 2019 with 3 pages of payment statements
- Exhibit 11 – Proof of payment/transfer of CTB payments from the applicant to the respondent