Court File and Parties

COURT FILE NO.: FC-19-1222 DATE: 2020/12/18 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: J.D., Applicant AND N.D., Respondent

BEFORE: Mackinnon J.

COUNSEL: Sarah Giamberardino, for the Applicant Fan MacKenzie, for the Respondent

HEARD: November 17, 2020

Endorsement

[1] The applicant father’s motion for parenting time was first scheduled to be heard in November 2019. It did not proceed because insufficient time had been scheduled. A temporary without prejudice order was made allowing him two short evening visits every week and one overnight visit during alternate weekends. A date set for February 2020 was taken up with submissions on evidentiary issues. That ruling is found at 2020 ONSC 1674. The substantive issues in the motion would have been heard on April 6 but for the suspension of regular sittings of the court in response to the COVID-19 public health crisis.

[2] At that time the mother opposed any increase in parenting time for the father. She wanted the November order to remain in place until the completion of a parenting assessment which was to commence in June.

[3] Before the father’s motion had been re-scheduled by the court, the mother brought an urgent motion to remove his overnight parenting time. Her motion was based on statements made by the children containing very inappropriate sexual content. The mother submitted this must have originated from the father and she worried he could be grooming them for later sexual contact. The father denied the allegations. His view was that she was fabricating a narrative to limit his contact with their children. The urgent motion was dismissed. See J.D. v. N.D., 2020 ONSC 2448 at [85]:

“On the totality of the evidence now available E.’s statements are not sufficiently reliable to establish her father as the person who has exposed her to inappropriate information about sexual matters that is well beyond her years and stage of development.”

[4] When the father’s original motion came back on in July the mother again took the position that the status quo should remain in place until the assessment was complete. Indeed, without the assessment the court was no better able to determine the factual issues surrounding the allegations of sexual impropriety. The father’s request to lengthen his Tuesday and Thursday evening access was allowed. The balance of his motion was adjourned until the assessment was complete. See J.D. v. N.D., 2020 ONSC 4637.

[5] The motion was scheduled for November 17 by when the assessment was expected. Dr. Horvath, C. Psych was the assessor. Her 112 page report was delivered on November 10, 2020. It is based on extensive clinical interviews and testing of both parents, clinical interviews with the children, observational home visits, interviews of many collaterals and an extensive document review. Neither party pursued an adjournment of the motion although it was available to them. Neither party delivered additional materials or took the opportunity presented to question Dr. Horvath as part of the hearing.

[6] Accordingly, the only new material is the section 30 assessment. I will not repeat the review of materials and conclusions reached in my previous endorsements, rather adopt and rely upon them in my consideration of the father’s motion and the mother’s opposition to it.

Positions of the Parties

[7] Both parents are willing to accept some of Dr. Horvath’s recommendations on a temporary basis. These are included in my order.

[8] The father’s main point of departure from Dr. Horvath’s recommendations is to accelerate the stepped plan she recommended for increasing his parenting time so that it would be completed in eight rather than twelve months. He submits implementing Dr. Horvath’s parenting plan now on an accelerated basis would be best for the children, would make up for lost time and guard against future systemic delays.

[9] The mother does not agree with Dr. Horvath’s parenting recommendations. She seeks dismissal of the father’s motion and proposes the parties proceed to questioning, including to cross examine Dr. Horvath before trial if permitted, and then to a settlement conference. The mother submits there are too many factual disputes and serious credibility issues that must be resolved before the reliability of Dr. Horvath’s report can be tested.

Use of the section 30 Assessment on the temporary motion

[10] Grant v. Turgeon, [2000] O.J. No. 970 (S.C.J.) is authority for the propositions that the status quo will generally be maintained on a temporary motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests and that an assessor’s recommendations ought only to be acted upon before trial in exceptional circumstances where immediate action is mandated by the report.

[11] Despite her earlier position that no change to the father’s parenting time should occur until the assessment was complete, the mother relies upon Grant v. Turgeon to urge that the interim without prejudice access ordered on November 17, 2019 remain in place until trial.

[12] Judicial notice may be taken that over the past twenty years the knowledge of the risks for children exposed to parental conflict and family violence has expanded. Evidence of actual harm, ongoing risks and long term consequences is also before the court.

