COURT FILE NO.: FS-19-96092-000

DATE: 2020 12 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANTONELLA IARROBINO

Applicant

Philip Viater, for the Applicant

• and -

ORAZIO VALENTE

Respondent

Brian Ludmer, for the Respondent

HEARD: November 26, 2020 by videoconference

REASONS FOR JUDGMENT

Fowler Byrne J.

1This a high conflict matter which, at this time, is inordinately focused on parenting issues as between the Applicant Mother Antonella Iarrobino (“the Mother”) and the Respondent Father Orazio Valente (“the Father”).

2At the centre of this current dispute are the two children of the marriage: a son, Laviero Valente, born in 2006 (“Laviero”), who is now 14 years old, and a daughter, Sofia Valente, born in 2010 (“Sofia”), who is now ten years old (collectively, “the Children”).

3There has been a break down in the relationship between the Children and the Father. Laviero has not seen his Father since the matrimonial home was sold in July 2019. The Father’s relationship with Sofia is a bit better. There was regular daytime access once a week for a period of approximately 7 months, and even one overnight visit, but that has since broken down.

Present Motion

4I was appointed as case management judge on November 2, 2020. This the first argued motion before me, since my appointment.

5The Father has brought this motion seeking the following extensive relief:

Compliance:

a) A finding that the Mother is in breach of subparagraphs 69(1), (6) and (7) of the endorsement of Dennison J. dated August 21, 2020 (hereinafter the "Order");

b) An order that the Mother shall hereafter strictly comply with subparagraphs 69(1), (6) and (7) of the Order, particularly as it relates to the parenting time schedule and her obligations to deliver the children into the Respondent's care;

Make Up Time

c) An order for immediate and complete double make-up time, two days for each past and further day of parenting time denial, and for all denials of parenting time since August 23, 2020 including: (i) August 23, 2020; (ii) September 6, 2020; (iii) September 13, 2020; (iv) September 20, 2020; (v) September 27, 2020; (vi) October 3 - 4, 2020; (vii) October 17-18, 2020, and (viii) for any further non-compliance with the Father's parenting time to and including the date of the hearing of this Motion in accordance with the terms of the Order and that the dates for such make-up time be determined and designated by the Father;

Orders for Therapy

d) A variation of the Order by deleting reference to the necessity of concurrent therapeutic services in support of the Father's parenting time and to clarify that the provision of any therapeutic services is not a pre-condition to the obligations of the Mother to ensure that the parenting time between the Father and the children takes place;

e) An order that the Children re-engage with Dr. Howard Irving and Ms. Merill Barber for family counselling not requiring contact at the time of transitions or during the Father's parenting time, the cost of which shall be paid by the Mother;

f) An order that the Mother seek individual counselling/therapy with a view to improving her parenting skills with a view to supporting the Children's relationship with the Father and fostering compliance with all applicable court orders with Shazeeda Haroun or such other therapist with demonstrable training and experience in related matters to be selected by Dr. Howard Irving;

g) an order that the Mother’s individual therapy as aforesaid shall be at her sole expense and that such therapist shall fully report to Dr. Howard Irving and shall be authorized and directed to provide all requested information to, and engage with, Marcie Goldhar, the parties' Section 30 Assessor;

Order for Parental Covenants in Support of Parenting Plan

h) An order that the Mother shall exercise all required guidance, boundaries, incentives and consequences in her parenting of the Children, on an escalating and cumulative basis, to ensure compliance with the terms of the court orders concerning parenting time;

i) An order that the Mother shall not accept or acquiesce to any assertion by the Children that they do not, or will not, comply with the terms of the court orders pertaining to the family;

j) An order that the Mother shall exercise her parental authority to ensure polite and compliant behaviour on the part of the Children towards the Father and polite and compliant behaviour pursuant to all applicable court orders at all times, including orders as to parenting time;

k) An order that neither parent shall make derogatory remarks about the other parent or their spouse/partner or extended families to the children or within earshot of the Children, nor will either party discuss the litigation herein with the Children.

l) an order that neither parent shall permit, and instead the parents shall intervene to prevent, any derogatory or undermining communications about the other parent or their partner or extended families to, or in the presence of the Children, by their friends, family members or others;

m) for greater certainty, each parent shall refrain from speaking ill of the other parent, their respective partners, their families and their friends in the presence of, or within hearing distance by, the Children, at all times and that the parents shall not share or discuss with the Children inter-parental communications or disputes, nor shall they permit anyone else (other than a therapist) to do so;

n) An order that each parent shall communicate to, and foster in, the Children a concept of the other parent as: (i) safe; (ii) loving; (iii) available; (iv) that each parent can make a substantial contribution to the upbringing of the children; (v) that each parent is supportive of the children's relationship with both parents; and (vi) that each parent is fully supportive of the terms of the Court-Ordered parenting arrangements from time to time as being in the best interests of the children;

o) An order that the parents shall not permit, and shall actively disabuse the Children of, the following false narratives:

1. That the Father is and/or has been or will be abusive;

2. That the Father doesn't care about the Children;

3. That the Father has not been a present parent in the Children's lives;

4. That the Father was hardly around;

5. That the Father never celebrated with the Children, birthdays, holidays or other special occasions;

6. That the Father never bought the children gifts;

7. That the Children are unsafe in the Father's care;

8. That the Father lies;

9. That the Children never had any positive moments with the Father;

10. That the Father has a temper (i.e. frequently yells without justification or disproportionately to the issue);

11. That the Father blames the Children for the current state of their relationship with him;

12. That the Father is unwilling to communicate with Laviero, specifically as it relates to the proposed Zoom call; and

13. That the Father is bullying and attempting to control the Mother and the Children by seeking enforcement of court order(s).

p) An order that neither party shall discuss with the children, or with another party in the presence of the children, present or past legal proceedings, or issues between the parties related to present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the Children, or regarding conflicts between the parties relating to parenting issues;

q) An order that the Children shall not be used as conduits for inter-parental communications;

r) An order that neither parent will, or permit their friends and family to, or suggest, encourage, acquiesce in or permit the Children to, video and/or audio record the other party during access or transitions; and

s) Costs on a full recovery basis.