[13] On at least three occasions commencing in 2016 the Children’s Aid Society of Ottawa has verified child protection concerns in relation to the risk of and actual emotional harm to these children arising from their exposure to adult conflict. Dr. Horvath also refers to significant immediate repercussions for the children arising from their exposure to parental conflict. She describes seven year old O. as:

“particularly vulnerable to long term consequences on her physical and mental health as a result of exposure to the chronic stressor of her parents’ ongoing conflict. Something that is already evident in her inability to identify or articulate what makes her feel basic emotions such as sad and angry, pointing to little awareness of her inner world and experiences that mirrors her parents’ difficulties with this.” (Horvath p. 103).

E., now five years old, “is showing signs of being affected by the stress of the family situation in the form of mood and anxiety difficulties.” (Horvath p. 103).

[14] The long term adverse consequences of prolonged exposure to family violence as a child to the future adult and parent are also evident here as is the impact on that individual’s own children in the form of generational repetition of family dysfunction. Both parents were exposed to family violence and were victims of abuse during their childhood and youth. Dr. Horvath refers to this in detail throughout her report but tangentially in her critique of highly aligned therapists and polarized family members:

“The involvement of highly aligned therapists only adds to the problem and has been a confounding factor that has exacerbated the problem and made more difficult to resolve. These parents, and their children, do not benefit from having advocates masking as therapist who reinforce their persecutory anxieties. Rather than ameliorating the family’s difficulties, this leaves the parents less capable of transcending their origins and its repetition in their marital and post-marital relationship. This parallels the finding in this assessment of aligned and polarized extended family members that vilify the ex-partner and view the situation as a remake of an old movie of family dysfunction and abuse that characterized the parents’ respective childhoods. (Horvath p. 105; Emphasis added)

[15] Dr. Horvath recommends specific education and therapy for both parents to gain understanding of how their past traumas negatively impact their parenting and their children, to help break the cycle of intergenerational trauma and to learn about the impact of parental conflict on their children. (Horvath p. 108.)

[16] Family court decisions are replete with examples of negative outcomes for children mired in high conflict parenting disputes. See N.H. v. J.H., 2017 ONSC 4867 at [1]-[7], [12]-[21] for a description of a four year procedural history leading up to a lengthy trial. Subsequently, when the oldest child was fourteen, and suffering from debilitating obsessive symptoms related to sever anxiety, her contact with her father was suspended at her request. See N.H. v. J.H., 2018 ONSC 4436.

[17] The legal landscape has also changed since Grant v. Turgeon, which itself followed an earlier decision in Genovesi v. Genovesi, [1992] O.J. No. 1261. While its traditional test is still applied in some cases, for example Scutt v. St. Cyr, 2020 ONSC 1159 (child significantly impacted by parents’ inability to make timely decisions for child’s mental health); and Matteliano v. Burt, 2018 CarswellOnt 12417 (S.C.) (countless unsubstantiated allegations of abuse giving rise to parental alienation), other cases say that the jurisprudence has evolved. In Bos v. Bos, 2012 ONSC 3425 Mitrow J. stated at para. 23 and 27:

[23] … In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi. …

[27] It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.

[18] The court in Bos v. Bos at para 26 set out the following alternative factors to consider in lieu of requiring exceptional circumstances:

a. How significant is the change that is being proposed as compared to the interim status quo? b. What other evidence is before the court to support the change? c. Is the court being asked to consider the entire report and recommendations, or only some parts, including statements made by children, or observations made by the assessor? d. Are the portions of the report sought to be relied on contentious and if so has either party requested the opportunity to cross-examine the assessor?

[19] Other decisions agreeing with Bos include Chelsom v. Hinojosa-Chelsom, 2020 ONSC 6926; Krasaev v. Krasaev, 2016 ONSC 5951; and Calabrese v. Calabrese, 2016 ONSC 3077.

[20] The facts here meet both tests. Dr. Horvath did recommend an immediate change to the father’s parenting time. There is evidence of emotional harm to the children. The changes proposed are gradual. Initially they would eliminate one weekly evening visit, change the remaining one into an overnight and add one overnight in each alternate weekend. The part of the report most central to the outcome of the motion addresses the allegations of sexual abuse. The court has considerable other evidence on this issue against which to weigh Dr. Horvath’s conclusion. The parties were well aware that the motion was adjourned specifically so that the assessment would be available, and they were given the opportunity to cross examine the assessor on the return date. See endorsement dated August 5 at 2020 ONSC 4637. On November 4 counsel were also advised of the court’s willingness to reschedule the motion into December so that the timetable for filing additional materials could be extended.

[21] The mother accurately submits that there are many factual disputes between the parties reflected in the assessment. The question for the motion court ought not to be whether it can determine all the factual disputes between the parties, but whether it can determine essential facts showing whether or not a temporary change in the children’s living arrangements is in their best interests.

[22] Delaying a change in residential arrangements until trial is not always appropriate. Making a change sooner can be the better option. Courts have found this to be true in parental alienation cases. In Hazelton v. Forchuk, 2017 ONSC 2282 the court said:

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

See also Ma. M. v. A.W.M., 2019 ONSC 2128 where a finding of alienation was made at the interim stage and residential changes were made to address it.

[23] In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and / or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial. A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.

Allegations of Sexual Abuse

[24] Dr. Horvath’s clinical inquiries did not lead her to conclude that any of the allegations of sexual impropriety had occurred. She considered the three primary ways that reports of child sexual abuse are investigated: medical examinations, forensic child interviews, and observations of children’s sexual behaviours. The medical examinations were normal. There were no reports from any of the multiple sources she had of either child displaying sexual behaviours incongruent with their age. The forensic interviews of the children were inconclusive.

[25] The children have been interviewed about these allegations by two different CAS workers at least three times. Both followed proper forensic interviewing procedures. The allegations were investigated by a detective in the Sexual Assault and Child Abuse unit of the Ottawa Police, experienced in investigations relating to child sexual abuse. A pediatrician, Dr. Sadana, also interviewed the children. They were seen for a medical assessment at the Division of Child and Youth Protection at the Children’s Hospital of Eastern Ontario (CHEO). Dr. Horvath also interviewed the children employing forensic child interviewing.

[26] Dr. Horvath stated at pages 103 to 104 that:

The net result of these investigations are that the children have made disclosures to their mother, maternal extended family members, their family doctor (in the presence of their mother), their pediatrician, and CAS workers, Ms. Umutoni and Mr. Fletcher. The disclosures to [the mother] and her family members obviously cannot be verified. When the family doctor, Dr. Brown met with E. and O. privately (and separately), neither made any disclosures related to sexual abuse. …

The interview and accompanying disclosures to the pediatrician, Dr. Sadana, are highly problematic as the interview was extremely suggestive, used biased questions, and was done in the presence of [the mother]. Thus, these disclosures cannot be considered credible. The disclosure made to the first CAS worker, Ms. Umutoni, was made in a way that could point to coaching or suggestion in that it was made spontaneously in response to an unrelated question. Neither child made any disclosures to the second CAS worker, Mr. Fletcher, during his first investigation. During the second investigation conducted by Mr. Fletcher, O. made a disclosure that her father pulled down her underwear and “tapped it eight times” and stated that she was confused if this happened and thought she may have dreamt it. In the same interview, O. reported to Mr. Fletcher that [her mother] was still asking her questions about [her father’s] house. When I met with the children, E. made no disclosures to me in relation to sexual abuse, but she did make a statement that what makes her scared is, “when daddy hurts us.” O. shared that she knew about a yucky thing that had happened to E., that she had “licked dad’s penis,” but stated that she had not witnessed this and thought it was a dream. By the point that I was meeting with the children, they had already been questioned multiple times, by multiple people and some of that questioning had been suggestive. Finally, the police, after interviewing both [parents], relevant collaterals, and [the father] having a negative polygraph test decided there was not enough substance to the allegations to put the children through an interview and did not interview them, closing the file as unfounded. The medical assessment conducted at the Division of Child and Youth Protection at CHEO was normal.

[27] Dr. Horvath’s conclusions on this issue were also informed by other aspects of her assessment, including the significance abuse has in this family. She said it “is so powerful in the parental psyche that all roads seem to lead to it”. (Horvath p. 105.)