6The parties have filed over 2000 pages of affidavit evidence and exhibits in support of their positions. As is all too common, the parties’ explanation for the breakdown of the relationship between the Father and the Children is diametrically opposed. The Mother maintains that the Father has spoiled his relationship with the Children as the result of his own abusive behaviour. The Father maintains it is because of the Mother’s campaign of alienation. The matter has been escalated by the intervening pandemic which has impacted and delayed therapeutic intervention.

7On an interim motion, I am not in a position to either accept or reject competing affidavit evidence. Where possible, I will focus my review on the uncontradicted evidence of the parties and evidence from the third party professionals that have been retained to assist.

Background

8By all accounts, both the Mother and the Father are educated and intelligent individuals with good earning capacity. They both profess to have the children’s best interests at heart. This intelligence has not carried over to their parenting.

9The parties were married on September 14, 2002. There was a six month separation in 2012 when the Father moved out of the matrimonial home. The parties separated for a final time on September 1, 2018. Although separated, they both continued to reside in the matrimonial home with the Children until it was sold on June 28, 2019.

10When the matrimonial home was sold, the Children resided with the Mother, which the Father stated was a unilateral decision on the part of the Mother. According to the Mother, since that time, the Children have refused to spend significant, if any, time with the Father.

11Early correspondence between the parties’ former counsel reflect the existence of a fractured relationship between the Father and the Children. As early as July 2019, the Mother maintained that the children did not want a set access schedule to the Father and that they wished to make those decisions themselves. Unfortunately, this narrative was escalated when the Mother’s counsel sent a letter to each of the Children’s schools in September 2019 advising the respective principals that the Mother had de facto primary care of the children and neither of them wanted to see the Father.

12This Application was commenced by the Mother in September 2019. The parties appeared to start on the right track. In October 2019, they jointly retained Dr. Helen Radovanovic, a registered psychologist, for “closed” family counselling sessions. With the assistance of Dr. Radovanovic and counsel, the parties were able to negotiate an Interim Partial Separation Agreement, dated December 20, 2019 (“Interim Separation Agreement”). The pertinent parts of the Interim Separation Agreement are as follows:

1.6 The parties agree that it is in the children’s best interests to have meaningful parenting time with both parents. By entering into this Agreement, the parties each demonstrate their commitment to reinstating and increasing Orazio’s parenting time with the children.

3.1 Commencing on December 24, 2019, and on a temporary, strictly without prejudice basis, the children will reside with Antonella and will have parenting time with Orazio as follows:

(a) on December 24, 2019, from 11:00 a.m. to 3:00 p.m., and

(b) every Sunday from 11:00 a.m. to 3:00 p.m..

3.4 The parties acknowledge and agree that it is in the children’s best interests to have increased parenting time with Orazio over and above the parenting schedule set out in paragraph 3.1 above.

3.5 The parties are each committed to working with Dr. Radovanovic to make any amendments to the parenting schedule as may be necessary to meet the individual needs of the children.

13The Interim Separation Agreement also included language to the effect that the parties would promote parenting time between the Children and Orazio in a positive manner, putting the best interest of the children at the forefront. The language of the Interim Separation Agreement also reflects a concern that prior access between the Children and Orazio was difficult. In fact, in paragraph 3.2 (c), it states:

The parties acknowledge that the children may be resistant to being in Orazio’s care. The parties acknowledge and agree that the children’s refusal to be in Orazio’s care will not be construed as a breach of this Agreement by Antonella.

14Unfortunately, the Children did not visit with the Father on Christmas Eve, nor for the next eight weeks. The Father would arrive at the Mother’s home to collect the Children, but they would refuse to go. To further complicate matters, Dr. Radovanovic resigned and recommended “open” family reintegration.

15In order to continue working with the Children, the parties agreed to retain Dr. Howard Irving (Ph.D.), specialist in family mediation and counselling services, and his colleague Ms. Merill Barber, MSW, RSW. Dr. Irving concentrated on Laviero and Ms. Barber concentrated on Sofia. The parties agreed that Dr. Irving was also to provide family therapy, and would be able to provide evidence to the court if necessary, regarding parenting. Dr. Irving and Ms. Barber started working with the family in February 2020.

16The first case conference took place before Conlan J. on February 13, 2020. Although access with the Father had not commenced as anticipated, the parties once again were able to agree to an order regarding ongoing access by the Father. Again, on a strictly without prejudice basis, and subject to any changes to which they may agree are in the best interests of the Children and in consultation with Dr. Irving, the Children were to have parenting time with the Father each Sunday from 10:00 a.m. to 2:00 p.m. Dr. Irving was to continue family therapy and Ms. Marcie Goldhar was appointed to conduct a custody and access assessment pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

17Despite this Order, the Children did not start spending time with the Father. Fortunately, with the assistance of Ms. Barber, Sofia started spending parenting time with the Father every Sunday as of the beginning of March 2020. Laviero has never attended these visits, despite the order of Conlan J. and the efforts of Dr. Irving. Dr. Irving and Ms. Barber continued their efforts but stopped all family therapy as of May 2020 because they felt they were not making any progress.

18In the meantime, Ms. Goldhar started with her assessment. Unfortunately, it was delayed by the COVID-19 pandemic and has not yet been completed. For obvious reasons, in-person meetings with the Children could not proceed.

19In order to assist Ms. Goldhar, on June 7, 2020, Dr. Irving and Ms. Barber jointly wrote a brief report to her on their progress to date. The relevant parts of their report are:

We feel for the most part Orizio has acted as a responsible parent. He clearly loves Sophia and wants to be part of her life. Because this is a high conflict situation, we realize that Sophia is caught in a loyalty bind. It is extremely hard for her to say anything positive to her family about visits with her father.

“Children feel more secure and better about themselves knowing both parents want them and want to be involved in their lives.” Clearly, Orizio and Sophia only having four hours a week with no overnights is not going to provide the kind of relationship that would be helpful to Sophia and Orizio.

We recommend overnight visits for Sophia to be with Orizio.

We hope this helps you in making your decision regarding the overnight access.

20No recommendations were made with respect to Laviero.

21Following the receipt of this letter, the Father tried to negotiate expanded access with Sofia to include overnights. The Mother wanted to wait for the s. 30 assessment to be completed. The Father became impatient. While other parts of the s. 30 assessment were ongoing, there were no in-person meetings between Ms. Goldhar and the Children, except for one brief outdoor visit with the Father and Sofia in August 2020. Accordingly, and despite the agreement that no further steps in the litigation would take place pending the s. 30 assessment, the Father brought a motion returnable on August 18, 2020, seeking to increase his parenting time.