[28] Dr. Horvath recommended that:

“The best course of action in this case is to ensure that the children are highly visible through involvement in their community by attending school and extra-curriculars and that they have as many safe adults in their lives as possible to increase the availability of safe people to whom they could make a disclosure should this be needed. It is imperative that one of these people be a therapist and that the therapy be protected by the court including that neither parent can unilaterally withdraw consent or discontinue the therapy.” (Horvath p. 105).

The Parents

[29] Both parents were raised in a dysfunctional family. Both witnessed and were victims of family violence and other abuse. Dr. Horvath summarizes:

“As evidenced in the psychological testing and the accounts of Mr. and Mrs. D. and others, both brought significant psychological legacies from abusive childhoods with them into their relationship. These shared experiences likely were a large part of what drew them to each other, a sense of a shared traumatic past and a shared desire to escape their families. …

Regrettably, this shared history had left both of them emotionally underdeveloped and prone to repeat the very patterns they were desperate to escape. ... Both carried with them considerable mistrust and apprehension of others, while also desiring something different, something safe and connected. …

As survivors of childhood abuse, as is common, both were in many ways psychologically still operating as abused children. Finding themselves in what would have psychologically felt very familiar, but in the absence of an abusive parent/authority figure, the other became the abuser and both returned to a dynamic they knew.” (Horvath p.102).

[30] In relation to family violence, both parents acknowledged to Dr. Horvath that there was frequent conflict in the marriage. Both admitted to yelling at times. Despite the extensive allegations and denials on both sides it was clear there was significant volatility and conflict during the marriage and that for her part, Ms. D. was fearful and intimidated in the relationship, whereas the respondent saw their conflicts as mutual between equals. Both felt “alone, rejected, abandoned and betrayed” by the other. (Horvath p. 102).

[31] The extent to which these spouses experienced their relationship and family life so completely differently is remarkable. One of the steps taken by Dr. Horvath was to provide each of them with a draft of her report leaving out the conclusions and recommendations, psychological testing and home observation sections. The parents strongly disagreed with each other’s historical account to the point they both contended that the other had “stolen their position and experience in the relationship, in which the other was an abuser, and presented it as their own”. (Horvath p 97).

[32] Dr. Horvath’s view was that the mother was not reflective and did not take responsibility for her current life events. The father had not developed his introspective abilities and was not particularly self-aware.

[33] She thought that both parents had become healthier, more attuned parents since their separation. But she concluded they could not co-parent and had questionable ability to support the children’s relationships with the other parent. A goal for each of them would be to refrain from anything other than active listening if the children spoke about the other parent. Dr. Horvath noted this had challenged both parents at times and had been “especially problematic for [the mother who] … has been frightened for her children’s wellbeing, but this has also led to her having difficulty keeping perspective and not jumping to conclusions. Conclusions, that can easily become self-reinforcing in the interaction with anxious children caught in a divorce war.” (Horvath p. 106-107).

[34] Dr. Horvath noted concerns with both parents parenting abilities. Both have used physical discipline. This has been reported to and verified by the CAS. E. told Dr. Horvath that it makes her scared “when daddy hurts us” and that she does not like “stuff that are mean” at her mother’s house but would say no more about either. E. told Mr. Fletcher that her mother had hit her on her head with a book. O. told him that she is not afraid of her father, except a little bit when he gets frustrated.

[35] Dr. Horvath also wrote that both parents had by reason of their attitudes to each other at times lost their focus on their children’s actual needs. She concluded the children had clearly been, and continue to be, exposed to the conflict between their parents, despite their parents no longer having any direct contact with each other. This was consistent with what the children told Mr. Fletcher. O. told him her mother constantly questions them about their father, asking whether he has hit them or touched them, and speaks negatively about him to the girls. O. said this gives her an upset stomach.

[36] Dr. Horvath wrote that both parents were generally aware of the developmental and age appropriate needs of their children, as well as what each child’s particular needs were.

The Children

[37] Dr. Horvath observed that both children were happy and comfortable in the care of each parent. During her visit in each home she found them to be at ease with each other, polite and friendly throughout. Dr. Horvath observed the father was able to calmly and effectively redirect the children as necessary. At the mother’s home there was laughter a number of times. Both girls became upset at some points and their mother was able to effectively support them to re-regulate.

[38] Mr. Fletcher is an experienced child protection worker. He interviewed each child separately at their father’s house in connection with allegations of sexual abuse made by the mother against the father to the Ottawa Police in July 2020. Although he interviewed each child alone while the father took the other child outside, he did have the opportunity to observe them with their father and reported they were both comfortable around him.

[39] Dr. Horvath described O. as being sensitive and said she could be easily emotionally dysregulated and hard to soothe, with somatic complaints. Her mother described O. as having a number of difficulties in the clinical range whereas the father saw O. as being in the normal range but with some difficulties and with anxiety in the form of somatization. O. may have a learning disability and is on the list for a psychoeducational assessment through her school.

[40] In interview with Dr. Horvath O. said she did not think that she gets scared. She could not identify anything she did not like about either of her parents’ homes. When asked about her preference for living arrangements, she responded she would like one week with her mother and one week with her father because “that’s equal”. Her play in the sand tray graphically showed her parents competing in a race up a mountain. O. took turns letting them win, “to be fair” (Horvath p.65). She said it would be good to have more time with her father and the puppy at his house. Dr. Horvath asked O. if there was anything, she could do to help make things easier for her. O. said yes, if my sister stopped fighting with me all the time. Dr. Horvath asked O. if there was anything she was struggling with. O. replied, yes, food. (O. is a picky eater). Dr. Horvath also asked O. whether anyone else in her house was struggling with anything. O. answered, no.

[41] E. is more outgoing than her sister and is generally happy. Based on her parents’ descriptions E. seems to be more psychologically resilient than her sister. E. told Dr. Horvath that she likes her sister and they get along easily and fight. She said there is nothing she worries about. Dr. Horvath asked E. what makes her scared. E. replied, “when daddy hurts us.” But she would not talk about this. Dr. Horvath brought it up at the next interview; E. again would not talk about it. E. was able to say what she liked at each parent’s home. She said what she did not like at her mother’s is “stuff that are mean” but would not tell Dr. Horvath more about this. What she did not like at her father’s house was “that it is familiar” and explained she does not like the “familiar stuff”. E. also said that there are not really rules at her mother’s and that at her dad’s she does not get into trouble seriously. E.’s stated preference for living arrangements would be to live at her dad’s. She said it is more fun there, they eat candy and she likes playing with the puppy.

[42] Both children also freely expressed wanting to spend time at both parent’s homes.

[43] Dr. Horvath recommended the children have their own therapist to provide them with a neutral space, for help navigating between their parents and in understanding their family and themselves. She recommended the therapist be given a copy of her assessment in its entirety and the opportunity to speak to her about it. Dr. Horvath referred to the experience of a registered psychotherapist who the parents had agreed would provide counselling to the children, but who withdrew following an appointment with the mother. This therapist felt Ms. D. would try to dictate the methodology and subjects covered in her sessions with the children to the point of interference with her exercise of professional judgment and expertise. The mother maintains she was not trying to be overly involved but only trying to ensure her children got the therapy they needed.

[44] Other recommendations made by Dr. Horvath include:

• the children would benefit from fewer transitions and being able to settle in at each household for a few days;
• given their ages they should not go too long without seeing either parent;
• a plan with no parental face-to-face contact would be ideal to minimize the children’s exposure to conflict and tension between their parents; and
• a schedule that increases the father’s time gradually, starting with the children spending somewhat more time with the mother in the short- term, but moving towards equalization of parenting time.

Analysis

[45] But for the allegations of sexual impropriety with the children, the father’s parenting time would have been increased by now. After CAS and police investigations, and at the conclusion of an in depth assessment by the clinical psychologist jointly retained by the parents, the allegations of sexual abuse have not been proven on a balance of probabilities. In addition to the inconclusive forensic interviews of the children, they have not displayed sexualized behaviours and have been seen to be comfortable and at ease with their father on a variety of occasions and by different individuals. Both children freely expressed the desire to spend time with both of their parents, and to spend more time with their father.

[46] In my August 5 endorsement at 2020 ONSC 4637 I said:

“On the other hand, by her own admission the mother has not complied with an important term of my April 22 order. My endorsement included the following provision at paragraph 87:

‘If any further statements with sexual content are made, the mother shall not ask the child anything about it at all but shall forthwith advise CAS and the children’s physician in writing of what was said. It shall remain in their discretion what if any steps they take in response.’