22Ms. Goldhar did provide an interim report on August 10, 2020 which was provided to the court by the Mother in advance of the August 18, 2020 motion. The relevant parts of this report are as follows:

The family therapists, Dr. Howard Irving and Ms. Merrill Barber have reported that the children, Antonella, her parents and her brother are extremely close and have a lot of anger towards Mr. Valente. Dr. Irving also stated that Laviero is adamant about not seeing his father. In a session with Dr. Irving, Laviero stated that his father took all the furniture from the house and that his father is not paying his mother what he is supposed to be paying. It appears by these examples that Laviero is privy to much of the parental conflict.

Dr. Irving and Ms. Barber report for the most part Mr. Valente has acted as a responsible parent, he clearly loves Sofia and wants to be part of her life. Because this is a high conflict situation, the therapists feel that Sofia is caught in a loyalty bind. It is extremely hard for her to say anything positive to her family about visits with her father. Clearly by having only four hours a week and no overnights, Mr. Valente and Sofia will struggle to develop a relationship that would be helpful to Sofia and Mr. Valente. On June 24, 2020, Ms. Barber sent an email to Mr. Valente stating “until the access is normalized and you are able to see your children more frequently, there isn’t much more I can do in the therapeutic process”.

Ms. Iarrobino has repeatedly stated that if the children want more time, she will support them, however, it is my assessment that Ms. Iarrobino will not encourage or facilitate more time because her children do not want it and she takes direction from her children. My concern, however, is that the decision to see a parent is not made by children. It is imperative that both parents support the children to have a healthy relationship with both their mother and their father.

Ms. Iarrobino has also expressed that she does not feel her children are safe in Mr. Valente’s care. Both Ms. Iarrobino and Mr. Valente completed psychological testing with Dr. Daniel Fitzgerald. According to Dr. Fitzgerald’s report, an analysis of the results does not reveal any tendencies, behaviours or belief systems that would suggest an elevated risk for Mr. Valente to cause harm to a child. Mr. Valente may have tended to be more authoritarian than authoritative in his parenting approach.

It is evident that Mr. Valente requires assistance with his relationship with both Sofia and Laviero and needs to work on relationship building skills. This can only be achieved by having time with his children. It is also evident that Mr. Valente is extremely frustrated and angered by the limited time he has with Sofia and that he has no time with his son. Mr. Valente needs to work on his level of frustration and has difficulty compartmentalizing his frustration. It would be helpful if Mr. Valente could continue to work with Dr. Irving on his frustration tolerance.

It is not uncommon for service-based recommendations to be made during an assessment in an effort to inform the process to ensure final recommendations can be made. To this end, I am recommending that Mr. Valente and both of his children engage in therapeutic contact. This is not supervised access nor formal reconciliation therapy, rather the focus provides a road map for developing interventions to help parents improve their parenting skills and their relationships with their children. Therapeutic contact is a valuable resource to educate parents and help them to better know and respond to the needs of their children. This approach will enhance parental capacity by supporting and strengthening skill and knowledge in areas such as sensitive parenting and positive parenting practices. This includes working with both parents to ensure that they are both working towards a healthy relationship with the children.

The purpose of this recommendation is for therapeutic contact to inform the process in a safe manner, allowing for contact between Mr. Valente and both of his children to take place in a coaching and supported manner by a professional, following a period of no contact between Laviero and Mr. Valente. There is a cost associated with therapeutic contact services and this cost should be shared equally between the parents.

Brayden and Bartimaeus were contacted as they also provide therapeutic contact services, however, due to Covid-19 these agencies are currently closed and may not be resuming services until the Fall. I am recommending the service begin immediately and not wait for Fall 2020. It is my recommendation that the family retain Mr. Ricardo Theoduloz as he is available to provide in person services which would occur at Mr. Valente’s residence on Sundays. Access should be increased from 4 hours to 9 hours on Sundays between the hours of 10am and 7pm, allowing Mr. Valente to share two meals a day, (lunch and dinner) with his children with the goal of increasing access to include overnights.

I hope this is helpful to counsel and the parents in understanding the intent of the recommendations.

23At the hearing of the motion, Dennison J. agreed that an interim variation was appropriate given the delay brought on by the pandemic. In her endorsement, Dennison J. stated, inter alia:

37I recognize that in increasing parenting time with Laviero there is a risk that he still will not attend. A parent who has a positive obligation to ensure that a child spends parenting time with the other parent should not ask the child if they want to go. The primary parent must take “all reasonable steps” to ensure that access takes place pursuant to the court order: Godard v. Godard, 2015 ONCA 568, at paras. 28, 30-33. Michener v. Carter, 2018 ONSC 2780, at para. 32. That being said, I recognize that the applicant is not required to use physical force to make the child attend, particularly when dealing with a teenager: Supple v. Cashman, 2014 ONSC 3582, at para. 37. It is my hope that if Laviero is aware a therapist will be present he may take that initial step and commence parenting time with his father. I also expect that the applicant will do more than simply encourage Laviero to attend to see his father.

38In addition to the increased parenting time for both children, I find that it is in Sofia’s best interests that she commence overnight visits as of October 1, 2020, provided that Mr. Valente has engaged a therapist as recommended by Ms. Goldhar.

24Following these reasons, Dennison J. made the following parenting orders:

1. On a temporary and without prejudice basis, subject to any further court orders or changes that the parties may agree are in the children’s best interests and in consultation with Dr. Howard Irving and/or Ms. Merill Barber and/or Ms. Goldhar, the children, Laviero and Sofia shall have expanded parenting time with the respondent provided that Mr. Theoduloz or another similar therapist is engaged as recommended by Ms. Goldhar as follows:

a. Every Sunday from 10:00 a.m. 7:00 p.m.

2. The visit this Sunday August 23, 2020 does not require the presence of the therapist given that this decision is being released on August 21, 2020.

3. The parties may agree to use a different therapist. If however the parties do not use Mr. Theoduloz and cannot agree on another therapist, the parties are to see a recommendation from Ms. Goldhar and that parties shall use that therapist.

4. The cost of the therapist will be split 50/50.

5. The use of the therapist will continue until agreed to by the parties or further court order. Both parties shall give careful consideration to the recommendations provided by the therapist regarding whether their services are still necessary.