I included this term in response to evidence suggesting that the mother may have influenced the children and the difficulty this created for an investigation. At paragraph 43 I said, “In an investigative situation such as this one the point is for a trained and neutral investigator to have the opportunity to elicit information directly from the child independently of parental influence and according to recognized, standard investigative techniques.”

In an attachment to her updating affidavit the mother describes her detailed questioning of one child in relation to the child’s disclosure of sexual touching by her father.

I do not minimize the seriousness of allegations of child sexual abuse, but the fact is that given the outcome of the CAS investigation a finding that such has occurred cannot be made to the required standard of proof at this time. The mother’s questioning of the children as revealed by them to the CAS and in her own material continues to complicate the case.”

[47] The Horvath assessment reinforces these statements, including by her own observations of the children and information she received directly from them.

[48] It is appropriate that the temporary order continue the children’s primary residence with their mother. She was a stay at home mother during two extended maternity leaves. She also took on more of the child care responsibilities when she was employed outside of the home. Since the separation she has had the majority of the parenting time. The father did participate in the care of the children during cohabitation but not to the same extent as the mother. At times he was working 90 hour weeks. He has had comparatively less parenting time than has the mother since the separation, not by choice but a fact nonetheless. Given that history and the individual issues of each of the children and the father, it makes sense to increase his parenting time with them gradually.

[49] The parents own descriptions of their children also support the gradual approach to changing their residential arrangements. They both rated E. as demonstrating a tendency to react negatively when faced with changes in everyday activities or routines and as showing signs of anxiety. (Horvath p. 71). The mother described O. as overreacting to changes in routines and problems in establishing schedules. (Horvath p. 63). The father thought O. worries a lot and reported that she sometimes has panic attacks. (Horvath p. 68 and 69).

[50] The mother raised the concern that the father would not be able to manage the children effectively without losing control of his temper. Dr. Horvath’s observations of him with the children do not support this. Nor did the statements the children made to her except for one general reference by each child. The father has been in individual therapy between August 2016 and November 2017 and again since 2019. His therapist reported to Dr. Horvath that his self-regulation of his emotions has improved, and he has sought out parenting advice to learn how to deal with the children when their behaviours are challenging.

[51] The mother does not believe the father has sufficiently addressed his mental health issues. Her concerns date back to an incident in 2016 which may well have been a suicide attempt but that he continues to maintain was misadventure through mixing prescribed medications and alcohol. The father is, in Dr. Horvath’s opinion, significantly depressed. Dr. Horvath recommends he obtain “targeted support” for his depression. I agree that he should do so. I do not agree that his current depression means that his contact with the children should remain at its current level or that it cannot be increased as recommended by Dr. Horvath.

[52] The mother is not without her own personal issues. She seems to be angry, anxious, and critical of or at least not trusting, professionals who do not agree with her. Her mind seems closed to the possibility that the father could be an acceptable parent. Dr. Horvath recommends that she continue in individual therapy and although she does not explicitly say so, it may also be that the mother would benefit from changing to a less aligned therapist.

[53] I understand that the mother is worried the father may not be able to get the children to school on time or be able to care for them for the number of consecutive days Dr. Horvath recommended. I am not persuaded her worries meet the level of probability. Nor is the first increase in regular parenting time recommended by Dr. Horvath undue or immoderate. The children would be spending about 30 per cent of their time with their father. This level of contact is at the lower end of what may be regarded as standard contact by a non-residential parent.

[54] The mother also raised potential alienation by the father. Recently she has referred to him influencing the children with candy and the acquisition of a new puppy. Both girls mentioned liking sweets and the puppy. E. included these as reasons she would like to live with her father. Despite that, Dr. Horvath’s observations were that both children were happy and comfortable with their mother and enjoyed being with her. Sharing his fondness for sweets with the children may be misguided for health reasons but it is not creating a contact issue between the children and their mother. The mother is suspicious of the puppy, but the fact is the father did have a pet cat which recently died, and it seems he has now chosen a dog for a pet instead.

[55] E. also noted that her mother is the one who doesn’t have rules, not their father. This also seems inconsistent with a parent who is trying to win children away from the other parent.