6. On a temporary and without prejudice basis, subject to any further court orders or changes that the parties may agree are in the children’s best interests and in consultation with Dr. Howard Irving and/or Ms. Merill Barber and/or Ms. Goldhar, Sofia shall have expanded parenting time with the respondent commencing October 1, 2020 as follows:

a. Saturday at 10:00 a.m. until Sunday at 7:00 p.m.

7. The applicant shall be responsible for delivering the children to the respondent’s care at the start of his parenting time and for picking up the children at the end of the respondent’s parenting time.

8. The respondent is to continue counseling with Dr. Irving.

25Sofia continued her weekly visits with her Father, which were extended. Despite the Dennison Order, Laviero still refused to see the Father. The Father’s frustration heightened.

26A further case conference took place before Justice Barnes on Sept. 16, 2020 where the issue of access was addressed. Unfortunately, no resolution was reached. Barnes J. saw the need for a compliance motion to be scheduled as soon as possible, prior to Oct. 20, 2020. In his endorsement he stated:

2I expressed to all parties the potential for changes to custodial arrangements should the court conclude that there is a pattern of deliberate and chronic non-compliance with court orders. I am satisfied the psychological impacts on the parties including their two children has created an urgency.

27In a letter to Ms. Goldhar dated Sept 20, 2020, Mr. Theoduluz reported on his involvement with the family to date. The relevant parts of this report are as follows:

Therapeutic contact aims to provide interventions to help parents improve their parenting skills and improve their relationship with their children through coaching and intervention . The support and intervention is targeted to all members of the family with frequency and intensity varying depending on the situation and the family members.

In my intake meeting with Mr. Valente he expressed his concern that previous clinicians had failed to assess his situation appropriately as one of the parental alienation. Mr. Valente questioned the utility of the support provided to him and his family to date and stated that he had spent a considerable sum of money over the past year with little to show for it. Mr. Valente shared that he could to understand why Ms. Iarrobino could not comply with the existing court order and ensure that both children, Sofia and Laviero, attended visits with him. Mr. Valente shared that he was not aware of any valid reasons as to why Valerio [sic] was refusing to se him or speak with him. Mr. Valente advised that whatever reasons for Valerio’s [sic] ongoing refusal he welcomed the opportunity to have Valerio [sic] address his concerns with him.

In my intake meeting with Ms. Iarrobino, she shared that during the course of their marriage Mr. Valente would yell at her and the children frequently. Ms. Iarrobino shared that Sofia remains hesitant to see Mr. Valente and Ms. Iarrobino advised that Sofia is too afraid to address any concerns directly with Mr. Valente. Ms. Iarrobino shared that Mr. Valente had never taken the time to form a relationship with the children. Ms. Iarrobino stated that this was not a case of children having a negative reaction to separation and divorce but rather the children were responding to previous emotional and verbal abuse that had been directed to them by Mr. Valente as well witnessing Mr. Valente treat Ms. Iarrobino in a similar manner.

Mr. Valente has shown some openness to clinical interventions, although he remains steadfast in his view that Ms. Iarrobino is alienating the children from him which leads Mr. Valente to question the validity of the concerns that the children has raised about him. Ms. Iarrobino has maintained that she is making every effort to support the children in their relationship with Mr. Valente but she has acknowledged that her efforts with Laviero have been ineffective. In addition to taking away privileges like his mobile phone and television, Ms Iarrobino has asked that Laviero write reflection papers in response to a series of questions that are posed to Laviero. Laviero’s responses reflect his stated desire to not see his father, that his father was uninvolved with him and that his father is ill-tempered.

Laviero has shown a level of defiance to the current access order and frustration in being asked why he will not see his father. Laviero’s current depiction of Mr. Valente is all negative and void of a single positive experience with his father. Laviero appears to interpret clinical intervention as being a vehicle to force access upon him rather than engage in a series of dialogues that would allow him to express his concerns, allow his father to respond and address the stated concerns. Laviero’s current rigidity would need to be taken into account when considering how best to provide support to him and his family.

Both Sofia and Laviero have maintained that their father will act appropriately in the presence of others but will revert to being angry with them when no one else is around. The children question Mr. Valente’s motivation towards spending time with them and repeatedly depict him as someone who has challenges in managing his anger. I note that there are differing depictions from Mr. Valente and Ms. Iarrobino as to the children’s resistance and/or refusal to see Mr. Valente. Each parent has placed the blame on the current state of familial relationships on the other and the success of further clinical intervention would be limited until they each consider how their contributions to the current state of affairs. Such an acknowledgement by the parents would assist their children as they remain skeptical of their father’s intentions and effectiveness of third parties in addressing the challenges faced by them and their parents.

28The evidence shows that there was a call between Ms. Goldhar and both counsel on Sept 24, 2020 because of her concern about the children’s well being. She recommended that the children undergo psychological assessment with Dr. Daniel Fitzgerald, because she was concerned about Laviero’s accusations about her being biased.

29In response to Mother’s inquiries, Dr. Fitzgerald explained his role:

As I understand it, you would like to refer your children Laviero and Sofia for psychological assessment. This involves a series of appointments to conduct clinical interviews and psychological tests. The tests include a standardized measure of intelligence, academic achievement levels, behavioural functioning and social-emotional functioning. I understand that the assessments would be taking place within the context of a broader section 30 assessment. However, the purpose of the assessment would not be to address issues pertaining to the custody and access matters per se. Rather, Ms. Goldhar has requested the assessments in order to further understand the children's psychological functioning from an objective perspective.

Tests To [sic] be administered would include the Wechsler Intelligence Scale for Children-Fifth Edition, the Wechsler Individual Achievement Test-Third Edition, Behaviour Assessment System for Children-3, and any other tasks that are deemed to be relevant. It should not be expected that the testing would provide a definitive answer to the question of parental alienation or estrangement, so I don't want there to be any misapprehension about the purpose of the assessment or to cause an unrealistic expectation that this assessment would resolve such a question.

Psychological assessment is a lengthy process that can be stressful and straining for the client and there is considerable expense. If you would like to discuss the matter further, we can arrange a telephone conversation. In the meantime, I am attaching a retainer agreement for you to review.

30The Mother has paid the required retainer for Dr. Fitzgerald, but the Father refuses to do so.

31Sofia’s first overnight parenting time with the Father was scheduled for the weekend of October 3 to 4, 2020. It did not go well. Sofia would not get out of the car, and the Mother was filming the event. Sofia stayed in the car over two hours, steadfast in her refusal. The Mother sent numerous emails to the Father, copying Ms. Goldhar and Mr. Theoduloz, asking for the Father’s help or telling him they need to work together, as a “unified front”. Sofia refused to stay with the Father, so no access took place that weekend, not even the usual Sunday daytime access.

32Howard Irving wrote to Ms. Goldhar again on October 8, 2020. In this letter he stated:

You may recall when we wrote to you regarding your request from us as to how we felt with regards to overnights visits with Sophia and Orazio. I have attached that letter for your reference. Our position has not changed.

I wanted to bring you up to date regarding my therapy sessions with Orazio. Orazio contacted me after Merrill and I stopped meeting with the family in May 2020. We terminated our therapy sessions with the family at that time as we were making little progress with the access arrangement between Orazio and Sophia.

Since that time, I have been meeting with Orazio for individual therapy sessions. The sessions have focused on helping him cope with what has been a very difficult situation not being able to have a normal visiting schedule with his children. His frustration for the most part is that it has been approximately 8 months since the section 30 assessment started and he has been anxiously waiting for the final report. Understandably this has been extremely difficult for him. I believe he is handling his frustration as best as possible and showing signs of resilience to help him deal with this difficult situation.

In my sessions with Orazio, I feel he has made good progress in realizing that he has to continue having good coping skills regarding his frustration of not being able to see his children.

33On October 8, 2020, Ms. Goldhar wrote to both counsel and states, inter alia:

I am recommending that Mr Valente and both his children engage in therapeutic contact. This is not supervised access nor formal reconciliation therapy, rather the focus provides a road map for developing interventions to help parents improve their parenting skills and their relationships with their children. Therapeutic contact is a valuable resource to educate parents and help them to better know and respond to the needs of their children. This approach will enhance parental capacity by supporting and strengthening skill and knowledge in areas such as sensitive parenting and positive parenting practices. This includes working with both parents to ensure that thy are both working towards a healthy relationship with the children. The purpose of this recommendation is for therapeutic contact to inform the process in a safe manner, allowing for contact between Mr. Valente and both of his children to take place in a coaching and supported manner by a professional, following a period of no contact between Laviero and Mr. Valente. There is a cost associated with therapeutic contact services and this cost should be shared equally between the parents.

34The following week, the Father communicated with the Mother’s counsel, indicating that Mr. Theoduloz would not be effective and does not have the necessary expertise. He suggested they use Dr. Irving and Ms. Barber. The Mother would not agree to a change.

35For the next access weekend, the Father sought the assistance of Mr. Theoduluz. They decided that the transition would be after Sofia’s dance class at 11:00 a.m., when the Mother was not present. Again, Sofia refused to go. Even with the assistance of Mr. Theoduluz, who came to speak to Sofia, she would not leave the dance studio until 3:00 p.m., when Mr. Theoduloz announced he was leaving. Left with no other choice, Sofia went with the Father. They apparently enjoyed a wonderful weekend, and Sofia was returned Sunday evening. I accept that it was a successful visit, once it got going, despite the Mother’s protestations to the contrary. The Mother’s subsequent commentary on how the Father spent this weekend with Sofia was out of place and inappropriate.

36Unfortunately, following this weekend, Mr. Theoduluz felt he could no longer be of assistance. In his letter of October 16, 2020, he states, inter alia:

In my letter of September 20, 2020, I shared the concerns reported to me by each of the parents and the children. I noted that Ms. Iarrobino and Mr. Valente acknowledged that their communication with one another was poor. I also shared that Ms. larrobino's and Mr. Valente's depictions of why the children refuse to see him differ starkly. I noted that the success of any clinical intervention would be limited until each parent could reflect on their respective role regarding the current state of familial relationships.

On October 10, 2020, I spent several hours providing intervention and support to Mr. Valente, Ms. Iarrobino and Sofia. Mr. Valente was able to exercise his parenting time with Sofia which included an overnight visit. The events of that day have not lessened the concerns that Ms. Iarrobino and Mr. Valente have towards one another and may have only served to reinforce the views held by each parent. Ms. Iarrobino maintains that the children's refusal/resistance to see Mr. Valente is justified due to how Mr. Valente has treated the children and herself. Mr. Valente continues to regard the refusal/resistance as non-justified and the result of alienation Ms. Iarrobino has engaged in.

The aim of therapeutic contact was to help Ms. Iarrobino and Mr. Valente improve their parenting skills and their relationships with their children. The goals of the proposed intervention are sound and if actualized could serve the needs of the children and parents well. Both parents are unable to move from the position that they each hold as it relates to the cause of the children’s refusal to see Mr Valente. The rigidity expressed by the parents is also seen in the children and the needs of this family would be best served through a more intensive clinical intervention that I am unable to provide at this time It is for this reason that I will be ending my involvement with Valente/Iarrobino family effective immediately.

37Following this report and his resignation, Ms. Goldhar wrote to both counsel on October 20, 2020. The relevant parts of the communication are as follows:

Dear Mr. Viater and Mr. Ludmer,

As you are aware, your clients are entrenched in their positions of alienation and abuse. Meanwhile there are two children who are suffering and being exposed to high levels of conflict.

Regardless of their views of the cause of resistance, the solution remains the same. This family requires an intensive intervention with an Order that compels them to attend.

38In this same letter, Ms. Goldhar reviewed an email from the Mother, who stated that she and the Father should be a unified front and show the children they are on the same side. Ms. Goldhar commented:

It is my opinion that Ms. Iarrobino and Mr. Valente are not able to do this together without an intensive intervention. It is for this reason that I am recommending an intensive program for this family. The purpose of an intensive weekend is to provide parents and children with a focused, clinical intervention aimed at incorporating psychoeducational content, facilitated recreational experiences, and a combination of individual and family sessions. Often, these interventions are utilized to support a significant change to the residential schedule or the parent-child relationship. The therapists are able to provide a recommendation in this regard upon receipt and review of the necessary intake items and initial intake interviews.