[56] The children are too young for their stated residential preferences to be determinative. The key point taken from the views they expressed to Dr. Horvath is that they do want more time with their father.

[57] The mother also raises procedural objections based on wanting to question the father and Dr. Horvath before the assessment is relied on by the court. She wants to question the father first so that she would have transcripts of his answers to put to Dr. Horvath. This submission is weak in that many of the affidavits for the motion were filed in November 2019, and none have been filed since July 2020. There has been plenty of time to cross examine the father. The parties have known the assessment could be important to the determination of this motion. The mother herself took the position previously that the father’s parenting time should not be changed until the assessment was complete. Since August 5 they have known they would be given the opportunity to cross examine Dr. Horvath at the return of the motion. Before the assessment was released counsel were considering asking to push back the motion date. On November 4 they were advised of the court’s willingness to reschedule the motion into December to provide them with additional preparation time. Both counsel agreed to go ahead on November 17, without delivering additional material or cross examining Dr. Horvath on that date.

[58] Accordingly, I do not accept the mother’s submission that the motion should be dismissed for the procedural reasons relied on.

[59] I find that it is in the best interests of the children for the father’s parenting time to be increased on a temporary basis. The order that follows is based on Dr. Horvath’s recommendations with some changes, additions and omissions. I have kept the current commencement time for the father’s Saturday access rather the different time proposed by Dr. Horvath, simply to eliminate one schedule change. Last year the children spent the March Break with their mother. Rather than repeating that for this year as recommended or acceding to the father’s request that he have the full break this winter, the 2021 March Break will be divided in half between the parents as a temporary measure. I have limited the residential arrangements in the temporary order to the shorter term i.e. until final determination of the trial. I have included provisions to minimize the parenting decisions likely to be needed in that same time frame. Justice Kershman ordered counselling for the children in November 2019. It has only just started. Dr. Horvath’s recommendations with respect to the children’s therapist are well supported by the reasons for the delay, other than those related to COVID-19.

The Temporary Order

[60] The applicant’s regular parenting time shall be as follows:

a. Commencing in January: every Wednesday overnight (after school pick-up & Thursday morning school drop-off, or if school is not in session from Wednesday at 3.30 pm until Thursday at 9 am); and every second Saturday at 10.00 am to Monday morning school drop-off or if school is not in session until 9 am Monday. b. Commencing on the applicant’s first residential weekend on or after June 25, 2021: every Wednesday overnight (after school pick-up & Thursday morning school drop-off, or if school is not in session from Wednesday at 3.30 pm until Thursday at 9 am); and every second Friday after school pick-up to Monday morning school drop-off, or if school is not in session from 3.30 pm Friday until 9 am Monday. c. Exchanges that cannot take place to and from school shall take place at the Fernbank Walmart.

[61] The applicant’s holiday parenting time for the school winter vacation in 2020 shall be as previously ordered, namely:

• December 21 at 8.30 AM to December 22 at 5.30 PM.
• December 24 at 3 PM to December 25 at 3 PM.
• December 26 at 3 PM to December 28 at 3 PM.
• December 30 at 8.30 AM to December 31 at 3 PM.

[62] The school March Break in 2021 shall be divided equally between the parents with the first half being spent with the parent with whom the children are residing for the weekend leading up to the March Break.

[63] The school summer break commences on the Friday after the last day of school and ends on the Sunday before the return to school. Each parent shall have two one-week periods of uninterrupted time with the children during July and August, which week shall include his/her regular weekend. The applicant shall have her first choice of weeks in 2021. She shall advise the respondent in writing of her choices by February 15, 2021. The respondent shall advise the applicant of his choices by February 22, 2021. The balance of the summer school break shall follow the regular schedule.

[64] For any statutory holidays, long weekends or PD days occurring while this order is in force the residential parent shall have the additional 24 hours added to his/her regular weekend. This provision shall not apply during the summer if the children are with either parent for his/her uninterrupted summer vacation time.

[65] On consent, the following recommendations by Dr. Horvath are included in the temporary order:

a. The resident parent shall make day-to-day decisions. The resident parent shall advise the other of the diagnosis and treatment plan when a child is ill. b. If a child is ill in the morning and cannot attend school, the resident parent shall inform the other parent as soon as possible. Unless mutually agreed to otherwise, the ill child shall remain in the care of the parent who had care of the child in the morning. If it is a transition day, the ill child shall be taken to an agreed upon exchange location of the other parent by the resident parent at the time that school normally ends. c. If the school calls and asks that a child be picked up early, unless mutually agreed to otherwise, the party who is scheduled to get the children from school that day shall pick up the children from school and assume care as per the regular or holiday schedule. d. Both parents shall have photocopies of all legal documents pertaining to the children including passport and OHIP card. e. Both parents may volunteer at extracurricular activities and at the school although not at the same times. f. Mother’s Day and Father’s Day shall be spent with the respective parent no matter who is providing care on that weekend. If access is required, it shall be from Sunday at 10am until 4pm. g. Both parents shall ensure that the other parent has advance notice of all non-urgent appointments for the children and is provided with an update on the results within an agreed upon timeframe. h. When a parent travels without the children, that parent will provide a reliable telephone number to the resident parent in case of a child-related emergency or if the children want to contact the traveling parent. i. With notice in writing, the parents may travel with the children during their regular or holiday scheduled time with them, but the children shall not be removed from school to do so. j. The parents shall sign a travel consent letter for the authorities and the parents shall each have a notarized copy of this letter. In addition, the parents shall provide full itinerary information (i.e., dates of departure and return, location, accommodation name and address, flight or train number) to the other parent at least 30 days before departure. k. The travelling parent shall arrange for travel health insurance for the children when travelling outside of Canada. l. The respondent shall continue individual therapy focused on addressing his depression, past traumas and understanding how these have formed him and his parenting, and risk to negatively impact his parenting and children. m. The applicant shall obtain and review: the “CoParenting Conflict Playbook,” developed by Bill Eddy. n. The parties shall continue to communicate regarding the children via their respective lawyers.

[66] The children’s General Practitioner shall continue to be Dr. Elizabeth Brown. Their Dentist shall continue to be Dr. Faud Tanha. The children’s medical care shall be restricted to these professionals unless there is a medical emergency. Should an additional professional provide care or assessment of the special needs of either child, such as a school educational assessment, a parent shall forthwith communicate to the other parent all information which comes to his or her attention in this regard.

[67] The children shall continue to attend their current school while this order is in force. Either parent may register the children for an extra-curricular activity that only occurs during that parent’s parenting time and shall keep the other parent informed of the activity.

[68] The applicant shall continue to work in individual therapy on addressing past traumas and understanding how these continue to affect her and her parenting today.

[69] The respondent shall obtain a psychiatric referral forthwith from Dr. Brown to specifically address his depression. The respondent shall also obtain and review: the “CoParenting Conflict Playbook,” developed by Bill Eddy.

[70] A copy of Dr. Horvath’s report shall be shared with Ms. Sally Bleecker who is the therapist engaged to provide therapy to the children. Ms. Bleecker may consult with Dr. Horvath about her assessment and its findings. Neither parent may unilaterally withdraw consent or stop facilitating the children attending therapy with Ms. Bleecker.

[71] Ms. Bleecker may communicate with the court in regard to the parents’ compliance and behaviour regarding the children’s therapy provided she copies counsel for each parent at the time of any such communication. Unless ordered by a judge pursuant to A. (M.) v. Ryan, [1997] 1 SCR 157 or required by the therapist’s obligation to report to the Children’s Aid Society, and to that extent only, the content of the therapy shall not be admissible in evidence.

Process Moving Forward

[72] The case shall be placed on the trial list for the trial sittings in May 2021. I will continue to case manage procedural and substantive matters until trial. Another judge will be assigned to conduct the settlement conference.

[73] The settlement conference shall be scheduled for late February or March. If assistance is required to establish a suitable litigation timetable counsel may request a conference with me.

Costs

[74] Costs shall now be determined for the November 2019 motion and all subsequent hearings. Having regard to the number of events, each party may deliver up to ten pages in written submissions plus attached Bills of Costs and relevant offers to settle, if any. Submissions are due from the applicant by February 1, 2021, from the respondent by February 19, with a brief right of reply to the applicant, if necessary, by March 5, 2021.

Released: December 18, 2020 Mackinnon J.