As you are both aware, I have requested that the children undergo psychological assessments with Dr. Daniel Fitzgerald. I have concerns about the children and require further information in order to make meaningful recommendations.

39The following day, in response to a letter from the Father’s counsel, Ms. Goldhar sent an email communication to both counsel stating: “It is my view that this family requires a more intensive intervention. The intensive intervention is with Lourdes Geraldo and her associate Liza Ritchie. Compliance with the current Court Order is not an option.”

40She further clarified that “the parenting time ordered by the Court should be complied with. Given the issues it would be important to schedule this intensive intervention as soon as possible.”

41It appears that no other access visits have taken place since the weekend of October 10, 2020, not even for the day.

42After reviewing all 2000 pages of the extensive and inflammatory battling affidavits in this matter, I wholeheartedly concur with the opinions of Dr. Irving, Ms. Barber, Ms. Goldhar and Mr. Theoduluz. The parties are entrenched in their narratives. They are unwilling to consider the other’s position or their own role in the conflict. Is it any wonder that Laviero is also entrenched? What other behaviour has he had to model in the last year and a half? Is it any wonder that Sofia is in a loyal bind?

43Unfortunately, faced with the latest impasse, the parties are doubling down on their narratives. The Father is seeking an order of non-compliance. He is asking that I make a number of behavioral orders aimed at the Mother. The next step will be the seeking of a finding of contempt. He will no doubt seek a significant costs penalty and a change of residency of the children and perhaps even a police enforcement clause. The Mother is adamant that she is doing nothing wrong, that the children just do not want a relationship with their Father and she has tried everything to make them visit the Father. Matters are spiraling and this litigation is far from over.

Issue 1: Non-Compliance

44I must first determine whether the Mother has obeyed the Order of Dennison J. with respect to parenting time. If I find that the Mother has not obeyed the order with respect to parenting time for the Father, I must then determine what the appropriate consequences are, considering the specific requests of the Father and the remedies available under r. 1(8) of the Family Law Rules, O. Reg. 114/99. While the Order of Dennison J. was made only four months ago, it is necessary to consider the conduct of the parties for the last year as well.

45As stated by Chappel J. in Jackson v. Jackson, 2016 ONSC 3466:

62Contempt proceedings involving alleged breaches of orders relating to children raise unique challenges for judges. As in this case, there is often a dispute as to whether the problems with enforcement of access were attributable to the child’s refusal to comply or wilful and deliberate interference by the residential parent. The courts have struggled in the context of contempt proceedings relating to custody and access orders to achieve a balance between the importance of enforcing court orders and encouraging contact with both parents on the one hand, and considerations respecting the wishes of children and the need to ensure their safety and well-being on the other hand.

46The obligations of a parent to make sure that a child attend an access visit are as follows:

a) While a child’s wishes should be considered, when it is determined that it is in the child’s best interests that access take place, a parent cannot leave the decision to comply with the access order up to the child. A parent has a positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order: Godard v. Godard, 2015 ONCA 568, 65 R.F.L. (7th) 265, at para. 28;

b) Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. If a party does not take concrete measures to apply normal parental authority to have the child comply with the access order, a judge may infer deliberate and wilful disobedience of the order: Godard, at para. 29; Karar v. Abo-El Ella, 2016 ONSC 7926, at para. 17;

c) Mere encouragement is not sufficient. A parent is expected to use the same tools used when a child refuses to go to school or the dentist, such as withholding allowance or not going to hockey tournaments. The parent must try other methods short of having the police attend her house and physically removing the child: Godard, at para. 30; and

d) When the parties are unable to productively communicate, it is not the place of the access parent to suggest as to how the primary residence parent discipline the children. The access parent is not in a position to discipline the children. The responsibility is of the primary resident parent to ensure compliance and they must provide a coherent narrative to show how they attempted to comply with the order. The response must have specific facts, and not generalities: Michener v Carter, 2018 ONSC 2780, at paras. 34-36.

47The following principles, taken from Jackson, at para. 63, apply respecting a party’s obligation to promote compliance with a custody and access order:

a) A party cannot simply leave the questions of custody and access up to the child. To do so amounts to an abdication of parental responsibility generally and a breach of the party’s positive obligations under the order….

b) While it may become more difficult to compel a child to comply with a custody and access order as the child gets older, the obligation of a parent to actively promote compliance does not wane based on the child’s age.

c) In the case of access orders specifically, the custodial parent’s obligation in regard to access goes beyond simply accommodating it, making the child available for access and encouraging the child to comply. Rather, the parent must require that access occur and actively facilitate it.

d) Actively promoting and facilitating compliance with a custody and access requires the parent to “take concrete measures to apply normal parental authority to have the child comply...”. In determining whether appropriate measures were taken, the court should consider whether the custodial parent did the following:

i. Did they engage in a discussion with the child to determine why the child is refusing to go?

ii. Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?

iii. Did they offer the child an incentive to comply with the order?

iv. Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?

e) The determination as to whether the alleged contemnor has taken reasonable steps to require the child to attend visits will ultimately depend on the unique facts of every case. The analysis must take into consideration the child’s age, their growing opinions and the evidence regarding their emotional status.

f) The contempt remedy may also be available where the alleged contemnor has engaged in a history of conduct that has had the effect of generally sabotaging the custody and access order. For example, evidence that a parent has a history of intentionally frustrating or inappropriately suspending access, or negatively influencing a child against the other parent to the point that the child is refusing to comply with the custody and access order may lead the court to conclude that the party thwarted the order and may support a contempt finding. The challenge in these cases is to determine whether it is a true case of parental alienation or a situation of justified estrangement between the child and the parent. [Italics in original; underlining added; citations omitted.]

48As indicated, there has been some success with Sofia and the Father. There has been no success with Laviero. As indicated in Laviero’s reflection papers:

“I am prepared to stand my ground.” “I am not in any capacity willing to forgive my father.” “My expressed views have not been taken into consideration.”

49I have reviewed the affidavit evidence presented by the Mother, albeit untested. It describes the steps she has taken to compel compliance with the Dennison J. Order:

a) With respect to Laviero:

1. taking away his phone for several days, taking away television, restricting computer use solely to school, and taking away his video games, and taking away privileges with respect to having his friends come over on weekends (though no specific dates have been provided); the Mother claims the result is that Laviero becomes more determined to not visit the Father;

2. she made Laviero write down in “reflection papers” stating the reasons he does not wish to see the Father, which have been produced;

3. Attempted to coordinate a Zoom call between the Father, Laviero and Mr. Theoduloz, which was not pursued when Mr. Theoduloz resigned;

4. When the Father called to speak to Laviero, and Laviero would not accept the call, she left the phone on speaker and left the room so the conversation could take place anyway;

5. The Mother has invited the Father to attend at her home to visit the children;

b) With respect to Sofia:

1. She drives her to the Father’s house and waits for the Father to come out and get her;

2. She sends multiple e-mails to the Father asking for his assistance in getting Sofia out of the car; and

3. She has agreed to the involvement of Mr. Theoduloz to try to help Sofia with the access visits;

50In an email to Ms. Goldhar on October 30, 2020 at 10:28 p.m., the Mother wrote:

I need your help! I’m at a loss at how to make Sofia go see her father for parenting time. I told her she has to go and I already have her belongings packed up. She said she’s not going anymore and she said she even told Richard [Theoduloz] that on his last visit with her. I’m not comfortable physically pulling her by the arm and tugging her into the car.

I told the children there is a strong possibility that I may lose them to their father. They said that they’ll run away if that happens. NO matter what I say, and how I consequence them, they said they won’t leave the house to visit their father. They have complied with all the consequences and I feel I’m denying them activities that create childhood memories.

As for consequences, I have:

• Taken away technological devices (phone, computer, television);

• Sofia indefinitely cannot attend dance classes during visitation days

• Denied social outings with friends

• Laviero dislikes writing – asked a friend to create writing assignment. I then stopped consequencing [sic] Laviero based on Richardo’s opinion that consequences wouldn’t make an impact on Laviero

• Canceled bike rides

• Canceled family days (with grandparents, aunt & uncle)

• Suggested that Orazio come to the home on visitation days

• Had Sofia clal [sic] her father and then had both kids return their father’s call to them

51The Father disputes this evidence. He submits that the Mother simply asking the children if they want to go, or simply driving them to the Father’s house and doing nothing to transition care, is not satisfaction of her obligations under the court order. He is adamant that she is not properly parenting the children because they are not attending access visits.

52I have also considered the involvement of the professionals involved in this matter and their comments about the efforts of the Mother and Father to facilitate and encourage access in general, and compliance with the Dennison Order.

53In December 2019, Dr. Helen Radovanovic helped the parties negotiate the Interim Separation Agreement, which contained a specific provision that stated that if Laviero did not attend, it would not be considered a breach by the Mother. This was an agreement, not something imposed on the parties.

54In February 2020, both parties consented to the Order of Conlan J. regarding ongoing access. At that time, both parties agreed to the involvement of Dr. Irving and Ms. Barber to assist the Children with access, given their difficulties to date. The parties also agreed to appoint Ms. Goldhar and cooperate with her.

55In the letter from Dr. Irving dated June 7, 2020, it is recognized that Sofia was in a loyalty conflict, and that the Father was acting appropriately. It does not offer an opinion about the Mother’s conduct, just that access with Sofia should expand.

56In Ms. Goldhar’s report of August 10, 2020, she states:

Ms. Iarrobino has repeatedly stated that if the children want more time, she will support them, however, it is my assessment that Ms. Iarrobino will not encourage or facilitate more time because her children do not want it and she takes direction from her children. My concern, however, is that the decision to see a parent is not made by children. It is imperative that both parents support the children to have a healthy relationship with both their mother and their father.

Ms. Iarrobino has also expressed that she does not feel her children are safe in Mr. Valente’s care. Both Ms. Iarrobino and Mr. Valente completed psychological testing with Dr. Daniel Fitzgerald. According to Dr. Fitzgerald’s report, an analysis of the results does not reveal any tendencies, behaviours or belief systems that would suggest an elevated risk for Mr. Valente to cause harm to a child. Mr. Valente may have tended to be more authoritarian than authoritative in his parenting approach.

57In the same letter though, it indicates that the Father needs help with his relationship with the Children. This led to the recommendation of Mr. Theoduloz for “therapeutic contact”, which was incorporated into the Dennison Order. The Father was doubtful of Mr. Theoduloz’ effectiveness almost immediately.

58On October 16, 2020, Mr. Theoduloz made it clear that the main roadblock in successfully expanding access was the Mother and Father’s starkly contrasting theories as to why the children will not visit the Father, which is even more entrenched. The only suggestion he could offer was an intensive therapeutic approach, which he could not provide.

59Faced with the access challenges to date, Ms. Goldhar is now recommending psychological testing of both Children by Dr. Fitzgerald and then a more intensive therapeutic programme. The Mother is agreeable, but the Father is resistant.

60Whether this is a situation of alienation on the part of the Mother, or a historically poor relationship with the Father, neither finding can be made without the assistance of a full trial: Wright v. Tolchard, 2020 ONSC 7139, at paras. 64-65. While the evidence of the parties is conflicting, it is clear that in addition to the efforts of the Mother, there have been a number of professionals trying to facilitate access, with little or no success. At least two professionals have resigned all together. In light of this, it is difficult to lay the blame solely at the feet of the Mother, which is what the Father wants this court to do.

61Accordingly, based on the uncontradicted evidence and the efforts and opinions of at least five different professionals, I am not satisfied that I can find, on the balance of probabilities, that the Mother is not complying with the Dennison Order.

62With respect to Sofia, access was going well until overnight access started. She agreed to the assistance of Mr. Theoduloz to help with the overnight access. He was successful on the second weekend, but unfortunately, he resigned. Ms. Goldhar and Mr. Theoduloz have recommended an intensive therapeutic programme. Ms. Goldhar also needs psychological testing. The Mother has agreed to this. Perhaps, with the assistance of Ms. Barber and an intensive programme, access will resume again and expand.

63With respect to Laviero, none of the experts involved have provided an opinion that the Mother is deliberately trying to thwart access between the Father and Laverio. Not only has she tried various disciplinary measures, but both Dr. Irving and Mr. Theoduloz have tried unsuccessfully, to promote access between Laviero and the Father. Again, the only suggestion now is the assessment by Dr. Fitzgerald and the intensive therapeutic programme.

64The therapeutic professionals involved have been moving through the menu of approaches they utilize in high conflict matters. First, they tried closed counselling. Then they moved to family counselling with a different counsellor for each child. They then recommended therapeutic contact, as a way to facilitate a regular parenting schedule with the Father. All have failed. The last item in their toolbox is intensive reintegration.

65It is the opinion of both Mr. Theoduluz and Ms. Goldhar that this last step is the only step left available to them. They all agree that greater access between the Children and the Father is appropriate. They have no concerns about the well-being of the Children in the Father’s care. Their concerns are about the extent of the fracture and what can be done to repair it. The professionals have not laid the blame of the fracture at the feet of either the Mother or the Father. Their focus is on the Children, which it should be. They observe though, that it is the dispute between the Mother and the Father, which has become further entrenched since separation, that is the main impediment to the Father’s relationship with the Children.

Issue 2: Therapy

66The reports of Ms. Goldhar and Mr. Theoduloz are clear. Despite their recommendation, and hope, that therapeutic contact with Mr. Theoduloz would be effective, it was not. Both he and Ms. Goldhar agree that a more intensive approach is necessary.

67Given that the Order of Dennison J. was “temporary and without prejudice, and subject to any further court orders or changes that the parties may agree are in the children’s best interest and in consultation with Dr. Howard Irving and/or Ms. Meril Barber and/or Ms. Goldhar”, a variation removing the need for Mr. Theoduloz or a similar therapist is required.

68The current access order should remain in place, and the Mother is required to continue all reasonable efforts to get the children to attend. As it was successful before, Sofia should re-engage with Ms. Barber. All the professionals agree that more access is appropriate.

69It is also vital that Ms. Goldhar be permitted to finish her report. When this trial takes place, it will be extremely important that the court hear evidence that (i) provides recommendations regarding the best interests of the child, and (ii) to learn the views and preferences of the Children. This is the reason for the report of Ms. Goldhar. Ms. Goldhar must be allowed to finalize her report. To do so, she needs an assessment of the children by Dr. Fitzgerald, and recommends an intensive therapeutic programme. It is important that these steps be taken to promote access.

70I recognize that the Father does not want to move forward with Dr. Fitzgerald or any intensive therapeutic intervention. It clearly doesn’t fall within his narrative - that the Mother alone is responsible for the breakdown and is solely responsible for fixing it. Unfortunately, the only way this court can determine if there is alienation is to allow Ms. Goldhar to do her job and to have a full evidentiary record at trial.

71I will not order that the Mother attend therapy, although it would no doubt be beneficial. The steps that both parents take to address parenting issues will be considered by Ms. Goldhar and the professionals she hired to assist her. There is evidence that the Father has taken the appropriate steps. The Mother has not. This lack of effort on her part will no doubt be considered when the assessment is completed.

72The Father has also requested that I make detailed orders designed to force the Mother to behave in a certain way. There is already an order in place that the parties not discuss the litigation with the children and that they not speak negatively about the other in the presence of the children. Otherwise, I see no utility in making a number of behavioural orders that will be hard to monitor, harder to enforce, and will no doubt increase the risk of further compliance or contempt motions. Only those orders that respond to the statements of the professionals will be considered. I will also prohibit the audio or video taping of access exchanges, as this is not in the best interests of the Children.

Conclusion

73According, for the foregoing reasons, I make the following orders:

a) There is no finding of non-compliance, without prejudice to such a finding being made at trial upon a full evidentiary record;

b) There shall be no order for make-up time, without prejudice to such an order being made at trial upon a full evidentiary record;

c) The Order of Dennison J. dated August 20, 2020 shall be varied as follows:

1. Paragraph 1 shall be varied to state:

1. Commencing December 26, 2020, on a temporary and without prejudice basis, and subject to any further court orders or changes that the parties may agree to in writing, Laviero shall have expanded parenting time with the Respondent every Sunday from 10:00 a.m. to 7:00 p.m.;

2. Paragraphs 3 and 5 shall be struck;

3. Paragraph 6 shall be varied to state:

6. On a temporary and without prejudice basis, subject to any further court orders or changes that the parties may agree to in writing, Sofia shall have expanded parenting time with the Respondent as follows:

a. commencing December 26, 2020, and every alternate Sunday from 10:00 a.m. to 7:00 p.m.; and

b. commencing January 2, 2020 and every alternate weekend thereafter, Saturday from 10:00 a.m. until Sunday at 7:00 p.m;

4. All remaining paragraphs of this Order remain in full force and effect;

d) The children shall undergo psychological assessment with Dr. Fitzgerald, as suggested by Ms. Goldhar, the cost of which shall be divided evenly between the parties;

e) The parties shall cooperate with Ms. Goldhar and participate in the intensive therapy programme with Ms. Geraldo, or with whomever Ms. Goldhar or Ms. Geraldo recommend, the cost of which will be divided evenly between the parties;

f) Until which time the intensive therapeutic programme starts, the parties shall re-engage Ms. Barber to assist Sofia in resuming access with the Father;

g) Paragraph 11 of my endorsement of November 10, 2020 remains in full force and effect;

h) Neither party shall discuss with the Children, or with another party in the presence of the Children, present or past legal proceedings, or issues between the parties related to present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the Children, or regarding conflicts between the parties relating to parenting issues;

i) Both parents are to encourage a relationship between the Children and the other and indicate to the Children that they encourage this relationship;

j) The Children shall not be used as conduits for inter-parental communications;

k) Neither parent will, or permit their friends and family to, or suggest, encourage, acquiesce in or permit the Children to, video and/or audio record the other party during access or transitions;

l) As per paragraph 7 of my endorsement of November 10, 2020, no further motions are to be brought without my leave, which can be obtained by writing to my judicial assistant sara.stafford@ontario.ca; any such request shall be no more than 2 pages, single sided, and must be copied to the opposing party;

m) The parties are encouraged to resolve the issue of costs between themselves. If they are unable to do so, the Moving Party Respondent shall serve and file his cost submissions no later than 4:30 p.m. on January 21, 2021, limited to 2 pages, single sided and double spaced, exclusive of Costs Outline and Offers to Settle; the Responding Party Applicant shall serve and file her cost submissions, with the same size restrictions, no later than 4:30 p.m. on February 5, 2021. Any reply submissions by the Respondent shall be served and filed no later than 4:30 p.m. on February 12, 2021, with the same size restrictions.

n) The remainder of the motion is dismissed.

Fowler Byrne J.